Exhibit 5.1
LATHAM & WATKINS LLP
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Washington, D.C.
November 7, 2003
To: The Persons Listed on Schedule I hereto
Re: Hyundai Motor Finance Company and Hyundai ABS Funding Corporation
Ladies and Gentlemen:
We have acted as special counsel to Hyundai Motor Finance Company, a
California corporation ("HMFC") and Hyundai ABS Funding Corporation, a Delaware
corporation (the "Depositor" and, together with HMFC, the "Companies"), in
connection with (i) that certain Receivables Purchase Agreement dated as of
November 7, 2003 (the "Receivables Purchase Agreement") between HMFC and the
Depositor, (ii) that certain Sale and Servicing Agreement dated as of November
7, 2003 (the "Sale and Servicing Agreement") among Hyundai Auto Receivables
Trust 2003-A (the "Issuer"), the Depositor, HMFC and Wells Fargo Bank Minnesota,
National Association, (iii) that certain Amended and Restated Trust Agreement
dated as of November 7, 2003 (the "Trust Agreement") among the Depositor, HMFC,
as Owner Trust Administrator (the "Administrator"), and Wilmington Trust
Company, as Owner Trustee (the "Owner Trustee") and the issuance by Hyundai Auto
Receivables Trust 2003-A (the "Issuer") of $753,347,000 Asset Backed Notes,
Series 2003-A (the "Notes") pursuant to the Indenture dated as of November 7,
2003 (the "Indenture") between the Issuer and Wells Fargo Bank Minnesota,
National Association (the "Indenture Trustee"). This opinion is rendered to you
pursuant to Sections 7(f) and (i) of the Underwriting Agreement dated October
29, 2003 (the "Underwriting Agreement") among the Companies and Banc One Capital
Markets, Inc., as representative of the several underwriters set forth on
Schedule I thereto. Capitalized terms defined in the Sale and Servicing
Agreement and the Receivables Purchase Agreement, used herein and not otherwise
defined herein or in Appendix A hereto, shall have the meanings given them in
such agreements.
As such counsel, we have examined such matters of fact and questions of law
as we have considered appropriate for purposes of this letter, except where a
specified fact confirmation procedure is stated to have been performed (in which
case we have with your consent performed the stated procedure), and except where
a statement is qualified as to knowledge or awareness (in which case we have
with your consent made no or limited inquiry as specified below). We have
examined, among other things, the following:
(a) the registration statement on Form S-3 (Registration No.
333-108545) relating to the Notes, including all amendments thereto (the
"Registration Statement"), filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Securities
Act");
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(b) the Prospectus dated October 24, 2003 (the "Base Prospectus") and
the Prospectus Supplement dated October 29, 2003 (the "Prospectus Supplement")
relating to the Notes (collectively, the "Prospectus"), including the filing
thereof pursuant to Rule 424 under the Securities Act;
(c) the Underwriting Agreement;
(d) the Indenture;
(e) the Receivables Purchase Agreement;
(f) the Sale and Servicing Agreement;
(g) the Trust Agreement;
(h) the Owner Trust Administration Agreement dated as of November 7,
2003 (the "Administration Agreement") among the Administrator, the Issuer and
the Indenture Trustee;
(i) the Securities Account Control Agreement dated as of November 7,
2003 (the "Control Agreement") among the Issuer, the Indenture Trustee and Wells
Fargo Bank Minnesota, National Association, as Securities Intermediary;
(j) the Reconveyance and Release Agreement dated as of November 7,
2003 (the "HBCF Reconveyance Agreement") among Hyundai BC Funding Corporation
("HBCF"), Societe Generale ("SocGen"), Asset One Securitization, L.L.C.,
Sheffield Receivables Corporation and Amsterdam Funding Corporation;
(k) the Receivables Transfer Agreement dated as of November 7, 2003
(the "HBCF Transfer Agreement") between HMFC and HBCF;
(l) a photocopy of the certificate of the Secretary of State of the
State of California (the "California Secretary") dated October 24, 2003,
together with photocopies of the UCC financing statements listed thereon
(collectively, the "HMFC Search Certificate"), listing financing statements
naming HMFC as debtor that are on file with the California Secretary (the
"California Filing Office") as of October 17, 2003 (a copy of the HMFC Search
Certificate is attached hereto as Exhibit I);
(m) a photocopy of the certificate of the Secretary of State of the
State of Delaware (the "Delaware Secretary") dated October 24, 2003, together
with photocopies of the UCC financing statements listed thereon (collectively,
the "Depositor Search Certificate"), listing financing statements naming the
