March 5, 2004
Homestar Mortgage Acceptance Corp. Home Star Mortgage Services LLC
W. 000 Xxxxxxx Xxxx X. 000 Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000 Xxxxxxx, Xxx Xxxxxx 00000
Citigroup Global Markets Inc. HSBC Bank USA
000 Xxxxxxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association Standard & Poor's, A Division of
0000 Xxx Xxxxxxxxx Xxxx The XxXxxx-Xxxx Companies, Inc.
Xxxxxxxx, Xxxxxxxx 00000 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Opinion: Underwriting Agreement
Homestar Mortgage Acceptance Corp.
Asset-Backed Pass-Through Certificates. Series 2004-1
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Ladies and Gentlemen:
We have acted as counsel to Home Star Mortgage Services LLC (the
"Seller") and Homestar Mortgage Acceptance Corp.(the "Depositor") in connection
with (i) the Mortgage Loan Purchase Agreement, dated as of March 1, 2004 (the
"Seller Sale Agreement"), between the Seller and the Depositor, (ii) the Pooling
and Servicing Agreement, dated as of March 1, 2004 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, National Association (the
"Master Servicer") and HSBC Bank USA (the "Trustee"), and the certificates
issued pursuant thereto designated as Asset-Backed Pass-Through Certificates,
Series 2004-1 (collectively, the "Certificates"), (iii) the Underwriting
Agreement, dated March 4, 2004 (the "Underwriting Agreement"), among the Seller,
the Depositor, and Citigroup Global Markets Inc. (the "Underwriter") pursuant to
which certain Certificates were sold (the "Publicly Offered Securities"), (iv)
the Custodial Agreement, dated March 5, 2004 (the "Custodial Agreement"), among
the Depositor, the Trustee and Xxxxx Fargo Bank, National Association as Master
Servicer and custodian, (v) the Servicing Agreement, dated as of March 5, 2004
between the Seller and the Master Servicer and the Servicing Agreement, dated as
of March 5, 2004 between the Seller and the Depositor (together, the "Servicing
Agreements"), (vi) the Assignment, Assumption and Recognition Agreement, dated
as of March 5, 2004 among the Seller, the Depositor and the Trustee (the "AAR
Agreement") and (vii) the Prospectus Supplement, dated March 4, 2004 (the
"Prospectus Supplement") and the Base Prospectus to which it relates, dated
March 4, 2004 (the "Base Prospectus"; together with the Prospectus Supplement,
the "Prospectus"). The Seller Sale Agreement, the Pooling and Servicing
Agreement, the Servicing Agreements, the AAR Agreement
Homestar Mortgage Acceptance Corp., Series 2004-1 Page 2
March 5, 2004
and the Underwriting 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.
Homestar Mortgage Acceptance Corp., Series 2004-1 Page 3
March 5, 2004
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 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.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the laws of the State of New York, 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. Each of the Seller and the Depositor has been legally formed
or incorporated, respectively, under the laws of the State of
Delaware and, based upon a certificate of good standing issued
by that State, is validly existing as a limited liability
company or corporation, as applicable, in good standing under
the laws of that State, and has the requisite entity power and
authority to execute and deliver each Agreement to which it is
a party and to perform its obligations thereunder.
2. Each of the Agreements to which the Seller or the Depositor is
a party has been duly authorized, executed and delivered by
such party. The issuance, offer, sale and delivery of the
Certificates have been duly authorized by the Depositor.
3. 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 authorization, execution and delivery thereof by
the parties thereto (other than any party as to which we opine
to that effect herein), is a valid and legally binding
agreement under the laws of the State of New York (to the
extent such laws are applicable thereto), enforceable
thereunder in accordance with its terms against the Seller or
Depositor, as the case may be.
4. The Certificates, assuming the necessary execution,
authentication and delivery thereof and payment therefor in
accordance with the applicable Agreements, are valid and
legally binding obligations under the laws of the State of New
York, enforceable thereunder in accordance with their terms
against the Depositor, and are entitled to the benefits of the
Pooling and Servicing Agreement.
Homestar Mortgage Acceptance Corp., Series 2004-1 Page 4
March 5, 2004
5. With respect to each of the Seller and Depositor, the
performance of its obligations under each of the Agreements to
which it is a party and the consummation of the transactions
contemplated thereby do not require any consent, approval,
authorization or order of, filing with or notice to any United
States federal or State of New York court, agency or other
governmental body under any United States federal or State of
New York statute or regulation applicable to the Agreements,
except such as may be required under the securities laws of
any State of the United States or such as have been obtained,
effected or given.
