EXHIBIT 5. 1
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[LETTERHEAD OF THACHER PROFFITT & WOOD]
November 2, 2000
Greenwich Capital Markets, Inc. Financial Security Assurance Inc.
600 Steamboat Road 350 Park Avenue
Greenwich, Connecticut 06830 New York, New York 10022
Opinion: Underwriting Agreement
Financial Asset Securities Corporation
Option One Mortgage Loan Trust 2000-5
Ladies and Gentlemen:
We have acted as counsel to Financial Asset Securities Corporation (the
"Depositor") and Greenwich Capital Markets, Inc. (the "Representative") in
connection with (i) the Mortgage Loan Purchase Agreement, dated November 2, 2000
(the "Mortgage Loan Purchase Agreement"), between UBS Principal Finance LLC (the
"Sponsor") and the Depositor, (ii) the Pooling and Servicing Agreement, dated as
of October 1, 2000 (the "Pooling and Servicing Agreement"), among the Depositor
as depositor, Option One Mortgage Corporation, as originator and master servicer
("Option One"), the Sponsor and Wells Fargo Bank Minnesota, N.A., as the Trustee
(the "Trustee") and the certificates issued pursuant thereto designated as
Asset-Backed Certificates, Series 2000-5 (collectively, the "Certificates"),
(iii) the Underwriting Agreement, dated October 27, 2000 (the "Underwriting
Agreement"), between the Depositor and the Representative on behalf of the
several Underwriters pursuant to which certain Certificates were sold
(collectively, the "Underwritten Certificates"), (iv) the Insurance and
Indemnity Agreement, dated November 2, 2000 (the "Insurance Agreement"), among
the Sponsor, Option One, the Depositor and Financial Security Assurance Inc.
("Financial Security"), (v) the Indemnification Agreement, dated November 2,
2000 (the "Indemnification Agreement"), among the Underwriters, the Depositor,
the Sponsor, Option One and Financial Security, (vi) the Indemnification and
Contribution Agreement, dated October 27, 2000 (the "I&C Agreement"), among the
Depositor, the Sponsor, UBS Warburg LLC, Option One and the Representative on
behalf of the several Underwriters and (iv) the Prospectus Supplement, dated
October 27, 2000 (the "Prospectus Supplement") and the Prospectus to which it
relates, dated October 13, 2000 (the "Base Prospectus"; together with the
Prospectus Supplement, the "Prospectus"). The Mortgage Loan Purchase Agreement,
the Pooling and Servicing Agreement, the
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Financial Asset Securities Corporation
November 2, 2000 Page 3
Underwriting Agreement, the Insurance Agreement, the Indemnification Agreement
and the I&C 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, we have assumed (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, 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
otherwise 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 or
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,
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Financial Asset Securities Corporation
November 2, 2000 Page 4
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
the Securities Act of 1933, as amended (the "1933 Act"), the laws of the State
of New York and the General Corporation Law of the State of Delaware. We do not
express any opinion with respect to the securities laws of any jurisdiction or
any other matter not specifically addressed in the opinions expressed below.
Based upon and subject to the foregoing, it is our opinion that:
1. The Pooling and Servicing Agreement, assuming the
authorization, execution and delivery thereof by the parties
thereto, will constitute a valid and legally binding
agreement under the laws of the State of New York,
enforceable thereunder against the Depositor in accordance
with its terms.
2. The Certificates, assuming the execution, authentication and
delivery in accordance with the Pooling and Servicing
Agreement and the delivery thereof and payment therefor in
accordance with the Underwriting Agreement, will be validly
issued and outstanding and will be entitled to the benefits of
the Pooling and Servicing Agreement.
3. Assuming compliance with the provisions of the Pooling and
Servicing Agreement, for federal income tax purposes, each
of REMIC 1, REMIC 2 and REMIC 3 will qualify as a real
estate mortgage investment conduit ("REMIC") within the
meaning of the REMIC Provisions of the Code, the Class R-1
Interests will constitute the sole class of "residual
interests" in REMIC 1, the Class R-2 Interests will
constitute the sole class of "residual interests" in REMIC
2, each of the Class A (other than the right to receive Net
WAC Rate Carryover Amounts), Class P, Class S and Class BIO
Certificates issued pursuant to the Pooling and Servicing
Agreement
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Financial Asset Securities Corporation
November 2, 2000 Page 5
will represent ownership of "regular interests" in
REMIC 3 and will generally be treated as debt instruments of
REMIC 3 and the Class R-3 Interests will constitute the sole
class of "residual certificates" in REMIC 3, within the
meaning of the REMIC Provisions in effect on the date
hereof. This opinion confirms and adopts the opinion set
forth in the 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 prospectus and
prospectus supplement included in the Registration Statement under the headings
"Material Federal Income Tax Consequences", "Certain Material Federal Income Tax
Considerations" 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,
THACHER PROFFITT & WOOD
By: /s/Thacher Proffitt & Wood