Depositor as debtor that are on file with the Delaware Secretary (the "Delaware
Filing Office" and together with the California Filing Office, the "Filing
Offices") as of October 13, 2003 (a copy of the Depositor Search Certificate is
attached hereto as Exhibit II);
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(n) a photocopy of the Form UCC-3 release statement naming HBCF as
debtor and SocGen as secured party, together with all schedules and exhibits to
such release statement, to be filed in the Delaware Filing Office, a copy of
which is attached hereto as Exhibit III (the "SocGen Release Statement"),
releasing SocGen's security interest under Form UCC-1 financing statement 2001
0938725 on file in the Delaware Filing Office in the Receivables to be conveyed
to HBCF pursuant to the HBCF Reconveyance Agreement;
(o) a photocopy of the Form UCC-3 release statement naming HMFC as
debtor and HBCF as secured party, together with all schedules and exhibits to
such release statement, to be filed in the California Filing Office, a copy of
which is attached hereto as Exhibit IV (the "HBCF Release Statement" and,
together with the SocGen Release Statement, the "Release Statements"), releasing
HBCF's security interest under Form UCC-1 financing statement 0002560858 on file
in the California Filing Office in the Receivables to be conveyed to HMFC
pursuant to the HBCF Transfer Agreement;
(p) a photocopy of the Form UCC-1 financing statement naming HMFC as
seller/debtor and the Depositor as buyer/secured party, together with all
schedules and exhibits to such financing statement, to be filed in the
California Filing Office, a copy of which is attached hereto as Exhibit V (the
"HMFC Financing Statement");
(q) a photocopy of the Form UCC-1 financing statement naming the
Depositor as seller/debtor and the Issuer as buyer/secured party, together with
all schedules and exhibits to such financing statement, to be filed in the
Delaware Filing Office, a copy of which is attached hereto as Exhibit VI (the
"Depositor Financing Statement" and, together with the Release Statements and
the HMFC Financing Statement, the "Financing Statements");
(r) a certificate of an officer of HMFC, a copy of which is attached
hereto as Exhibit VII (the "HMFC Officer's Certificate");
(s) a certificate of an officer of the Depositor, a copy of which is
attached hereto as Exhibit VIII (the "Depositor Officer's Certificate"); and
(t) all correspondence issued by the Commission with respect to the
Registration Statement.
The agreements referred to in clauses (c) through (i) are referred to
herein collectively as the "Transaction Documents." The agreements referred to
in clauses (j) and (k) are referred to herein collectively as the "Related
Documents" and, together with the Transaction Documents, the "Subject
Documents." As used in this opinion, the "California UCC" shall mean the Uniform
Commercial Code as now in effect in the State of California, and the "New York
UCC" shall mean the Uniform Commercial Code as now in effect in the State of New
York. "Applicable UCC" shall mean the New York UCC, the Delaware UCC (as defined
below) and/or the California UCC, as applicable.
In addition, as used in this letter, certain capitalized terms will have
the meanings set forth therefor in Appendix A hereto.
November 7, 2003
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With your consent, we have relied upon the foregoing, including the
representations and warranties of the Companies in the Subject Documents, and
upon certificates of officer(s) of the Companies and of others with respect to
certain factual matters. We have not independently verified such factual
matters. Whenever a statement herein is qualified by "to the best of our
knowledge" or a similar phrase, it is intended to indicate that those attorneys
in this firm who have rendered legal services in connection with the
transactions contemplated by the Subject Documents do not have current actual
knowledge of the inaccuracy of such statement. However, except as otherwise
expressly indicated, we have not undertaken any independent investigation to
determine the accuracy of any such statement.
In our examination, we have assumed the genuineness of all signatures, the
legal capacity of all natural persons executing documents, the authenticity of
all documents submitted to us as originals, and the conformity to authentic
original documents of all documents submitted to us as copies. In addition, we
have assumed that the parties to the Subject Documents have not entered into any
agreements of which we are unaware which modify the terms of the Subject
Documents and have not otherwise expressly or by implication waived, or agreed
to any modification of the terms or benefits of the Subject Documents.
