EXHIBIT 5.1
PAUL, HASTINGS, JANOFSKY & WALKER LLP
November 22, 2005
Ashton Woods USA L.L.C.
Ashton Woods Finance Co.
1080 Holcomb Bridge Road
Building 200, Suite 350
Roswell, Georgia 30076
Re: Ashton Woods USA L.L.C.
Ashton Woods Finance Co.
Registration Statement on Form S-4
Ladies and Gentlemen:
This opinion is delivered in our capacity as counsel to Ashton Woods USA
L.L.C., a Nevada limited liability company ("Ashton Woods"), Ashton Woods
Finance Co., a Delaware corporation ("Finance", and together with Ashton Woods,
"Issuers") and the subsidiaries of Ashton Woods named on Schedule I hereto
(each, a "Guarantor" and collectively, the "Guarantors"), in connection with the
Registration Statement on Form S-4 (the "Registration Statement") filed by
Issuers and the Guarantors with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"). The Registration Statement relates to the issuance by Issuers of up to
$125,000,000 aggregate principal amount of their 9.5% Senior Notes due 2015 (the
"New Notes") and the issuance by the Guarantors of guarantees (the "Guarantees")
with respect to the New Notes.
The New Notes and the Guarantees will be issued under an indenture, dated
as of September 21, 2005 (the "Indenture") among the Issuers, the Guarantors and
U.S. Bank National Association, as trustee (the "Trustee"). The New Notes and
Guarantees will be offered by the Issuers in exchange for $125,000,000 aggregate
principal amount of their outstanding 9.5% Senior Notes due 2015 and the related
guarantees of those notes.
As such counsel and for purposes of our opinions set forth below, we have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary or appropriate as a
basis for the opinions set forth herein, including, without limitation:
(i) the Registration Statement;
(ii) the Indenture;
(iii) the Notes;
Ashton Woods USA L.L.C.
Ashton Woods Finance Co.
November 22, 2005
Page 2
(iv) the Guarantees;
(v) the certificate of incorporation of Finance and the bylaws of Finance
as presently in effect as certified by the Secretary of Finance as of the
date hereof (collectively, the "Finance Charter Documents");
(vi) the formation and governance documents of Ashton Atlanta Residential,
L.L.C., a Guarantor formed as a Georgia limited liability company (the
"Georgia Guarantor") presently in effect as certified by the Secretary of
the Georgia Guarantor as of the date hereof;
(vii) a certificate of the Secretary of State of the State of Delaware as
to the incorporation and good standing of Finance under the laws of the
State of Delaware as of November 22, 2005;
(viii) a certificate of the Secretary of State of Georgia as to the
existence of the Georgia Guarantor under the laws of the State of Georgia;
and
(ix) resolutions adopted by Finance's and the Georgia Guarantor's board of
directors (or equivalent governing body), certified by the respective
Secretaries of Finance and the Georgia Guarantor, relating to the
execution and delivery of, and the performance by Finance and the Georgia
Guarantor of their respective obligations under, the Transaction
Documents.
In addition to the foregoing, we have made such investigations of law as
we have deemed necessary or appropriate as a basis for the opinions set forth
herein.
The Notes, the Guarantees and the Indenture are referred to herein,
individually, as a "Transaction Document" and, collectively, as the "Transaction
Documents".
In such examination and in rendering the opinions expressed below, we have
assumed: (i) the due authorization of all agreements, instruments and other
documents by all the parties thereto (other than the due authorization of each
such agreement, instrument and document by the Issuers and the Guarantors); (ii)
the due execution and delivery of all agreements, instruments and other
documents by all the parties thereto (other than the due execution and delivery
of each such agreement, instrument and document by the Issuers and the
Guarantors); (iii) the genuineness of all signatures on all documents submitted
to us; (iv) the authenticity and completeness of all documents, corporate
records, certificates and other instruments submitted to us; (v) that photocopy,
electronic, certified, conformed, facsimile and other copies submitted to us of
original documents, corporate records, certificates and other instruments
conform to the original documents, records, certificates and other instruments,
and that all such original documents are authentic and complete; (vi) the legal
capacity of all individuals executing documents; (vii) that the Transaction
Documents executed in connection with the transactions contemplated thereby are
the valid and binding obligations of each of the parties thereto (other than the
Issuers and the Guarantors), enforceable against such parties (other than the
Issuers and the Guarantors) in accordance with their respective terms and that
no Transaction Document has been amended or terminated orally or in writing
except as has been disclosed to us; and (viii) that the statements contained in
the certificates and comparable documents of public officials, officers and
representatives of the Issuers and the
Ashton Woods USA L.L.C.
Ashton Woods Finance Co.
November 22, 2005
Page 3
Guarantors and other persons on which we have relied for the purposes of this
opinion are true and correct. As to all questions of fact material to this
opinion and as to the materiality of any fact or other matter referred to
herein, we have relied (without independent investigation) upon certificates or
comparable documents of officers and representatives of the Company.
