Attached files
file | filename |
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8-K - FORM 8-K - Invesco Mortgage Capital Inc. | g24859e8vk.htm |
EX-5.1 - EX-5.1 - Invesco Mortgage Capital Inc. | g24859exv5w1.htm |
EX-1.1 - EX-1.1 - Invesco Mortgage Capital Inc. | g24859exv1w1.htm |
EX-99.1 - EX-99.1 - Invesco Mortgage Capital Inc. | g24859exv99w1.htm |
Exhibit 8.1
Alston&Bird LLP
950 F Street, N.W.
The Atlantic Building
Washington, DC 20004
202-756-3300
Fax: 202-756-3333
950 F Street, N.W.
The Atlantic Building
Washington, DC 20004
202-756-3300
Fax: 202-756-3333
www.alston.com
October 13, 2010
Invesco Mortgage Capital Inc.
1360 Peachtree Street, NE
Atlanta, Georgia 30309
1360 Peachtree Street, NE
Atlanta, Georgia 30309
Re: | Invesco Mortgage Capital Inc. Registration Statement on Form S-3 (Registration Statement No. 333-169104) |
Ladies and Gentlemen:
We are counsel for Invesco Mortgage Capital Inc., a Maryland corporation (the Company). We
have represented the Company in connection with the Companys filing of the above referenced shelf
registration statement (the Registration Statement) with the Securities and Exchange Commission
(the Commission) under the Securities Act of 1933, as amended (the Act).
We are furnishing this opinion letter to you pursuant to Item 16 of the Commissions Form S-3
and Item 601(b)(8) of the Commissions Regulation S-K, in connection with the Companys issuance
and sale of 13,800,000 shares of the Companys common stock, $0.01 par value, pursuant to the
Companys prospectus, dated September 10, 2010, included in the Registration Statement, and the
related preliminary and final prospectus supplements, dated October 6, 2010 and October 7, 2010,
respectively. The Shares are being issued and sold to the several underwriters named in the
Underwriting Agreement, dated as of October 7, 2010 (the Underwriting Agreement), by and among
the Company, IAS Operating Partnership, LP, a Delaware limited partnership, Invesco Advisers, Inc.,
a Delaware corporation, and Credit Suisse Securities (USA) LLC and Morgan Stanley & Co.
Incorporated, as the representatives of the several underwriters named in Schedule A therein.
Capitalized terms used in this opinion letter and not otherwise defined herein shall have the
meanings ascribed to such terms in the Underwriting Agreement.
In connection with this opinion, we have made such legal and factual inquiries as we have
deemed necessary or appropriate, including examination of the Articles of Amendment and Restatement
of the Company, the First Amended and Restated Agreement of Limited Partnership of IAS Operating
Partnership LP, dated as of July 1, 2009, the Registration Statement, the General Disclosure
Package, the Final Prospectus and such other documents as we have deemed necessary in order to
enable us to render this opinion. In addition, the Company provided us with, and we are relying
upon, a certificate (the Officers Certificate) containing certain factual representations and
covenants of an officer of the Company relating to, among other things, the actual and
October 13, 2010
Page 2
Page 2
proposed operations of the Company and the entities in which it holds direct or indirect
interests. For purposes of our opinion, however, we have not made an independent investigation of
the facts, representations and covenants set forth in the Officers Certificate, the Registration
Statement, the General Disclosure Package, the Final Prospectus or in any other document. We have
assumed and relied on the representations that the information presented in the Officers
Certificate and the Registration Statement, the General Disclosure Package, the Final Prospectus
accurately and completely describe all material facts relevant to our opinion. We have assumed
that such statements, representations and covenants are true without regard to any qualification as
to knowledge or belief. We are not, however, aware of any facts inconsistent with the
representations contained in the Officers Certificate or the facts in the above referenced
documents. Our opinion is conditioned on the continuing accuracy and completeness of such
statements, representations and covenants. Any material change or inaccuracy in the facts referred
to, set forth, or assumed herein or in the Officers Certificate may affect our conclusions set
forth herein.
In rendering the opinion set forth herein, we have assumed the authenticity of all documents
submitted to us as originals, the genuineness of all signatures thereon, the legal capacity of
natural persons executing such documents and the conformity to authentic original documents of all
documents submitted to us as copies.
Based upon the foregoing, and subject, in all respects, to the assumptions, qualifications and
limitations set forth in this opinion letter, it is our opinion that:
(i) Commencing with its taxable year ended December 31, 2009, the Company has been organized,
and has operated, in conformity with the requirements for qualification and taxation of the Company
as a REIT under the Code, and the present and proposed method of operation (as described in the
Registration Statement and the Officers Certificate) of the Company will permit the Company to
continue to so qualify.
(ii) The statements in the Registration Statement, the General Disclosure Package, the Final
Prospectus under the caption U.S. Federal Income Tax Considerations, to the extent that they
describe applicable U.S. federal income tax law, are correct in all material respects.
The Companys qualification as a REIT depends on the Companys ongoing satisfaction of the
various requirements under the Code and described in the Registration Statement under the caption
U.S. Federal Income Tax Considerations relating to, among other things, the nature of the
Companys gross income, the composition of the Companys assets, the level of distributions to the
Companys shareholders, and the diversity of the Companys ownership. Alston & Bird LLP will not
review the Companys compliance with these requirements on a continuing basis. No assurances can
be given that the Company will satisfy these requirements.
October 13, 2010
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An opinion of counsel merely represents counsels best judgment with respect to the probable
outcome on the merits and is not binding on the Internal Revenue Service or the courts. There can
be no assurance that positions contrary to our opinion will not be taken by the Internal Revenue
Service or that a court considering the issues would not hold contrary to such opinion.
Our opinion is given as of the date hereof and is based upon the Code, the Treasury
regulations promulgated thereunder, current administrative positions of the Internal Revenue
Service, and existing judicial decisions, any of which could be changed at any time, possibly on a
retroactive basis. Any such changes could adversely affect this opinion. In addition, as noted
above, our opinion is based solely on the documents that we have examined and the representations
that have been made to us and cannot be relied upon if any of the facts contained in such documents
or in such additional information is, or later becomes, inaccurate or if any of the representations
made to us is, or later becomes, inaccurate. Finally, our opinion is limited to the US federal
income tax matters specifically covered herein, and we have not opined on any other tax
consequences to the Company or any other person, and we express no opinion with respect to other
federal laws, the laws of any other jurisdiction, the laws of any state or as to any matters of
municipal law or the laws of any other local agencies within any state.
This opinion letter is provided to you for your use solely in connection with the offering of
the Common Stock and may not be used, circulated, quoted or otherwise referred to or relied upon by
any other person or for any other purpose without our express written consent or used in any other
transaction or context. No opinion other than that expressly contained herein may be inferred or
implied. This opinion letter is rendered as of the date hereof and we make no undertaking, and
expressly disclaim any duty, to supplement or update this opinion letter, if, after the date
hereof, facts or circumstances come to our attention or changes in the law occur which could affect
such opinion.
We hereby consent to the filing of this opinion letter as Exhibit 8.1 to the Registration
Statement. In giving this consent, we do not thereby admit that we are an expert within the
meaning of the Act.
Very truly yours, ALSTON & BIRD LLP |
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By: | /s/ James E. Croker, Jr. | |||
James E. Croker, Jr., Partner | ||||