We are opining herein as to the effect on the subject transactions only of
the federal laws of the United States and the internal laws of the State of New
York and, with respect to paragraphs 7 and 8 only, the California UCC, except
that with respect to our opinions set forth in paragraphs 9 and 10 (as they
relate to the Depositor Financing Statement and the Delaware UCC (as defined
below)), we are opining as to the effect on the subject transaction only of the
Delaware UCC. Except as described in the previous sentence, we express no
opinion with respect to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction or, in the case of Delaware, any other laws, or
as to any matters of municipal law or the laws of any other local agencies
within any state, or any laws which are applicable to the subject transactions
or the parties thereto because of the nature or extent of their business.
With your permission we have based our opinions set forth in paragraphs 9
and 10 with respect to the Depositor Financing Statement solely upon our review
of Article 9 of the Uniform Commercial Code as in effect on the date hereof in
the State of Delaware as set forth in the CCH Secured Transactions Guide , as
supplemented through October 21, 2003 (without regard to judicial
interpretations thereof or any regulations promulgated thereunder), referred to
herein as the "Delaware UCC". We call to your attention that we are not licensed
to practice in the State of Delaware.
Notwithstanding anything to the contrary contained herein, our opinions set
forth herein are based upon our consideration of only those statutes, rules and
regulations which, in our experience, are normally applicable to receivables
purchase and sales transactions, such as the type contemplated by the
Transaction Documents; provided that no opinion is expressed as to securities
laws (except to the extent stated in paragraphs 12 through 16), tax laws,
antitrust or trade regulation laws, insolvency or fraudulent transfer laws,
antifraud laws, usury laws, environmental laws, or other laws excluded by
customary practice. We express no opinion as to any state or federal laws or
regulations applicable to the subject transactions because of the nature or
extent of the business of any parties to the Subject Documents.
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For purposes of this letter, we have assumed, with your permission, that:
(1) each of the parties to the Subject Documents (including the Companies
and the Issuer) is duly incorporated, validly existing and in good
standing under the laws of its respective jurisdiction of
organization, qualified to do business in each jurisdiction in which
such qualification is required, with the requisite corporate or other
organizational power and authority and full legal right to conduct its
business as now conducted and to own, or hold under lease, its assets
and to execute and deliver the Subject Documents to which it is a
party and perform its obligations thereunder;
(2) the execution, delivery and performance of the Subject Documents by
each of the parties thereto (including the Companies and the Issuer)
has been duly authorized by all requisite action on the part of each
such party;
(3) the Subject Documents have been duly executed and delivered by each of
the parties thereto (including the Companies and the Issuer);
(4) the Subject Documents constitute the legally valid and binding
obligations of each of the parties thereto (other than the Companies
and the Issuer with respect to obligations governed by the laws of the
State of New York), enforceable against such parties (other than the
Companies and the Issuer) in accordance with their respective terms;
(5) none of the execution, delivery and performance of any of the Subject
Documents by any of the parties thereto (including the Companies and
the Issuer) will result in the violation of or contravene or conflict
with (i) the certificate or articles of incorporation or bylaws (or
other organizational documents) of such party, (ii) any law, rule or
regulation binding upon such party (except as expressly provided in
our opinion in paragraph 3 below), (iii) any agreement or instrument
(including, without limitation, each other Subject Document) to which
such party is a party or by which any of its properties or assets are
bound (except as expressly provided in our opinion in paragraph 3
below), and (iv) any judicial or administrative judgment, injunction,
order or decree that is binding upon such party or its properties or
assets;
(6) no order, consent, approval, license, authorization, or validation of
or filing, recording or registration with, or exemption by, any court,
governmental body or authority, or any subdivision thereof is required
to authorize or is required in connection with the execution and
delivery by any party to any of the Subject Documents, or in
connection with the performance of its obligations thereunder or the
consummation of the transactions contemplated thereby (except (i) for
the filing of the Financing Statements required in order to perfect or
otherwise protect the security interests under the Receivables
Purchase Agreement, the Sale and Servicing Agreement and the Indenture
and (ii) that we do not make such assumption with respect to consents,
approvals, authorizations, registrations,
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declarations or filings to the extent that we express our opinion with
respect thereto in paragraph 3 below); and
(7) all parties to the Subject Documents have complied with any applicable
requirements to file returns and pay taxes.
Subject to the foregoing and the other matters set forth herein, and in
reliance thereon, it is our opinion that, as of the date hereof:
1. Each Subject Document (other than the Trust Agreement and the
Underwriting Agreement as to which we express no opinion) to which each Company
or the Issuer is a party constitutes a legally valid and binding obligation of
such Company or the Issuer, as the case may be, enforceable against such Company
or the Issuer, as the case may be, in accordance with its terms.
