EX-5.1: OPINION AS TO LEGALITY
Published on October 22, 2010
Exhibit
5.1
[CC
LETTERHEAD]
October
22, 2010
MFA
Financial, Inc.
350 Park
Avenue, 21st
Floor
New York,
New York 10022
Re: MFA Financial,
Inc.
Ladies
and Gentlemen:
We have
acted as counsel to MFA Financial, Inc. (“MFA”) in connection
with a registration statement under the Securities Act of 1933, as amended (the
“Registration
Statement”), relating to possible offerings from time to time by MFA of:
(1) its common stock, par value $0.01 per share (“Common Stock”);
(2) its preferred stock, par value $0.01 per share (“Preferred Stock”);
(3) its depositary shares representing shares of Preferred Stock (“Depositary Shares”);
and (4) warrants entitling the holders to purchase Common Stock, Preferred
Stock or Depositary Shares (“Warrants”)
(collectively, the Common Stock, Preferred Stock, Depositary Shares and Warrants
are the “Securities”).
In
rendering the opinion expressed below, we have examined and relied upon
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate records, documents, certificates and other instruments as in our
judgment are necessary or appropriate. In examining all such
documents, we have assumed the genuineness of all signatures, the legal capacity
of all natural persons, the authenticity of all documents submitted to us, and
the conformity with the respective originals of all documents submitted to us as
certified, telecopied, photostatic or reproduced copies.
Based on
the foregoing, and such other examination of law and fact as we have deemed
necessary, we are of the opinion that:
1. When
the board of directors of MFA (the “Board”) authorizes
the issuance of authorized but unissued Common Stock and in accordance with that
authorization that Common Stock (a) is sold for at least its par value as
contemplated in the Registration Statement or (b) is issued on exercise of
a right to convert Preferred Stock or Depositary Shares or on exercise of
Warrants, which are sold for more than the par value of the Common Stock
(including any amount paid at the time of conversion or exercise) as
contemplated in the Registration Statement, the Common Stock will be legally
issued, fully paid and non-assessable.
2. When
the Board authorizes the creation and sale of one or more series of Preferred
Stock in accordance with the provisions of MFA’s amended and restated articles
of incorporation relating to the issuance of Preferred Stock and in accordance
with that authorization that Preferred Stock is (a) sold for at least its
par value as contemplated in the Registration Statement or (b) issued on
conversion of other series of Preferred Stock or on exercise of Warrants, which
are sold for more than the par value of the Preferred Stock (including any
amount paid at the time of conversion or exercise) as contemplated in the
Registration Statement, that Preferred Stock will be legally issued, fully paid
and non-assessable.
3. When
the Board authorizes the creation and sale of Depositary Shares representing
interests in shares of particular series of Preferred Stock and in accordance
with that authorization those Depositary Shares are (a) sold for at least
the par value of the underlying Preferred Stock as contemplated in the
Registration Statement or (b) issued on conversion of other series of
underlying Preferred Stock or exercise of Warrants, which are sold for more than
the par value of the Preferred Stock (including any amount paid at the time of
conversion or exercise) as contemplated by the Registration Statement, those
Depositary Shares will be legally issued, fully paid and
non-assessable.
4. When
the Board authorizes the issuance of Warrants which provide for the issuance of
Securities upon payment of consideration equal at least to the par value of the
Securities being issued, if applicable, and which do not contain provisions
which violate applicable law, and in accordance with that authorization those
Warrants are issued as contemplated in the Registration Statement, those
Warrants will constitute valid and legally binding obligations of
MFA.
We
consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to us under the caption “Legal Matters” in the
prospectus which is a part of the Registration Statement. In giving
this consent, we do not concede that we are within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended,
or the rules and regulation of the Securities and Exchange Commission
thereunder.
Very
truly yours,
/s/
CLIFFORD CHANCE US LLP