EX-5.1 2 d345294.txt OPINION OF TPW (CLOSING) [THACHER PROFFITT LOGO] Thacher Proffitt & Wood LLP Two World Financial Center New York, NY 10281 212.912.7400 Fax: 212.912.7751 www.tpw.com June 22, 2005 American Home Mortgage Acceptance Corp. M&T Trust Company of Delaware 520 Broadhollow Road 1220 North Market Street, Suite 202 Melville, New York 11747 Wilmington, Delaware 19801 American Home Mortgage Securities LLC Bear, Stearns & Co. Inc. 520 Broadhollow Road 383 Madison Avenue Melville, New York 11747 New York, New York 10179 American Home Mortgage Servicing, Inc. Greenwich Capital Markets, Inc. 7142 Columbia Gateway Drive 600 Steamboat Road Columbia, Maryland 21046 Greenwich, CT 06830 Deutsche Bank National Trust Company Lehman Brothers Inc. 1761 East St. Andrew Place 745 Seventh Avenue Santa Ana, California 92705-4934 New York, New York 10019 Goldman, Sachs & Co. Financial Guaranty Insurance Company 85 Broad Street 125 Park Avenue New York, NY 10004 New York, New York 10017 GMAC Mortgage Corporation UBS Securities LLC 100 Witmer Rd. 1285 Avenue of the Americas Horsham, PA 19044 New York, New York 10019 Ambac Assurance Corporation One State Street Plaza New York, NY 10004 Opinion: Underwriting Agreement American Home Mortgage Investment Trust 2005-2, Mortgage-Backed Notes, Series 2005-2 ----------------------------------------------- Ladies and Gentlemen: We have acted as counsel to American Home Mortgage Acceptance Inc. (the "Seller"), American Home Mortgage Securities LLC (the "Depositor"), American Home Mortgage Investment Trust 2005-2 (the "Issuer"), American Home Mortgage Investment Corp. ("AHMIC") and American Home Mortgage Servicing, Inc. as RMBS servicer (in that capacity, the "RMBS Servicer") and HELOC Servicer (in that capacity, the "HELOC Servicer") in connection with (i) the Mortgage Loan Purchase Agreement, dated as of June 22, 2005 (the "Seller Sale Agreement"), between the Seller and the Depositor, (ii) the Amended and Restated Trust Agreement, dated as of June 22, 2005 (the "Trust Agreement" and the "Depositor Sale Agreement"), among the Depositor, M&T Trust Company of Delaware (the "Owner Trustee") and Deutsche Bank National Trust Company and the trust certificates (the "Trust Certificates") issued pursuant thereto, (iii) the RMBS Master Servicing Agreement, dated as of June 22, 2005 (the "RMBS Master Servicing Agreement"), among the Wells Fargo Bank, N.A. (the "RMBS Master Servicer"), the Issuer and Deutsche Bank National Trust Company (the "Indenture Trustee"), (iv) the RMBS Servicing Agreement, dated June 22, 2005 (the "RMBS Servicing Agreement"), among the RMBS Master Servicer, the Issuer, the Indenture Trustee and the RMBS Servicer, (v) the HELOC Back-up Servicing Agreement, dated as of June 22, 2005 (the "HELOC Back-up Servicing Agreement"), among GMAC Mortgage Corporation (the "HELOC Master Servicer"), the Issuer, the Seller and the Indenture Trustee, (vi) the HELOC Servicing Agreement, dated as of June 22, 2005 (the "HELOC Servicing Agreement"; collectively with the RMBS Master Servicing Agreement, the RMBS Servicing Agreement and the HELOC Servicing Agreement, the "Servicing Agreements"), between the HELOC Subservicer and the HELOC Master Servicer, (vii) the Indenture, dated as of June 22, 2005 (the "Indenture"), between the Issuer, Wells Fargo Bank, N.A. (the Securities Administrator") and the Indenture Trustee, and the Mortgage-Backed Notes, Series 2005-2 (the "Notes") issued pursuant thereto, (viii) the Underwriting Agreement, dated as of June 20, 2005 (the "Underwriting Agreement"), among the Depositor, AHMIC and Lehman Brothers, Inc., Bear, Stearns & Co. Inc., Goldman, Sachs & Co., Greenwich Capital Markets, Inc. and UBS Securities LLC (collectively, the "Underwriters"), (ix) the Bill of Sale, dated June 22, 2005 (the "AHMIC Bill of Sale"), between the Depositor and AHMIC, (x) the Sale Agreement (the "AHMIC Sale Agreement"), between AHMIC and the Depositor, dated June 22, 2005, (xi) the Prospectus Supplement, dated June 20, 2005 (the "Prospectus Supplement"), and the Prospectus to which it relates, dated March 22, 2005 (the "Base Prospectus"; together with the Prospectus Supplement, the "Prospectus"), (xii) the Insurance and Indemnity Agreement, dated as of June 22, 2005 (the "Insurance and Indemnity Agreement"), among Financial Guaranty Insurance Corporation (the "Insurer"), the HELOC Servicer, the Seller, the Depositor, the Issuer, the HELOC Back-up Servicer and the Indenture Trustee and (xiii) the Indemnification Agreement, dated as of June 20, 2005 (the "Indemnification Agreement"), among Ambac Assurance Corporation ("Ambac"), AHMIC and the Depositor. The Seller Sale Agreement, the Depositor Sale Agreement, the Servicing Agreements, the Indenture, the Underwriting Agreement, AHMIC Bill of Sale, the AHMIC Sale Agreement, the Insurance and Indemnification Agreement and the Indemnification 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 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. 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 and, with respect to the opinions in paragraphs 5 (ii) and (iii) and 6 below, on the Certificate of AHMIC, a copy of which is annexed as Exhibit A and the accuracy of which we have assumed in rendering this opinion letter. 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 Limited Liability Company Act 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"). Any opinion expressed below as to the enforceability of any agreement relates only to an agreement that designates therein the laws of the State of New York as the governing law thereof. 