2. The Notes, when duly executed and delivered by the Owner Trustee on
behalf of the Issuer, authenticated by the Indenture Trustee and delivered and
paid for pursuant to the Underwriting Agreement, will constitute legally valid
and binding obligations of the Issuer, enforceable against the Issuer in
accordance with their terms.
3. The execution and delivery of the Transaction Documents by each
Company a party thereto, and the consummation by such Company of the
transactions contemplated by the Transaction Documents to which it is a party on
the date hereof do not to the best of our knowledge (i) after giving effect to
the transactions contemplated by the Related Documents, violate the provisions
of the agreements described in Exhibit IX attached hereto (such agreements, the
"Conduit Documents"), (ii) violate any federal or New York statute, rule, or
regulation applicable to such Company, or (iii) require any consents, approvals,
authorizations, registrations, declarations or filings by such Company under any
federal or New York statute, rule, or regulation applicable to such Company
except filings and recordings required in order to perfect or otherwise protect
the security interests under the Transaction Documents.
No opinion is expressed in clauses (ii) and (iii) of this paragraph 3
as to the application of Section 547 and 548 of the federal Bankruptcy Code and
comparable provisions of state law, or under other laws customarily excluded
from such opinions, including any antifraud laws, securities laws, the
securities or "blue sky" laws of any State and antitrust or trade regulation
laws.
4. The Receivables Purchase Agreement is effective to create a valid
security interest, as such term is defined in the New York UCC, in favor of the
Depositor in that portion of the collateral described in Section 2.01(a) of the
Receivables Purchase Agreement in which HMFC has rights and the transfer thereof
pursuant to Section 2.01(a) of the Receivables Purchase Agreement is subject to
Article 9 of the New York UCC (the "RPA Assets").
5. The Sale and Servicing Agreement is effective to create a valid
security interest, as such term is defined in the New York UCC, in favor of the
Issuer in that portion of
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the collateral described in Section 2.01 of the Sale and Servicing Agreement in
which the Depositor has rights and the transfer thereof pursuant to Section 2.01
of the Sale and Servicing Agreement is subject to Article 9 of the New York UCC
(the "SSA Assets").
6. The Indenture is effective to create a valid security interest in
favor of the Indenture Trustee, as such term is defined in the New York UCC, in
that portion of the collateral described in the Granting Clause of the Indenture
in which the Issuer has rights and which is subject to Article 9 of the New York
UCC (the "Indenture Assets" and, together with the RPA Assets and the SSA
Assets, the "Transferred Assets").
7. The HMFC Financing Statement is in appropriate form for filing in
the California Filing Office. Insofar as Division 9 of the California UCC is
applicable (without regard to conflicts of law principles), upon the proper
filing of the HMFC Financing Statement in the California Filing Office, the
security interest in favor of the Depositor in the RPA Assets described in the
HMFC Financing Statement will be perfected to the extent a security interest in
such RPA Assets can be perfected under the California UCC by the filing of a
financing statement with the California Filing Office (the "Division 9 Filing
RPA Assets").
8. We call to your attention that the HMFC Search Certificate
describes or identifies several financing statements that incorporate by
reference lists of receivables that could potentially include the Division 9
Filing RPA Assets (the secured parties under such financing statements, copies
of which are attached hereto as Exhibit X (the "HMFC Prior Filings"), being
referred to herein as the "HMFC Prior Filers"). We have not independently
reviewed any of the lists of receivables incorporated by reference in the HMFC
Prior Filings; however, we note that an officer of HMFC has certified in the
HMFC Officer's Certificate that, other than the security interests evidenced
under Form UCC-1 financing statement 0002560858 described or identified on the
HMFC Search Certificate, none of the other HMFC Prior Filings described or
identified on the HMFC Search Certificate describe the Division 9 Filing RPA
Assets. Other than the HMFC Prior Filers (including, the secured parties under
Form UCC-1 financing statement 0002560858), the HMFC Search Certificate
identifies no secured party who has filed a financing statement naming HMFC as
debtor and describing the Division 9 Filing RPA Assets.
9. The Depositor Financing Statement is in appropriate form for filing
in the Delaware Filing Office. Insofar as Article 9 of the Delaware UCC is
applicable (without regard to conflicts of law principles), upon the proper
filing of the Depositor Financing Statement in the Delaware Filing Office, the
security interest in favor of the Issuer in the SSA Assets described in the
Depositor Financing Statement will be perfected in that portion of such SSA
Assets that can be perfected under the Delaware UCC by the filing of a financing
statement with the Delaware Filing Office (the "Article 9 Filing SSA Assets"
and, together with the Article 9 Filing RPA Assets, the "Article 9 Filing
Assets").
