EXHIBITS 5.1, 8.1 & 23.1
[Letterhead of Xxxxxxx Xxxxxxxx & Xxxx llp]
November 30, 2004
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.
Finance America 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") and Greenwich
Capital Markets, Inc. ("GCM" or the "Initial Purchaser"; together with Sandler
X'Xxxxx & Partners, L.P., the "Underwriters") in connection with (i) the
Assignment and Recognition Agreement, dated November 24, 2004 (the "Seller Sale
Agreement"), among the Seller, Finance America, LLC (the "Originator") and the
Depositor, (ii) the Pooling and Servicing Agreement, dated as of November 1,
2004 (the "Pooling and Servicing Agreement"), among the Depositor, Xxxxxx Loan
Servicing LP (the "Servicer") and Deutsche Bank National Trust Company (the
"Trustee"), and the certificates issued pursuant thereto designated as Finance
America Mortgage Loan Trust 2004-3 Asset-Backed Certificates, Series 2004-3 (the
"Certificates"), (iii) the Underwriting Agreement, dated November 30, 2004 (the
"Underwriting Agreement"), among the Depositor and the Underwriters, (iv) the
Indemnification Agreement, dated November 24, 2004 (the "Xxxxxx Indemnification
Agreement"), between the Depositor and the Servicer, (v) the Indemnification
Agreement, dated November 24, 2004 (the "Finance America Indemnification
Agreement"), between the Depositor and the Originator, (vi) the Purchase
Agreement, dated November 30, 2004 (the "Purchase Agreement") between the
Depositor and the Initial Purchaser, (vii) the Private Placement Memorandum
dated November 30, 2004 and (viii) 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 Xxxxxx Indemnification
Agreement, the Finance America 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 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.
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, and the Class R-2 Interest will constitute the sole
class of "residual interests" in REMIC 2, (iv) the Class CE
Certificates 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 the "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 (vii) the Class R-X Certificates will represent ownership
of the Class R-4 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