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 Depositor has been legally formed under the laws of the State of Delaware and, based on a certificate of good standing issued by that State, is validly existing as a limited liability company in good standing under the laws of that State, and has the requisite entity power and authority to execute and deliver each Agreement to which it is a party and to perform its obligations thereunder. 2. Each of the Agreements to which the Depositor is a party has been duly authorized, executed and delivered by such party. The issuance, offer, sale and delivery of the Notes have been duly authorized by the Depositor. 3. Each of the Agreements to which the Seller, the Depositor, the Issuer, AHMIC, the RMBS Servicer or the HELOC Servicer is a party is a valid and legally binding agreement under the laws of the State of New York, enforceable thereunder in accordance with its terms against that party. 4. The Notes are valid and legally binding obligations under the laws of the State of New York, enforceable thereunder in accordance with their terms against the Issuer, and are entitled to the benefits of the Indenture. 5. With respect to each of the Seller, the Depositor, the Issuer, AHMIC, the RMBS Servicer and the HELOC Servicer, the performance of its obligations under each of the Agreements to which it is a party and the consummation of the transactions contemplated thereby will not result in (i) as to the Seller, the Depositor and AHMIC only, any breach or violation of its certificate of formation and limited liability company agreement or certificate of incorporation and bylaws, as the case may be, (ii) to our knowledge, any breach, violation or acceleration of or default under any indenture or other material agreement or instrument to which it is a party or by which it is bound or (iii) to our knowledge, any breach or violation of any order of any United States federal or State of New York court, agency or other governmental body. 6. With respect to each of the Seller, the Depositor, the Issuer, AHMIC, the RMBS Servicer and the HELOC Servicer, to our knowledge, there is no legal action, suit, proceeding or investigation before any court, agency or other governmental body pending or threatened (by written communication to it of a present intention to initiate such action, suit or proceeding) against it which, either in one instance or in the aggregate, draws into question the validity of, seeks to prevent the consummation of any of the transactions contemplated by or would impair materially its ability to perform its obligations under, any of the Agreements to which it is a party. 7. With respect to each of the Seller, the Depositor, the Issuer, AHMIC, the RMBS Servicer and the HELOC Servicer, the performance of its obligations under each of the Agreements to which it is a party or by which it is bound and the consummation of the transactions contemplated thereby do not require any consent, approval, authorization or order of, filing with or notice to any United States federal or State of New York court, agency or other governmental body under any United States federal or State of New York statute or regulation that is normally applicable to transactions of the type contemplated by the Agreements, except such as may be required under the securities laws of any State of the United States or such as have been obtained, effected or given. 8. With respect to each of the Seller, the Depositor, the Issuer, the RMBS Servicer and the HELOC Servicer, the performance of its obligations under each of the Agreements to which it is a party and the consummation of the transactions contemplated thereby will not result in any breach or violation of any United States federal or State of New York statute or regulation that is normally applicable to transactions of the type contemplated by the Agreements. 9. The Registration Statement as of the date of the Prospectus Supplement and the date hereof, and the Prospectus as of the date of the Prospectus Supplement and the date hereof, other than any financial and statistical information and other marketing materials including without limitation those generally described as term sheets and computational materials, as to which we express no opinion herein, complied as to form in all material respects with the requirements of the 1933 Act and the applicable rules and regulations thereunder. 10. To our knowledge, there are no material contracts, indentures or other documents of a character required to be described or referred to in either the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than marketing materials generally described as term sheets and computational materials, as to which we express no opinion herein, and those described or referred to therein or filed or incorporated by reference as exhibits thereto. 11. The statements made in the Base Prospectus under the heading "Description of the Securities", and the statements made in the Prospectus Supplement under the headings "Description of the Notes" and "The Indenture", insofar as such statements purport to summarize certain provisions thereof, provide a fair summary of such provisions. The statements made in the Base Prospectus under the headings "Legal Aspects of Mortgage Loans" and "ERISA Considerations" and in the Prospectus Supplement under the heading "ERISA Considerations", to the extent that those statements constitute matters of United States federal or State of New York 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. 12. The Indenture has been qualified under the Trust Indenture Act of 1939, as amended. Neither the Issuer nor the Trust Fund created by the Indenture is an "investment company" within the meaning of the Investment Company Act of 1940, as amended. 