10. We call to your attention that the Depositor Search Certificate
describes or identifies several financing statement that incorporate by
reference lists of receivables that could potentially include the Article 9
Filing SSA Assets (the secured parties under such financing statements, copies
of which are attached hereto as Exhibit X (the "Depositor Prior Filings"), being
referred to herein as the "Depositor Prior Filers"). We have not independently
reviewed
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any of the lists of receivables incorporated by reference in the Depositor Prior
Filings; however, we note that an officer of the Depositor has certified in the
Depositor Officer's Certificate that none of the Depositor Prior Filings
described or identified on the Depositor Search Certificate describe the Article
9 Filing SSA Assets. Other than the Depositor Prior Filers, the Depositor Search
Certificate identifies no secured party who has filed a financing statement
naming the Depositor as debtor and describing the Article 9 Filing SSA Assets.
11. Assuming the Contracts are created under, and are evidenced solely
by, motor vehicle retail installment sale contracts in the form of the contract
attached as Exhibit XII hereto, such Contracts are "chattel paper" as defined in
Section 9-102(11) of the New York UCC.
12. The Registration Statement has become effective under the
Securities Act. To the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities
Act and no proceedings therefore have been initiated by the Commission. Any
required filing of the Prospectus pursuant to Rule 424 under the Securities Act
has been made in accordance with Rule 424 under the Securities Act. The
Registration Statement, as of the date it was declared effective, and the
Prospectus, as of its date, complied as to form in all material respects with
the requirements for registration statements on Form S-3 under the Securities
Act and the rules and regulations of the Commission thereunder; it being
understood, however, that we express no opinion with respect to Regulation S-T,
the Indenture Trustee's Form T-1, or the financial statements, schedules, or
other financial data, included in, incorporated by reference in, or omitted
from, the Registration Statement or the Prospectus. In passing upon the
compliance as to form of the Registration Statement and Prospectus, we have
assumed that the statements made therein are correct and complete.
13. The Trust Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
14. The Indenture has been qualified under the Trust Indenture Act.
15. The Class A-1 Notes are "eligible securities" within the meaning
of Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended.
16. The Trust is not, and immediately after giving effect to the sale
of the Notes in accordance with the Underwriting Agreement and the application
of the proceeds as described in the Prospectus Supplement under the caption "Use
of Proceeds," will not be, an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended.
17. The provisions of the Control Agreement are effective under the
New York UCC to perfect the security interest in favor of the Indenture Trustee
in that portion of the Indenture Assets consisting of the securities account
maintained with Wells Fargo Bank Minnesota, National Association (the
"Securities Intermediary") described in the Control Agreement (the "Securities
Account"), assuming (a) the Securities Intermediary's jurisdiction (as
determined in accordance with Section 8-110(e) of the New York UCC) is New York,
(b) the Securities Account constitutes a "securities account" within the meaning
of Section 8-501 of the
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New York UCC, (c) the Securities Intermediary, with respect to the Securities
Account, is acting in its capacity as a "securities intermediary" (as defined in
Section 8-102(a)(14) of the New York UCC) and (d) the Control Agreement has been
duly authorized, executed and delivered by each of the parties thereto and is
the legally valid and binding obligation of such parties. The Indenture
Trustee's security interest in the Securities Account has priority over any
other security interest in the Securities Account granted by the Issuer assuming
no other secured party has control of, and the absence of any other control
agreement with respect to, the Securities Account. We express no opinion as to
the priority of any security interest in the Securities Account as against any
security interest in favor of the Securities Intermediary.
18. The statements in the Prospectus Supplement and the Base
Prospectus under the headings "ERISA CONSIDERATIONS," to the extent such
statements describe matters of law or legal conclusions with respect thereto,
have been prepared or reviewed by us and are correct in all material respects.
