EXHIBITS 5.1, 8.1 & 23.1
[Letterhead of Xxxxxxx Xxxxxxxx & Xxxx LLP]
March 17, 2005
Greenwich Capital Markets, Inc. Sandler X'Xxxxx & Partners, L.P.
000 Xxxxxxxxx Xxxx 000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000 0xx Xxxxx
Xxx Xxxx, XX 00000
Opinion: Underwriting Agreement (Tax)
Financial Asset Securities Corp.
EquiFirst Mortgage Loan Trust 2005-1
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Ladies and Gentlemen:
We have acted as counsel to Greenwich Capital Financial Products, Inc.
(the "Seller"), Financial Asset Securities Corp. (the "Depositor"), Greenwich
Capital Markets, Inc. ("GCM" or the "Initial Purchaser"; collectively with
Sandler X'Xxxxx & Partners, L.P., the "Underwriters"), in connection with (i)
the Mortgage Loan Purchase Agreement, dated March 14, 2005 (the "Seller Sale
Agreement"), among the Seller, the Depositor and EquiFirst Corporation (the
"Originator"), (ii) the Pooling and Servicing Agreement, dated as of March 15,
2005 (the "Pooling and Servicing Agreement"), among the Depositor, Saxon
Mortgage Services, Inc. (the "Servicer") and Deutsche Bank National Trust
Company (the "Trustee"), and the certificates issued pursuant thereto designated
as the EquiFirst Mortgage Loan Trust 2005-1, Asset-Backed Certificates, Series
2005-1 (the "Certificates"), (iii) the Underwriting Agreement, dated March [__],
2005 (the "Underwriting Agreement"), between the Depositor and the Underwriters,
(iv) the Indemnification Agreement, dated March 14, 2005 (the "Saxon
Indemnification Agreement"), between the Depositor and the Servicer, (v) the
Purchase Agreement, dated March 17, 2005 (the "Purchase Agreement"), between the
Depositor and the Initial Purchaser, (vi) the Private Placement Memorandum,
dated March 17, 2005 and (vii) the Prospectus Supplement, dated March 14, 2005
(the "Prospectus Supplement"), and the Prospectus to which it relates, dated
February 22, 2005 (the "Base Prospectus"; together with the Prospectus
Supplement, the "Prospectus"). The Seller Sale Agreement, the Pooling and
Servicing Agreement, the Underwriting Agreement, the Saxon Indemnification
Agreement and the Purchase Agreement are collectively referred to herein as the
"Agreements." Capitalized terms not defined herein have the meanings assigned to
them in the Agreements.
In rendering this opinion letter, as to relevant factual matters we
have examined the documents described above and such other documents as we have
deemed necessary including, where we have deemed appropriate, representations or
certifications of officers of parties thereto or public officials. In rendering
this opinion letter, except for the matters that are specifically addressed in
the opinions expressed below, with your permission we have assumed and are
relying thereon without independent investigation (i) the authenticity of all
documents submitted to us as originals or as copies thereof, and the conformity
to the originals of all documents submitted to us as copies, (ii) the necessary
entity formation and continuing existence in the jurisdiction of formation, and
the necessary licensing and qualification in all jurisdictions, of all parties
to all documents, (iii) the necessary authorization, execution, delivery and
enforceability of all documents, and the necessary entity power with respect
thereto, and (iv) that there is not any other agreement that modifies or
supplements the agreements expressed in any document to which this opinion
letter relates and that renders any of the opinions expressed below inconsistent
with such document as so modified or supplemented. In rendering this opinion
letter, except for the matters that are specifically addressed in the opinions
expressed below, we have made no inquiry, have conducted no investigation and
assume no responsibility with respect to (a) the accuracy of and compliance by
the parties thereto with the representations, warranties and covenants as to
factual matters contained in any document or (b) the conformity of the
underlying assets and related documents to the requirements of any agreement to
which this opinion letter relates.
In rendering this opinion letter, as to relevant factual matters we
have examined the documents described above and such other documents as we have
deemed necessary including, where we have deemed appropriate, representations or
certifications of officers of parties thereto or public officials. In rendering
this opinion letter, except for the matters that are specifically addressed in
the opinions expressed below, with your permission we have assumed, and are
relying thereon without independent investigation, (i) the authenticity of all
documents submitted to us as originals or as copies thereof, and the conformity
to the originals of all documents submitted to us as copies, (ii) the necessary
entity formation and continuing existence in the jurisdiction of formation, and
the necessary licensing and qualification in all jurisdictions, of all parties
to all documents, (iii) the necessary entity authorization, execution, delivery
and enforceability of all documents, and the necessary entity power and
authority with respect thereto, and (iv) that there is not any other agreement
that modifies or supplements the agreements expressed in any document to which
this opinion letter relates and that renders any of the opinions expressed below
inconsistent with such document as so modified or supplemented. In rendering
this opinion letter, except for the matters that are specifically addressed in
the opinions expressed below, we have made no inquiry, have conducted no
investigation and assume no responsibility with respect to (a) the accuracy of
and compliance by the parties thereto with the representations, warranties and
covenants as to factual matters contained in any document or (b) the conformity
of the underlying assets and related documents to the requirements of any
agreement to which this opinion letter relates.
