EX-5.1 2 v199566_ex5-1.htm EX-5.1: OPINION AS TO LEGALITY

 
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