The opinions expressed in paragraphs 1, 2 and 3 do not include opinions
with respect to the creation, validity, perfection or priority of any security
interest or lien. The opinions expressed in paragraph 1, 2 and 3 and the
opinions expressed in paragraphs 4, 5, 6, 7, 8, 9, 10 and 12 as to the creation,
validity, perfection and priority of the security interests and liens referred
to therein are further subject to the following limitations, qualifications and
exceptions:
(i) the effect of bankruptcy, insolvency, reorganization, preference,
fraudulent transfer, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights or remedies of creditors generally;
(ii) the effect of general principles of equity, whether enforcement
is considered in a proceeding in equity or at law (including the possible
unavailability of specific performance or injunctive relief), concepts of
materiality, reasonableness, good faith and fair dealing, and the discretion of
the court before which any proceeding therefor may be brought;
(iii) the unenforceability under certain circumstances under law or
court decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such indemnification
or contribution is contrary to public policy;
(iv) we express no opinion with respect to the enforceability of (a)
consents to, or restrictions upon, judicial relief or, except for provisions by
which a party agrees to submit to the jurisdiction of the New York courts in
respect of any action or proceeding arising out of or relating to the Subject
Documents, jurisdiction or venue; (b) advance waivers of claims, defenses,
rights granted by law, or notice, opportunity for hearing, evidentiary
requirements, statutes of limitation, trial by jury or at law, or other
procedural rights; (c) provisions for exclusivity, election or cumulation of
rights or remedies; (d) restrictions upon non-written modifications and waivers;
(e) provisions authorizing or validating conclusive or discretionary
determinations; (f) grants of setoff rights; (g) the unenforceability of any
provision requiring the payment of attorneys' fees, except to the extent that a
court determines such fees to be reasonable; (h) proxies, powers and trusts; (i)
provisions prohibiting, restricting, or requiring consent to assignment or
transfer of any right or property; and (j) provisions for liquidated
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damages, default interest, late charges, monetary penalties, prepayment or
make-whole premiums or other economic remedies;
(v) certain rights, remedies and waivers contained in the Subject
Documents may be limited or rendered ineffective by applicable California laws
or judicial decisions governing such provisions, but such laws or judicial
decisions do not render the Subject Documents invalid or unenforceable as a
whole; and
(vi) we express no opinion as to the validity or enforceability of any
provisions for liquidated damages, default interest, late charges, monetary
penalties, prepayment or make-whole premiums or other economic remedies and call
to your attention the provisions of Sections 1717 and 1717.5 of the California
Civil Code, which limit and create obligations for the payment of attorney's
fees.
The opinions set forth above are also subject to (i) the unenforceability
of contractual provisions waiving or varying the rules listed in Section 9-602
of the Applicable UCC, (ii) the unenforceability under certain circumstances of
contractual provisions respecting self-help or summary remedies without notice
of opportunity for hearing or correction and (iii) the effect of provisions of
the Applicable UCC which require a secured party, in any disposition of personal
property collateral, to act in good faith and a commercially reasonable manner.
In rendering the opinions expressed in paragraph 3 insofar as they require
interpretation of the Conduit Documents (i) we have assumed with your permission
that all courts of competent jurisdiction would enforce such agreements as
written but would apply the internal laws of the State of New York without
giving effect to any choice of law provisions contained therein or any choice of
law principles which would result in application of the internal laws of any
other state, (ii) to the extent that any questions of legality or legal
construction have arisen in connection with our review, we have applied the laws
of the State of New York in resolving such questions, (iii) we express no
opinion with respect to the effect of any action or inaction by HMFC, the
Depositor or HBCF, as applicable, under the Subject Documents or the Conduit
Documents which may result in a breach or default under any Conduit Document,
and (iv) we express no opinion with respect to any matters which require us to
perform a mathematical calculation or make a financial or accounting
determination. We advise you that certain of the Conduit Documents may be
governed by other laws, that such laws may vary substantially from the law
assumed to govern for purposes of this opinion, and that this opinion may not be
relied upon as to whether or not a breach or default would occur under the law
actually governing such Conduit Documents.
Our opinions in paragraphs 4, 5, 6, 11 and 17 above are limited to Article
9 of the New York UCC, our opinions in paragraphs 7 and 8 are limited to
Division 9 of the California UCC and our opinions in paragraphs 9 and 10 are
limited to Article 9 of the Delaware UCC, and therefore those opinion
paragraphs, among other things, do not address (i) Collateral of a type not
subject to, or excluded from the coverage of, Article 9 of the Delaware UCC or
the New York UCC, as applicable, or Division 9 of the California UCC, and (ii)
under New York UCC Sections 9-301 and 9-307, what law governs perfection of the
security interests granted in the Collateral covered by this opinion.
