Exhibits 5.1(b), 8.1(b) and 23.1(b)
Thacher Thacher Proffitt & Wood LLP
Proffitt Two World Financial Center
- --------- New York, NY 10281
212.912.7400
Fax: 212.912.7751
www.tpw.com
August 31, 2005
Financial Asset Securities Corp. Greenwich Capital Acceptance, Inc.
600 Steamboat Road 600 Steamboat Road
Greenwich, Connecticut 06830 Greenwich, Connecticut 06830
Financial Asset Securities Corp.
Greenwich Capital Acceptance, Inc.
Mortgage Backed/Asset-Backed Certificates and
Mortgage-Backed/Asset-Backed Notes
Registration Statement on Form S-3
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Ladies and Gentlemen:
We are co-counsel to Financial Asset Securities Corp., a Delaware
corporation, and Greenwich Capital Acceptance, Inc., a Delaware corporation
(the "Registrants") in connection with the registration under the Securities
Act of 1933, as amended (the "Act"), of Mortgage Backed/Asset-Backed
Certificates (the "Certificates") and Mortgage-Backed/Asset-Backed Notes (the
"Notes," and together with the Certificates, the "Securities"), and the
related preparation and filing of a Registration Statement on Form S-3 (the
"Registration Statement"). The Certificates are issuable in series, either (i)
under pooling and servicing agreements (each such agreement, a "Pooling and
Servicing Agreement"), among the related Registrant, a master servicer to be
identified in the prospectus supplement for such series of Certificates and a
trustee also to be identified in that prospectus supplement or (ii) under
trust agreements (each such agreement, a "Trust Agreement"), between the
related Registrant and a trustee to be identified in the prospectus supplement
for such series of Certificates. The Notes are issuable in series under
indentures (each such agreement, an "Indenture"; a Pooling and Servicing
Agreement, a Trust Agreement or an Indenture, an "Agreement" ), between an
issuer and an indenture trustee, to be identified in the prospectus supplement
for such series of Notes. Each Agreement will be substantially in the form
filed as an Exhibit to the Registration Statement. Capitalized terms used by
not defined herein shall have the meanings assigned to them in the
Registration Statement.
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,
New York Washington White Plains Jersey City Mexico City
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January 7, 2005
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 any opinion
expressed below, we have assumed (i) the authenticity of all documents
submitted to us as originals or as copies thereof, the conformity to the
originals of all documents submitted to us as copies, the genuineness of all
signatures and the legal capacity of natural persons, (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,
authentication, payment, delivery and enforceability (as limited by bankruptcy
and other insolvency laws) of and under 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 in a manner that affects the
correctness of any opinion expressed below. In rendering this opinion letter,
except for any matter that is specifically addressed in any opinion 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. Each assumption herein is made and
relied upon with your permission and without independent investigation.
In rendering this opinion letter, each opinion expressed and
assumption relied upon 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.
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January 7, 2005
In rendering this opinion letter, we do not express any opinion
concerning any laws other than the federal laws of the United States,
including without limitation the Internal Revenue Code of 1986, as amended
(the "Code"), and the provisions thereof applicable to a real estate mortgage
investment conduit ("REMIC"), 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 or tax laws of any jurisdiction.
The tax opinions set forth below are based upon the existing
provisions of applicable law and regulations issued or proposed thereunder,
published rulings and releases of applicable agencies or other governmental
bodies and existing case law, any of which or the effect of any of which could
change at any time. Any such changes may be retroactive in application and
could modify the legal conclusions upon which such opinions are based. The
opinions expressed herein are limited as described below, and we do not
express any opinion on any other legal or income tax aspect of the
transactions contemplated by the documents relating to the transaction.
Based on the foregoing, we are of the opinion that:
1. When a Pooling and Servicing Agreement or a Trust Agreement for
a series of Certificates has been duly authorized by all
necessary action and duly executed and delivered by the parties
thereto, such Pooling and Servicing Agreement or Trust
Agreement will be a legal and valid obligation of the related
Registrant.
2. When an Indenture for a series of Notes has been duly
authorized by all necessary action and duly executed and
delivered by the parties thereto, such Indenture will be a
legal and valid obligation of the applicable issuer.
3. When a Pooling and Servicing Agreement or a Trust Agreement for
a series of Certificates has been duly authorized by all
necessary action and duly executed and delivered by the parties
thereto, and when the Certificates of such series have been
duly executed and authenticated in accordance with the
provisions of that Pooling and Servicing Agreement or Trust
Agreement, and issued and sold as contemplated in the
Registration Statement and the prospectus and prospectus
supplement delivered in connection therewith, such Certificates
will be legally and validly issued and outstanding, fully paid
and non-assessable, and the holders of such Certificates will
be entitled to the benefits of that Pooling and Servicing
Agreement or Trust Agreement.
4. When an Indenture for a series of Notes has been duly
authorized by all necessary action and duly executed and
delivered by the parties thereto, and when the Notes of such
series have been duly executed and authenticated in accordance
with the provisions of that Indenture, and issued and sold as
contemplated in the Registration Statement and the prospectus
and prospectus supplement delivered in connection therewith,
such Notes will be legally and validly issued and
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January 7, 2005
outstanding, fully paid and non-assessable, and the holders of
such Notes will be entitled to the benefits of that Indenture.
5. For federal income tax purposes, assuming compliance with all
provisions of the related Pooling and Servicing Agreement, the
Trust Fund (or each applicable portion thereof) will qualify as
a one of more REMICs and the REMIC Certificates offered with
respect thereto will be considered to evidence ownership of
"regular interests" or "residual interests" in that REMIC
within the meaning of the REMIC Provisions. This opinion
confirms and adopts the opinion set forth in the Prospectuses
and Prospectus Supplements which form a part of this
Registration Statement.
6. For federal income tax purposes, assuming compliance with all
provisions of the related Indenture, Owner Trust Agreement and
certain related documents and upon issuance of the Notes, (i)
the Notes will be treated as indebtedness and (ii) the issuer,
as created pursuant to the terms and conditions of the Owner
Trust Agreement, will not be characterized as an association
(or publicly traded partnership) taxable as a corporation or as
a taxable mortgage pool. This opinion confirms and adopts the
opinion set forth in the Prospectuses and Prospectus
Supplements which form a part of this Registration Statement.
7. For federal income tax purposes, assuming compliance with all
provisions of the related Pooling and Servicing Agreement and
upon issuance of such Grantor Trust Certificates, the related
Grantor Trust Fund will be classified as a grantor trust under
subpart E, part I of subchapter J of the Code and not as a
partnership or an association taxable as a corporation. This
opinion confirms and adopts the opinion set forth in the
Prospectuses and Prospectus Supplements which form a part of
this Registration Statement.
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 prospectuses
included in the Registration Statement under the heading "Legal Matters" and
in the prospectus supplement for any series of Securities in which our name
appears under the heading "Legal Matters" and/or "Federal Income Tax
Consequences", without admitting that we are "experts" within the meaning of
the Act, and the rules and regulations thereunder, with respect to any part of
the Registration Statement, including this Exhibit.
Very truly yours,
THACHER PROFFITT & WOOD LLP