EXHIBIT 5.4
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ATTORNEYS AT LAW
Boca Raton Citrus Center, 17th Floor
Fort Lauderdale 255 South Orange Avenue
Jacksonville Orlando, Florida 32801-3483
Miami
Orlando Post Office Box 231 mail
Tallahassee Orlando, Florida 32802-0231
Tampa
West Palm Beach www.akerman.com
November 22, 2005 407 843 7860 tel 407 843 6610 fax
Ashton Woods USA L.L.C.
1080 Holcomb Bridge Road
Roswell, GA 30076
RE: ASHTON WOODS USA L.L.C. AND ASHTON WOODS FINANCE CO.
Ladies and Gentlemen:
We have acted as Florida counsel to Ashton Woods Orlando Limited Partnership, a
Florida limited partnership ("Ashton Woods Orlando"), Black Amber Florida, Inc.,
a Florida corporation ("Black Amber"), Ashton Burden, LLC, a Florida limited
liability company ("Ashton Burden") and Isleworth West Limited Partnership, a
Florida limited partnership ("Isleworth West") (each a "Guarantor" and
collectively, the "Guarantors"), subsidiaries of Ashton Woods USA L.L.C.
("Ashton Woods") in connection with the Registration Statement on Form S-4 (the
"Registration Statement") filed by Ashton Woods, Ashton Woods Finance Co.
("Ashton Finance") and the subsidiary guarantors listed in the Registration
Statement, including the Guarantors, with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Act"). The
Registration Statement relates to the issuance of by Ashton Woods and Ashton
Finance of up to $125 million aggregate principal amount of their 9.5% Senior
Subordinated Notes due 2015 (the "New Notes") and the issuance by the subsidiary
guarantors named in the Registration Statement of guarantees (each a "Guaranty"
and collectively, the "Guarantees") with respect to the New Notes, which will be
issued under an indenture referred to below. The New Notes and Guarantees will
be offered by Ashton Woods and Ashton Finance, in exchange for $125 million
aggregate principal amount of their outstanding 9.5% Senior Subordinated Notes
due 2015 and the related guarantees of those notes (the "Transaction") issued
under the Indenture, dated as of September 21, 2005 (the "Indenture"), among
Ashton Woods, Ashton Finance, the Guarantors, the other subsidiary guarantors
named therein and U.S. Bank National Association, as trustee. The Registration
Statement, Indenture and Guarantees constitute the "Transaction Documents."
In rendering our opinion, we have relied, with your approval, as to factual
matters that affect our opinion, on the following factual assumptions: (i) the
legal capacity of each natural person; (ii) the legal existence of all parties
to the Transaction Documents (other than the Guarantors); (iii) the power and
authority of each person (other than the Guarantors) to execute, deliver and
perform each document executed and delivered and to do each other act done or to
be done by such person with respect to the Transaction Documents; (iv) the
authorization, execution and
Ashton Woods USA L.L.C.
November 22, 2005
Page 2
delivery by each person (other than the Guarantors) of each document executed
and delivered by such person; (v) the payment of all required documentary
stamps, taxes and fees imposed upon the execution, filing or recording of
documents; (vi) that there have been no undisclosed modifications of any
provision of any document reviewed by us in connection with the rendering of
this opinion and no undisclosed prior waiver of any right or remedy contained in
any of the documents; (vii) the completeness of each document submitted to us,
the authenticity of each document reviewed by us as an original, the conformity
to the original of each document reviewed by us as a copy and the authenticity
of the original of each document received by us as a copy; (viii) the
truthfulness of each statement as to all factual matters otherwise not known to
us to be untruthful contained in any document encompassed within our due
diligence review; (ix) the accuracy on the date of this opinion as well as on
the date stated in all government certifications of each statement as to each
factual matter contained in such governmental certifications; (x) that all
statutes, judicial and administrative decisions, and rules and regulations of
governmental agencies constituting the law for which we are assuming
responsibility are published (e.g., reported court decisions and the specialized
reporting services of BNA, CCH and Prentice-Hall) or otherwise generally
accessible (e.g., LEXIS or WESTLAW) in each case in a matter generally available
(i.e., in terms of access and distribution following publication) to lawyers
practicing in our judicial circuit; (xi) that there are no other agreements or
understandings among the parties that would modify the terms of the Transaction
Documents or the respective rights or obligations of the parties to those
documents; and (xii) the constitutionality and validity of all relevant laws,
regulations and agency actions unless a reported case has otherwise held or
widespread concern has been expressed by commentators as reflected in materials
which lawyers routinely consult.