Additionally,
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(i) we express no opinion with respect to:
(a) the priority of any security interest or lien, except as set forth
in paragraphs 8, 10 and 17 above;
(b) what law governs perfection of a security interest granted in the
RPA Assets, the SSA Assets or the Indenture Assets and proceeds thereof; or
(c) any agricultural lien or any Transferred Assets that consist of
letter-of-credit rights, goods covered by a certificate of title, claims
against any government or governmental agency, consumer goods, crops
growing or to be grown, timber to be cut, goods which are or are to become
fixtures, or as-extracted Transferred Assets;
(ii) we assume the descriptions of the RPA Assets contained in, or
attached as schedules to, the Receivables Purchase Agreement sufficiently
describe the RPA Assets intended to be covered by the Receivables Purchase
Agreement, and we express no opinion as to whether the phrases "all personal
property" or "all assets" or similarly general phrases would be sufficient to
create a valid security interest in the RPA Assets or any particular item or
items of the RPA Assets;
(iii) we have assumed that HMFC has, or has the power to transfer,
"rights" in the RPA Assets and that "value" has been given, as contemplated by
Section 9-203 of the New York UCC, and we express no opinion as to the nature or
extent of HMFC's rights in or title to any of the RPA Assets;
(iv) we assume the descriptions of the SSA Assets contained in, or
attached as schedules to, the Sale and Servicing Agreement sufficiently describe
the SSA Assets intended to be covered by the Sale and Servicing Agreement, and
we express no opinion as to whether the phrases "all personal property" or "all
assets" or similarly general phrases would be sufficient to create a valid
security interest in the SSA Assets or any particular item or items of the SSA
Assets;
(v) we have assumed that the Depositor has, or has the power to
transfer, "rights" in the SSA Assets and that "value" has been given, as
contemplated by Section 9-203 of the New York UCC, and we express no opinion as
to the nature or extent of the Depositor's rights in or title to any of the SSA
Assets;
(vi) we assume the descriptions of the Indenture Assets contained in,
or attached as schedules to, the Indenture sufficiently describe the Indenture
Assets intended to be covered by the Indenture, and we express no opinion as to
whether the phrases "all personal property" or "all assets" or similarly general
phrases would be sufficient to create a valid security interest in the Indenture
Assets or any particular item or items of the Indenture Assets;
(vii) we have assumed that the Issuer has, or has the power to
transfer, "rights" in the Indenture Assets and that "value" has been given, as
contemplated by Section 9-203 of the
November 7, 2003
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LATHAM & WATKINS LLP
New York UCC, and we express no opinion as to the nature or extent of the
Issuer's rights in or title to any of the Indenture Assets;
(viii) we call to your attention the fact that the perfection of a
security interest in "proceeds" (as defined in the Applicable UCC) of Collateral
is governed and restricted by Section 9-315 of the Applicable UCC;
(ix) we express no opinion regarding the effect of any security
interest perfected prior to July 1, 2001 under the New York UCC, the California
UCC or the Delaware UCC or outside the New York UCC, the California UCC or the
Delaware UCC;
(x) we have assumed that the exact legal name of HMFC and the
Depositor are as set forth in the copy of the organizational documents delivered
pursuant to Section 7(t) of the Underwriting Agreement;
(xi) Section 552 of the federal Bankruptcy Code limits the extent to
which property acquired by a debtor after the commencement of a case under the
federal Bankruptcy Code may be subject to a security interest arising from a
security agreement entered into by the debtor before the commencement of such
case;
(xii) we have assumed that the parties to the Transaction Documents
have not expressly or by implication waived, subordinated or agreed to any
modification of the perfection or priority of any security interest under the
Transaction Documents or agreed to any adverse claim of which we are unaware.
