EXHIBIT 5.1, 8.1, 23.1
[Letterhead of Xxxxxxx Xxxxxxxx & Xxxx LLP]
December 8, 2004
Deutsche Bank Securities Inc.,
in its capacity as Representative of the several Underwriters
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Opinion: Underwriting Agreement
Ameriquest Mortgage Securities Inc.,
Asset-Backed Pass-Through Certificates, Series 2004-R12
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Ladies and Gentlemen:
We have acted as counsel to Ameriquest Mortgage Company as seller
("Ameriquest" or the "Seller") and Ameriquest Mortgage Securities Inc. (the
"Depositor") in connection with (i) the Mortgage Loan Purchase Agreement, dated
December 1, 2004 (the "Seller Sale Agreement"), between the Seller and the
Depositor, (ii) the Pooling and Servicing Agreement, dated as of December 1,
2004 (the "Pooling and Servicing Agreement"), among the Depositor, Ameriquest
(in such capacity, the "Master Servicer"), Federal National Mortgage Association
(the "Guarantor") (with respect to the Class A-1 Certificates) and Deutsche Bank
National Trust Company (the "Trustee"), and the certificates issued pursuant
thereto designated as Asset-Backed Pass-Through Certificates, Series 2004-R-12
(the "Certificates"), (iii) the Underwriting Agreement, dated December 1, 2004
(the "Underwriting Agreement"), among the Depositor, Ameriquest and Deutsche
Bank Securities Inc., as representative of the several underwriters
(collectively the "Underwriters"), (iv) the Certified Purchase Agreement dated
December 8, 2004 (the "Purchase Agreement"), among the Depositor, Ameriquest and
Deutsche Bank Securities Inc. (in such capacity, the "Initial Purchaser"), (v)
the Commitment Letter dated as of December 1, 2004 (the "Commitment Letter")
among the Guarantor, Ameriquest, the Depositor, Deutsche Bank Securities Inc.,
Bank of America Securities LLC, Barclays Capital Inc. and UBS Securities LLC
(vi) the Prospectus Supplement, dated December 1, 2004 (the "Prospectus
Supplement"), and the Prospectus to which it relates, dated November 1, 2004
(the "Base Prospectus"; together with the Prospectus Supplement, the
"Prospectus"), (vii) the Information Circular, dated December 1, 2004 (the
"Information Circular") and (viii) the Private Placement Memorandum dated
December 8, 2004 (the "Private Placement Memorandum"). The Seller Sale
Agreement, the Pooling and Servicing Agreement, the Underwriting Agreement, the
Commitment Letter 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.
The opinions expressed below with respect to the enforceability of any
right or obligation under any agreement are 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) the effect of certain laws, regulations and judicial and other decisions
upon 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 venue or forum, to confer subject matter
jurisdiction on a federal court located within the State of New York to
adjudicate any controversy in any situation in which such court would not have
subject matter jurisdiction, to waive the right to jury trial, to impose a
penalty or forfeiture, to release, exculpate or exempt a party from, to require
indemnification of a party for, liability for its own action or inaction to the
extent that the action or inaction includes negligence, recklessness or willful
or unlawful conduct, to sever any provision of any agreement, to restrict access
to legal or equitable remedies, to establish evidentiary standards, to appoint
any person or entity as the attorney-in-fact of any other person or entity, to
require that any agreement may only be amended, modified or waived in writing,
to provide that all rights or remedies of any party are cumulative and may be
enforced in addition to any other right or remedy, to provide that the election
of a particular remedy does not preclude recourse to one or more remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of any such rights or remedies, to waive
rights or remedies which can not be waived as a matter of law, to provide for
set-off unless there is mutuality between the parties or to provide that any
agreement is to be governed by or construed in accordance with the laws of any
jurisdiction other than the State of New York, (iii) bankruptcy, insolvency,
receivership, reorganization, liquidation, voidable preference, fraudulent
conveyance and transfer, moratorium and other similar laws affecting the rights
of creditors or secured parties and (iv) public policy considerations underlying
the 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.
We do not express any opinion herein with respect to any law the violation of
which would not have any material adverse effect on the
ability of any party to perform its obligations under any agreement. However,
the non-enforceability of any such provisions 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 considerations referred to in foregoing
clause (iv) and 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. Wherever we indicate that our
opinion with respect to the existence or absence of facts is based on our
knowledge, our opinion is based solely on the actual present knowledge of the
attorneys in this firm who are directly involved in the representation of
parties to the transactions described herein in connection therewith. In that
regard we have conducted no special or independent investigation of factual
matters in connection with this opinion letter.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the federal laws of the United States including
without limitation the Securities Act of 1933, as amended (the "1933 Act") and
Sections 860A through 860G (the "REMIC Provisions") of the Internal Revenue Code
of 1986, as amended (the "Code") applicable to a real estate mortgage investment
conduit ("REMIC") and applicable regulations thereunder and current judicial and
administrative authority with respect thereto and the laws of the State of New
York. 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 laws of any jurisdiction.
Based upon and subject to the foregoing, it is our opinion that:
1. The statements made in the Base Prospectus and the Prospectus
Supplement under the heading "Federal Income Tax Consequences" and in
the Information Circular under the heading "Certain 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 I, REMIC II and REMIC III will qualify
as a REMIC, (ii) the REMIC I Regular Interests will represent ownership
of the "regular interests" in REMIC I, and the Class R-I Interest will
constitute the sole class of " residual interests" in REMIC I, (iii)
the REMIC II Regular Interests will represent ownership of the "regular
interests" in REMIC II, and the Class R-II Interest will constitute the
sole class of "residual interests" in REMIC II and (iv) each class of
Class A Certificates and Mezzanine Certificates (exclusive of any right
to receive payments from the Net WAC Rate Carryover Reserve Account),
the Class CE Certificates and the Class P Certificates (exclusive of
the right to receive any Master Servicer Prepayment Charge Payment
Amounts) will represent ownership of "regular interests" in REMIC III
and will generally
be treated as debt instruments of REMIC III, and the Class R-III
Interest will constitute the sole class of "residual interests" in
REMIC III.
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,
/s/ XXXXXXX XXXXXXXX & XXXX LLP