13. After the Pre-Funding Period, the Class I-A, Class II-A, Class III-A, Class IV-A, Class V-A, Class M-1, Class M-2, Class M-3 and Class V-M-1 Notes will be "mortgage related securities" as defined in Section 3(a)(41) of the Securities Exchange Act of 1934, as amended, so long as each such class is rated in one of the two highest rating categories by at least one "nationally recognized statistical rating organization" as that term is used in that Section. This is to inform you that the Registration Statement has become effective under the 1933 Act and that, to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened under Section 8(d) of the 1933 Act. To ensure compliance with requirements imposed by the U.S. Internal Revenue Service, any U.S. federal tax advice contained herein, as to which each taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor, (i) is not intended or written to be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code and (ii) is written in connection with the promotion or marketing of the transaction or matters addressed herein. This opinion letter is rendered for the sole benefit of each addressee hereof with respect to the matters specifically addressed herein, and no other person or entity is entitled to rely hereon. Copies of this opinion letter may not be made available, and this opinion letter may not be quoted or referred to in any other document made available, to any other person or entity except (i) to any applicable rating agency, institution providing credit enhancement or liquidity support or governmental authority, (ii) to any accountant or attorney for any person or entity entitled hereunder to rely hereon or to whom or which this opinion letter may be made available as provided herein, (iii) in connection with a due diligence inquiry by or with respect to any addressee that is identified in the first paragraph hereof as a person or entity for which we have acted as counsel in rendering this opinion letter, (iv) in order to comply with any subpoena, order, regulation, ruling or request of any judicial, administrative, governmental, supervisory or legislative body or committee or any self-regulatory body (including any securities or commodities exchange or the National Association of Securities Dealers, Inc.) and (v) as otherwise required by law; provided that none of the foregoing is entitled to rely hereon unless an addressee hereof. We assume no obligation to revise, supplement or withdraw this opinion letter, or otherwise inform any addressee hereof or other person or entity, with respect to any change occurring subsequent to the delivery hereof in any applicable fact or law or any judicial or administrative interpretation thereof, even though such change may affect a legal analysis or conclusion contained herein. In addition, no attorney-client relationship exists or has existed by reason of this opinion letter between our firm and any addressee hereof or other person or entity except for any addressee that is identified in the first paragraph hereof as a person or entity for which we have acted as counsel in rendering this opinion letter. In permitting reliance hereon by any person or entity other than such an addressee for which we have acted as counsel, we are not acting as counsel for such other person or entity and have not assumed and are not assuming any responsibility to advise such other person or entity with respect to the adequacy of this opinion letter for its purposes. Very truly yours, /s/ Thacher Proffitt & Wood LLP EXHIBIT A CERTIFICATE OF AMERICAN HOME MORTGAGE INVESTMENT CORP. This Certificate is being delivered to Thacher Proffitt & Wood ("TPW") for reliance hereon by TPW in rendering its opinion letter to which this Certificate is annexed (the "Opinion Letter"). The undersigned understands, acknowledges and agrees that the facts set forth in the Opinion Letter and this Certificate are being relied upon by TPW in rendering the Opinion Letter and by each addressee thereof and other parties to the transactions to which the Opinion Letter relates in the consummation of those transactions. Capitalized terms not defined herein have the meanings assigned to them in the Opinion Letter and the Agreements. The undersigned hereby represents, warrants, covenants and certifies, after reasonable investigation and review and consultation as appropriate with its attorneys and independent accountants, as follows: 1. With respect to each of the Seller, the Depositor, the Issuer, AHMIC, the RMBS Servicer and the HELOC Servicer, the performance of its obligations under each of the Agreements to which it is a party and the consummation of the transactions contemplated thereby will not result in (i) any breach, violation or acceleration of or default under any indenture or other material agreement or instrument to which it is a party or by which it is bound or (ii) any breach or violation of any order of any United States federal or State of New York court, agency or other governmental body applicable to it. 2. With respect to each of the Seller, the Depositor, the Issuer, AHMIC, the RMBS Servicer and the HELOC Servicer, there is no legal action, suit, proceeding or investigation before any court, agency or other governmental body pending or threatened (by written communication to it of a present intention to initiate such action, suit or proceeding) against it which, either in one instance or in the aggregate, draws into question the validity of, seeks to prevent the consummation of any of the transactions contemplated by or would impair materially its ability to perform its obligations under any of the Agreements to which it is a party. The undersigned has executed this Certificate as of the date of the Opinion Letter. AMERICAN HOME MORTGAGE INVESTMENT CORP. By: /s/ Alan Horn --------------- Name: Alan Horn Title: EVP, General Counsel and Secretary