SKADDEN, ARPS, SLATE, MEAGHER & FLOMLLP 4 TIMES SQUARE NEW YORK, NEW YORK 10036 | FIRM/AFFILIATE OFFICES | |||||||||||
TEL: (212) 735-3000 FAX: (212) 735-2000 www.skadden.com |
BOSTON CHICAGO HOUSTON LOS ANGELES PALO ALTO WASHINGTON, D.C. WILMINGTON | |||||||||||
BEIJING BRUSSELS FRANKFURT | ||||||||||||
| August 1, 2011 | HONG KONG LONDON MOSCOW MUNICH PARIS SÃO PAULO SHANGHAI SINGAPORE SYDNEY TOKYO TORONTO VIENNA | |||||||||||
Via EDGAR
Katherine Hsu
Office Chief
Office of Structured Finance
Securities and Exchange Commission
Mail Stop 3561
100 F. Street, N.E.
Washington, D.C. 20549
| RE: | CarMax Auto Funding LLC | |
| Amendment No. 1 to Registration Statement on Form S-3 | ||
| Filed July 19, 2011 (File No. 333-174968) |
Dear Ms. Hsu:
On behalf of CarMax Auto Funding LLC (“CarMax Auto Funding”), set forth below are CarMax Auto Funding’s responses to the comments of the staff of the Securities and Exchange Commission (the “Staff”) in the Staff’s letter to Keith D. Browning, dated July 29, 2011 (the “Comment Letter”), regarding the above-referenced Amendment No. 1 to Form S-3 of CarMax Auto Funding. The response references Amendment No. 2 to Form S-3 which CarMax Auto Funding filed with the Securities and Exchange Commission today. For the convenience of the Staff, the text of the Staff’s comments have been reprinted in italics below, followed by CarMax Auto Funding’s responses in regular print.
Katherine Hsu
August 1, 2011
Page 2
The Rescission Offer, Procedures for Brokers and Banks; DTC ATOP Account, page 7
| 1. | Delete the phrase “it is possible that” and the word “may” in the sentence beginning, “Ourinterpretation of the terms and conditions”. |
CarMax Auto Funding has revised the language in question to address your concerns. See page 7.
Material United States Federal Income Tax Consequences related to Rejecting the Rescission Offer and Continuing to Hold the 2011-1 Notes, page 13
| 2. | We note the statement “Except as discussed in the following paragraph, the 2011-1 Notesare not considered to have been issued with original issue discount”. The followingparagraph does not appear to discuss original issue discount. Please supplementallyprovide us with an explanation. |
CarMax Auto Funding has deleted the phrase that reads “Except as discussed in the following paragraph” on page 13.
Exhibit 5.1
| 3. | Please revise the third limitation in the second to last paragraph on page 2. It appears thatthe limitation on enforcement of the Indenture, including the phrase “but the inclusion ofsuch provisions does not affect the validity of the Indenture, taken as a whole, and theIndenture, taken as a whole, together with applicable law, contains adequate provisionsfor the practical realization of the benefits of the security provided thereby” containsinappropriate limitations to the opinion. |
The third limitation in the second to last paragraph on page 2 of the legal opinion has been deleted.
Exhibit 8.1
| 4. | Given the date restriction in the second to last paragraph, please file an opinion dated onthe date that the registration statement becomes effective. |
CarMax Auto Funding confirms that it will file an executed opinion dated on the date that the registration statement is declared effective.
Katherine Hsu
August 1, 2011
Page 3
| 5. | We note the last two sentences of the second full paragraph on page 2 that begins,“Furthermore, in interpreting and complying with the documents in the future…”Since the referenced documents may include conclusions of law, the assumptions madethere seem overly broad and inappropriate. We note in particular the statement thatcounsel has assumed “that all such written advice of counselare…correct and complete.” |
CarMax Auto Funding has revised the opinion to delete the two sentences in question.
****
We thank you for your prompt attention to this letter responding to the Comment Letter and look forward to hearing from you at your earliest convenience. Please direct any questions concerning this filing to the undersigned at (212) 735-2853.
| Sincerely, |
/s/ Andrew M. Faulkner |
Andrew M. Faulkner |
Partner |
cc: | John M. Stuckey, III | |
Andrew J. Brady | ||
Derek B. Swanson |