This opinion letter is based upon our review of the documents referred
to herein. We have conducted no independent investigation with respect to the
facts contained in such documents and relied upon in rendering this opinion
letter. We also note that we do not represent any of the parties to the
transactions to which this opinion letter relates or any of their affiliates in
connection with matters other than certain transactions. However, the attorneys
in this firm who are directly involved in the representation of parties to the
transactions to which this opinion letter relates, after such consultation with
such other attorneys in this firm as they deemed appropriate, have no actual
present knowledge of the inaccuracy of any fact relied upon in rendering this
opinion letter.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the federal income tax laws of the United States,
including without limitation the Internal Revenue Code of 1986, as amended, (the
"Code") applicable to a real estate mortgage investment conduit ("REMIC"). We do
not express any opinion herein with respect to any matter not specifically
addressed in the opinions expressed below, including without limitation (i) any
statute, regulation or provision of law of any county, municipality or other
political subdivision or any agency or instrumentality thereof or (ii) the
securities or tax laws of any jurisdiction.
Based upon and subject to the foregoing, it is our opinion that:
1. Each of the Agreements to which the Seller or the Depositor is a party
(to the extent that the laws of the State of New York are designated
therein as the governing law thereof), assuming the necessary entity
power and authority therefor and authorization, execution and delivery
thereof by the parties thereto and the enforeability thereof against
the other parties thereto, is a valid and legally binding agreement
under the laws of the State of New York, enforceable thereunder in
accordance with its terms against the Depositor or Seller, as the case
may be.
2. The Certificates, assuming the necessary power and authority therefor,
authorization, execution, authentication and delivery thereof and
payment therefor in accordance with the applicable Agreements, are
validly issued and outstanding and are entitled to the benefits of the
Pooling and Servicing Agreement.
3. The statements made in the Base Prospectus under the heading "Material
Federal Income Tax Consequences" and in the Prospectus Supplement under
the heading "Federal Income Tax Consequences", to the extent that those
statements constitute matters of law or legal conclusions with respect
thereto, while not purporting to discuss all possible consequences of
investment in the securities to which they relate, are correct in all
material respects with respect to those consequences or matters that
are discussed therein.
4. Assuming the accuracy of and compliance with the factual
representations, covenants and other provisions of the Agreements
without any waiver or modification thereof, for United States federal
income tax purposes within the meaning of the Code in effect on the
date hereof, (i) each of REMIC 1, REMIC 2, REMIC 3 and REMIC 4 will
qualify as a REMIC, (ii) the REMIC 1 Regular Interests will represent
ownership of "regular interests" in REMIC 1, and the Class R-1 Interest
will constitute the sole class of "residual interests" in REMIC 1,
(iii) each class of the Class A Certificates, the Mezzanine
Certificates and the Class B Certificates (exclusive of any right to
receive payments from the Net WAC Rate Carryover Reserve Account), the
Class CE Interest and the Class P Interest will represent ownership of
"regular interests" in REMIC 2 and will generally be treated as debt
instruments of REMIC 2, (iv) the Class C Certificate will represent
ownership of the "regular interests" in REMIC 3, and the Class R-3
Interest will constitute the sole class of "residual interests" in
REMIC 3, (v) the Class P Certificates will represent ownership of the
"regular interests" in REMIC 4, and the Class R-4 Interest will
constitute the sole class of "residual interests" in REMIC 4, (vi) the
Class R
Certificates will represent ownership of the Class R-1 Interest and the
Class R-2 Interest and (viii) the Class R-X Certificates will represent
ownership of the Class R-3 Interest and the Class R-4 Interest.
We hereby consent to the filing of this opinion letter as an Exhibit to
the Registration Statement, and to the use of our name in the prospectus and
prospectus supplement included in the Registration Statement under the headings
"Federal Income Tax Consequences" and "Legal Matters," without admitting that we
are "persons" within the meaning of Section 7(a) or 11(a)(4) of the 1933 Act, or
"experts" within the meaning of Section 11 thereof, with respect to any portion
of the Registration Statement.
Very truly yours,
By: /s/ XXXXXXX XXXXXXXX & XXXX LLP
