EXHIBITS 5.1, 8.1 & 23.1
[Letterhead of Xxxxxxx Xxxxxxxx & Xxxx LLP]
November 30, 2004
Greenwich Capital Markets, Inc. Xxxxxx Xxxxxx & Company, Inc.
000 Xxxxxxxxx Xxxx 00 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000 Xxxxxxx, Xxxxxxxxx 00000
Xxxxxxx X'Xxxxx & Partners, L.P.
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Opinion: Underwriting Agreement (Tax)
Financial Asset Securities Corp.
Equifirst Mortgage Loan Trust 2004-3
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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
Xxxxxx Xxxxxx & Company, Inc. and Xxxxxxx X'Xxxxx & Partners, L.P., the
"Underwriters"), in connection with (i) the Mortgage Loan Purchase Agreement,
dated November 24, 2004 (the "Seller Sale Agreement"), among the Seller, the
Depositor and EquiFirst Corporation (the "Originator"), (ii) the Pooling and
Servicing Agreement, dated as of November 15, 2004 (the "Pooling and Servicing
Agreement"), among the Depositor, Ocwen Federal Bank FSB (the "Servicer") and
Deutsche Bank National Trust Company (the "Trustee"), and the certificates
issued pursuant thereto designated as the EquiFirst Mortgage Loan Trust 2004-3,
Asset-Backed Certificates, Series 2004-3 (the "Certificates"), (iii) the
Underwriting Agreement, dated November 24, 2004 (the "Underwriting Agreement"),
between the Depositor and the Underwriters, and (iv) the Prospectus Supplement,
dated November 24, 2004 (the "Prospectus Supplement"), and the Prospectus to
which it relates, dated April 23, 2004 (the "Base Prospectus"; together with the
Prospectus Supplement, the "Prospectus"). The Seller Sale Agreement, the Pooling
and Servicing Agreement, the Underwriting Agreement, the Ocwen 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, any opinion expressed herein with
respect to the enforceability of any right or obligation is subject to (i)
general principles of equity, including concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific
performance and injunctive relief, regardless of whether considered in a
proceeding in equity or at law, (ii) bankruptcy, insolvency, receivership,
reorganization, liquidation, voidable preference, fraudulent conveyance and
transfer, moratorium and other similar laws affecting the rights of creditors or
secured parties, (iii) the effect of certain laws, regulations and judicial and
other decisions upon (a) the availability and enforceability of certain
remedies, including the remedies of specific performance and self-help, and
provisions purporting to waive the obligation of good faith, materiality, fair
dealing, diligence, reasonableness or objection to judicial jurisdiction, venue
or forum and (b) the enforceability of any provision the violation of which
would not have any material adverse effect on the performance by any party of
its obligations under any agreement and (iv) public policy considerations
underlying United States federal securities laws, to the extent that such public
policy considerations limit the enforceability of any provision of any agreement
which purports or is construed to provide indemnification with respect to
securities law violations. However, the non-enforceability of any provisions
referred to in foregoing clause (iii) will not, taken as a whole, materially
interfere with the practical realization of the benefits of the rights and
remedies included in any such agreement which is the subject of any opinion
expressed below, except for the consequences of any judicial, administrative,
procedural or other delay which may be imposed by, relate to or arise from
applicable laws, equitable principles and interpretations thereof.
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 addition, if we indicate herein that any opinion is based on our
knowledge, our opinion is based solely on the actual present knowledge of such
attorneys after such consultation with such other attorneys in this firm as they
deemed appropriate.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the laws of the State of New York, the General Corporation
Law of the State of Delaware and the federal laws of the United States,
including without limitation the Securities Act of 1933, as amended (the "1933
Act"). 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. The statements made 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.
2. 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