(xiii) we express no opinion with respect to any security interest in
any of the following types of property which are now or hereafter credited to
the Securities Account: (a) any option or similar obligation issued by a
clearing corporation to its participants; (b) any commodity contract; (c) an
ownership interest evidenced by certificates or stock or other instruments and a
leasehold evidenced by a proprietary lease, or either of the foregoing, from a
corporation or partnership formed for the purpose of cooperative ownership of
real estate; (d) any interest in a trust, partnership or limited liability
company; or (e) property of a type constituting financial assets not subject to
Article 9 of the New York UCC;
(xiv) we call to your attention that under the New York UCC actions
taken by the Securities Intermediary or the Indenture Trustee (including
amending any agreement relating to the Securities Account in a manner which
either (a) eliminates the Indenture Trustee's "control" over the Securities
Account, (b) changes the identity of the entitlement holder or (c) changes the
law governing the Securities Account) may adversely affect the security interest
of the Indenture Trustee;
(xv) we call to your attention that the law of a "securities
intermediary's jurisdiction" governs, among other things, the rights and duties
of a "securities intermediary" and the "entitlement holder" arising out of a
"security entitlement" and whether an adverse claim can be asserted against a
person who acquires a "security entitlement" from a "securities intermediary"
(as each such term is defined in the New York UCC);
November 7, 2003
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LATHAM & WATKINS LLP
(xvi) we express no opinion with respect to the effect of Section
9-315 of the New York UCC or any other applicable law with respect to proceeds
of any funds or other property credited to the Securities Account to the extent
such funds or other property constitute proceeds of the Indenture Assets of
either the Indenture Trustee or any other creditor;
(xvii) we have assumed that (a) the parties thereto have complied with
the Control Agreement in all respects, (b) the Securities Intermediary has
satisfied at least one of the conditions set forth in Section 8-501(b) of the
New York UCC with respect to the financial assets maintained therein, and (c)
the financial assets carried in the Securities Account have been duly endorsed
to the Securities Intermediary or in blank as provided in Section 8-501(d) of
the New York UCC, and we express no opinion as to the nature or extent of the
Securities Intermediary's rights in the financial assets underlying any Security
Entitlement;
(xviii) we have assumed that the Control Agreement, and no other
agreement or understanding with any Person, governs the Indenture Trustee's, the
Security Intermediary's and the Issuer's rights and duties with respect to the
Securities Account and the financial assets contained therein;
(xix) we express no opinion as to the priority of any security
interest in a Securities Account as against any lien creditor to the extent that
such security interest purports to secure any advances or other obligations
other than those that are made without knowledge of the lien or pursuant to a
commitment entered into without knowledge of the lien;
(xx) we express no opinion with respect to any property subject to a
statute, regulation or treaty of the United States whose requirements for a
security interest's obtaining priority over the rights of a lien creditor with
respect to such property preempt Section 9-310(a) of the New York UCC or the
Delaware UCC or Section 9310(a) of the California UCC; and
(xxi) we have assumed that there are no effective agreements
prohibiting, restricting or conditioning the assignment of any portion of the
Transferred Assets and that any conditions for the assignment thereof have been
complied with.
This letter is furnished only to you and is solely for your benefit in
connection with the transactions covered hereby. This letter may not be relied
upon by you for any other purpose, or furnished to, assigned to, quoted to or
relied upon by any other person, firm or entity for any purpose, without our
prior written consent, which may be granted or withheld in our sole discretion.
Very truly yours,
/s/ Latham & Watkins LLP
SCHEDULE I
Hyundai ABS Funding Corporation
10550 Talbert Avenue
Fountain Valley, California 92708
Hyundai Motor Finance Company
10550 Talbert Avenue
Fountain Valley, California 92708
Hyundai Auto Receivables Trust 2003-A
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Wells Fargo Bank Minnesota, National Association
Sixth and Marquette Avenue
MAC N9311-161
Minneapolis, Minnesota 55479
Standard & Poor's
55 Water Street
New York, New York 10041
Fitch, Inc.
1 State Street Plaza
New York, New York 10004
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10017
Banc One Capital Markets, Inc., Individually
and as Representative of the Several Underwriters
One Bank One Plaza, Mail Suite IL1-0596
Chicago, Illinois 60670
Exhibit I
HMFC Search Certificate
Exhibit II
Depositor Search Certificate
Exhibit III
SocGen Release Statement
Exhibit IV
HBCF Release Statement
Exhibit V
HMFC Financing Statement
Exhibit VI
Depositor Financing Statement
Exhibit VII
HMFC Officer's Certificate
Exhibit VIII
Depositor Officer's Certificate
Exhibit IX
Conduit Documents
Purchase and Sale Agreement dated as of January 17, 2000 (as amended,
supplemented or otherwise modified to the date hereof) between HMFC and HBCF.
Second Amended and Restated Receivables Purchase Agreement, dated as of
July 23, 2002 (as amended, supplemented or otherwise modified to the date
hereof) among HMFC, HBCF, Asset One Securitization, LLC, Sheffield Receivables
Corporation, Amsterdam Funding Corporation, Barclay's Bank plc, SocGen and ABN
AMRO Bank N.V.
Exhibit X
HMFC Prior Filings
Exhibit XI
Depositor Prior Filings
Exhibit XII
Form of Motor Vehicle Retail Installment Sale Contract