In addition, in rendering the opinions expressed below, we have relied
solely (without independent investigation) upon the opinions of the below listed
law firms to establish: (i) that Ashton Woods and each of the Guarantors other
than the Georgia Guarantor (the "Non-Georgia Guarantors") is validly existing
under the laws of its respective jurisdiction of incorporation or organization;
(ii) that the execution, delivery and performance by Ashton Woods and each of
the Non-Georgia Guarantors will not violate the certificate or articles of
incorporation or certificate of formation or bylaws, operating agreement or
partnership agreement, as applicable, of Ashton Woods and each such Non-Georgia
Guarantor; and (iii) that the execution, delivery and performance by Ashton
Woods and each of the Non-Georgia Guarantors will not violate the laws of the
jurisdiction of Ashton Woods' or such Non-Georgia Guarantor's organization or
other applicable laws (excepting the laws of the States of Georgia and New York
and the Federal laws of the United States). Opinions relied upon in accordance
with the foregoing, each of which is attached as an exhibit to the Registration
Statement, are the following: (i) Legal Opinion of Lionel, Sawyer & Collins,
regarding Ashton Woods and those Guarantors incorporated under the laws of the
State of Nevada; (ii) Legal Opinion of Hagan & Parsons, P.C., regarding those
Guarantors organized under the laws of the State of Texas; (iii) Legal Opinion
of Akerman Senterfitt, regarding those Guarantors organized under the laws of
the State of Florida; (iv) Legal Opinion of Holley, Albertson & Polk, P.C.,
regarding that Guarantor incorporated under the laws of the State of Colorado;
and (v) Legal Opinion of Fennemore Craig, P.C., regarding that Guarantor
incorporated under the laws of the State of Arizona.
Based upon the foregoing, and in reliance thereon, and subject to the
limitations, qualifications and exceptions set forth herein, we are of the
following opinion:
1. When the New Notes have been duly authenticated by U.S. Bank National
Association, in its capacity as Trustee, and duly executed and delivered on
behalf of the Issuers as contemplated by the Registration Statement, the New
Notes will be legally issued and will constitute valid and binding obligations
of the Issuers enforceable against the Issuers in accordance with their terms.
2. When (a) the New Notes have been duly executed, authenticated, issued
and delivered in accordance with the provisions of the Indenture upon the
exchange and (b) the Guarantees have been duly endorsed on the New Notes, the
Guarantees will constitute valid and binding obligations of the Guarantors
enforceable against the Guarantors in accordance with their terms.
Our opinions set forth above are subject to applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance and transfer, moratorium or
other laws now or hereafter in effect relating to or affecting the rights or
remedies of creditors generally and by general principles of equity (whether
applied in a proceeding at law or in equity) including, without limitation,
standards of materiality, good faith and reasonableness in the interpretation
and enforcement of contracts, and the application of such principles to limit
the availability of equitable remedies such as specific performance.
Ashton Woods USA L.L.C.
Ashton Woods Finance Co.
November 22, 2005
Page 4
We are members of the Bar of the States of New York and Georgia, and
accordingly, do not purport to be experts on or to be qualified to express any
opinion herein concerning the laws of any jurisdiction other than laws of the
States of New York and Georgia and the Delaware General Corporation Law
(including, with respect to the Delaware General Corporation Law all applicable
provisions of the Delaware Constitution and all reported judicial decisions
interpreting such law).
This opinion has been prepared for your use in connection with the
Registration Statement and may not be relied upon for any other purpose. This
opinion speaks as of the date hereof. We assume no obligation to advise you of
any change in the foregoing subsequent to the effectiveness of the Registration
Statement even though the change may affect the legal analysis or a legal
conclusion or other matters in this opinion letter.
We hereby consent to being named as counsel to the Issuers and the
Guarantors in the Registration Statement, to the references therein to our Firm
under the caption "Legal Matters" and to the inclusion of this opinion as an
exhibit to the Registration Statement. In giving this consent, we do not thereby
admit that we are within the category of persons whose consent is required under
Section 7 of the Securities Act, or the rules and regulations of the Commission
thereunder.
Very truly yours,
/s/ Paul, Hastings, Janofsky & Walker LLP
Paul, Hastings, Janofsky & Walker LLP
Ashton Woods USA L.L.C.
Ashton Woods Finance Co.
November 22, 2005
Page 5
SCHEDULE I
STATE OF
INCORPORATION/
NAME FORMATION
Ashton Woods Construction LLC AZ
Ashton Woods Corporate, LLC NV
Ashton Orlando Residential L.L.C. NV
Ashton Woods Arizona L.L.C. NV
Ashton Tampa Residential, LLC NV
Ashton Denver Residential, LLC NV
Ashton Woods Florida L.L.C. NV
Ashton Woods Butler L.L.C. NV
Ashton Woods Lakeside L.L.C. NV
Canyon Realty L.L.C. TX
Ashton Dallas Residential L.L.C. TX
Ashton Houston Residential L.L.C. TX
Ashton Houston Development LLC TX
Ashton Brookstone, Inc. TX
Black Amber Florida, Inc. FL
Ashton Burden, LLC FL
Ashton Woods Orlando Limited Partnership FL
Isleworth West Limited Partnership FL
Pinery Joint Venture CO
Ashton Atlanta Residential, L.L.C. GA