In rendering our opinion, we have relied, with your approval, as to factual
matters that affect our opinion, solely upon our examination of the Transaction
Documents and copies of (i) the Articles of Incorporation of Black Amber and all
amendments thereto; (ii) the Articles of Organization and Operating Agreement of
Ashton Burden and all amendments thereto; (iii) Affidavit and Certificate of
Limited Partnership and Limited Partnership Agreement of Ashton Woods Orlando
and all amendments thereto; and (iv) Affidavit and Certificate of Limited
Partnership and Limited Partnership Agreement of Isleworth West and all
amendments thereto (collectively the "Organizational Documents") and such other
agreements, instruments and documents as we have deemed necessary as a basis for
the opinions hereinafter expressed and have made no independent verification of
the facts asserted to be true and correct in the Organizational Documents or the
Transaction Documents.
As to questions of fact material to our opinion, we have relied upon
certificates of/statements from representatives of the Guarantors, without
undertaking to verify the same by independent investigation.
We are licensed to practice in Florida only and, accordingly, we express no
opinions as to matters under or involving any laws other than the laws of
Florida, and the law of the United States of America. We express no opinion as
to the applicability of the law of any particular jurisdiction to the
transactions described in this opinion.
Ashton Woods USA L.L.C.
November 22, 2005
Page 3
Based on the foregoing, and subject to the qualifications, assumptions, and
limitations stated in this letter and in the Report, we are of the opinion that:
1. Black Amber is validly existing as a corporation in
good standing under the laws of the State of Florida. Black Amber has
the corporate power and authority to execute, deliver and perform its
obligations under the Guaranty.
2. Ashton Burden is validly existing as a limited
liability company in good standing under the laws of the State of
Florida. Ashton Burden has the limited liability company power and
authority to execute, deliver and perform its obligations under the
Guaranty.
3. Ashton Woods is validly existing as a limited
partnership in good standing under the laws of the State of Florida.
Ashton Woods has the limited partnership power to execute, deliver and
perform its obligations under the Guaranty.
4. Isleworth West is validly existing as a limited
partnership in good standing under the laws of the State of Florida.
Isleworth West has the limited partnership power and authority to
execute, deliver and perform its obligations under the Guaranty.
5. The execution and delivery by the Guarantors of the
Indenture and the Guarantees and performance of the Guarantors'
obligations thereunder have been duly authorized by all necessary
corporate, limited liability company, partnership or other action on
the part of each of the Guarantors and do not and will not (i) require
any consent or approval of their stockholders, members or partners,
(ii) violate any provision of any law, rule or regulation of the State
of Florida or, to our knowledge, any order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability
to the Guarantors which violation would impair their ability to perform
their obligations under the Guarantees or (iii) violate any provisions
of the Organizational Documents.
This letter has been prepared for your use in connection with the Registration
Statement and may not be relied upon for any other purpose. The law firm of
Paul, Hastings, Janofsky & Walker LLP may rely on this opinion for purposes of
rendering its opinion in connection with the Registration Statement. The
information set forth herein speaks as of the date of this letter, and
subsequent to the effectiveness of the Registration Statement, we undertake no
obligation or responsibility to update or supplement this opinion in response to
or to make you aware of subsequent changes in the status of the Guarantors, the
law or future events or information affecting the transactions contemplated by
the documents relating to this transaction. We have conducted no investigation
or review of the business of the Guarantors, except as specifically delineated
in this letter.
We hereby consent to being named as counsel to 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
Ashton Woods USA L.L.C.
November 22, 2005
Page 4
admit that we are in the category of persons whose consent is required under
Section 7 of the Act, or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ AKERMAN SENTERFITT
AKERMAN SENTERFITT