6. With respect to each of the Seller and the Depositor, the
performance of its obligations under each of the Agreements to
which it is a party and the consummation of the transactions
contemplated thereby will not result in any breach or
violation of any United States federal or State of New York
statute or regulation applicable to the Agreements or, to our
knowledge, any order of any United States federal or State of
New York court, agency or other governmental body.
7. The Registration Statement has become effective under the 1933
Act. To our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn, and no proceedings for that purpose have
been instituted or threatened under Section 8(d) of the 1933
Act.
8. The Registration Statement as of the date of the Prospectus
Supplement and the date hereof, and the Prospectus as of the
date of the Prospectus Supplement and the date hereof, other
than any financial and statistical information, Computational
Materials and ABS Term Sheets contained or incorporated by
reference therein as to which we express no opinion herein,
complied as to form in all material respects with the
requirements of the 1933 Act and the applicable rules and
regulations thereunder.
9. To our knowledge, there are no material contracts, indentures
or other documents of a character required to be described or
referred to in either the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement, other than any Computational Materials and ABS Term
Sheets, as to which we express no opinion herein, and those
described or referred to therein or filed or incorporated by
reference as exhibits thereto.
10. The statements made in the Prospectus under the headings
"Description of the Offered Certificates" and the "Pooling and
Servicing Agreement" insofar as such statements purport to
summarize certain provisions of the Certificates and the
Pooling and Servicing Agreement, provide a fair summary of
such provisions. The statements made in the Prospectus, under
the headings "Legal Aspects of Mortgage Loans-- Applicability
of Usury Laws," and "--Alternative Mortgage Instruments" and
"ERISA Considerations" to the extent that they constitute
matters of United States federal or State of New York law or
legal conclusions with respect thereto, while not purporting
to discuss all possible consequences of investment in the
Certificates offered thereby, are correct in all material
respects with respect to those
Homestar Mortgage Acceptance Corp., Series 2004-1 Page 5
March 5, 2004
consequences or matters that are discussed therein.
11. The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
The Trust Fund created by the Pooling and Servicing Agreement
is not an "investment company" or "controlled by" an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended.
12. The Publicly Offered Securities (other than the Class M-4,
Class M-5, Class M-6, Class M-7 and Class M-8 Certificates)
will be "mortgage related securities" as defined in Section
3(a)(41) of the Securities Exchange Act of 1934, as amended,
so long as each such class is rated in one of the two highest
rating categories by at least one "nationally recognized
statistical rating organization" as that term is used in that
Section.
This opinion letter is rendered for the sole benefit of each addressee
hereof with respect to the matters specifically addressed herein, and no other
person or entity is entitled to rely hereon. Copies of this opinion letter may
not be made available, and this opinion letter may not be quoted or referred to
in any other document made available, to any other person or entity except (i)
to any applicable rating agency, institution providing credit enhancement or
liquidity support or governmental authority, (ii) to any accountant or attorney
for any person or entity entitled hereunder to rely hereon or to whom or which
this opinion letter may be made available as provided herein, (iii) in
connection with a due diligence inquiry by or with respect to any addressee that
is identified in the first paragraph hereof as a person or entity for which we
have acted as counsel in rendering this opinion letter, (iv) in order to comply
with any subpoena, order, regulation, ruling or request of any judicial,
administrative, governmental, supervisory or legislative body or committee or
any self-regulatory body (including any securities or commodities exchange or
the National Association of Securities Dealers, Inc.) and (v) as otherwise
required by law; provided that none of the foregoing is entitled to rely hereon
unless an addressee hereof. We assume no obligation to revise, supplement or
withdraw this opinion letter, or otherwise inform any addressee hereof or other
person or entity, with respect to any change occurring subsequent to the
delivery hereof in any applicable fact or law or any judicial or administrative
interpretation thereof, even though such change may affect a legal analysis or
conclusion contained herein. In addition, no attorney-client relationship exists
or has existed by reason of this opinion letter between our firm and any
addressee hereof or other person or entity except for any addressee that is
identified in the first paragraph hereof as a person or entity for which we have
acted as counsel in rendering this opinion letter. In permitting reliance hereon
by any person or entity other than such an addressee for which we have acted as
counsel, we are not acting as counsel for such other person or entity and have
not assumed and are not assuming any responsibility to advise such other person
or entity with respect to the adequacy of this opinion letter for its purposes.
Very truly yours,
/s/ Xxxxxxx Xxxxxxxx & Xxxx LLP
