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Section 1: 8-K (FORM 8-K)

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

____________________

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): May 9, 2019

 

____________________

 

REDWOOD TRUST, INC.

(Exact name of registrant as specified in its charter)

 

Maryland

(State or other jurisdiction of incorporation)

001-13759

(Commission File Number)

68-0329422

(IRS Employer Identification Number)

 

One Belvedere Place
Suite 300
Mill Valley, California 94941
(Address of principal executive offices, including Zip Code)

 

(415) 389-7373
(Registrant’s telephone number, including area code)

 

Not Applicable
(Former name or former address, if changed since last report)

 

____________________

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class Trading symbol(s) Name of each exchange on which registered
Common Stock, par value $0.01 per share RWT New York Stock Exchange

 

 

 

 

 

Item 8.01 Other Events.

 

Filing of Shelf Registration Statement and Prospectus Supplements

 

On May 9, 2019, Redwood Trust, Inc. (the “Company”) filed with the Securities and Exchange Commission (the “SEC”) a shelf registration statement (File No. 333-231338) (the “Registration Statement”), which became immediately effective upon filing.

 

On May 9, 2019, the Company also filed with the SEC two prospectus supplements, each dated May 9, 2019, pursuant to Rule 424(b) under the Securities Act of 1933, as amended, relating to: (i) the Company’s Direct Stock Purchase and Dividend Reinvestment Plan (the “Plan”), which is designed to provide the Company’s existing stockholders and interested new investors with a method of purchasing shares of the Company’s common stock and investing all or a percentage of their cash dividends in additional shares of common stock; and (ii) the offer and sale of shares of the Company’s common stock from time to time to or through Wells Fargo Securities, LLC, J.P. Morgan Securities LLC, Credit Suisse Securities (USA) LLC, Goldman Sachs & Co. LLC and JMP Securities LLC, as the Company’s sales agents (collectively, the “Agents”), pursuant to the distribution agreement, dated November 14, 2018, as amended, entered into by the Company and the Agents (the “Distribution Agreement”).

 

In connection with the filing of the prospectus supplements, the Company is filing as Exhibits 5.1 and 5.2 hereto opinions of its Maryland counsel, Venable LLP, regarding the legality of the validity of the securities being registered under each respective prospectus supplement. Additionally, in connection with the filing of the prospectus supplement related to the Plan, the Company is filing as Exhibit 8.1 hereto an opinion of its counsel, Latham & Watkins LLP, with respect to certain tax matters.

 

Amendment to Distribution Agreement

 

On May 9, 2019, the Company and the Agents entered into an amendment (“Amendment No. 1”) to the Distribution Agreement.

 

A copy of the Distribution Agreement is filed as Exhibit 1.1 to the Current Report on Form 8-K filed by the Company on November 15, 2018. A copy of Amendment No. 1 is filed as Exhibit 1.1 to this Current Report.

 

This Current Report shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful.

 

Item 9.01 Financial Statements and Exhibits.

 

  (d) Exhibits.

 

Exhibit No.

 

Description

1.1   Amendment No. 1 to the Distribution Agreement by and among Wells Fargo Securities, LLC, J.P. Morgan Securities LLC, Credit Suisse Securities (USA) LLC, Goldman Sachs & Co. LLC and JMP Securities LLC, dated May 9, 2019
5.1   Opinion of Venable LLP
5.2   Opinion of Venable LLP
8.1   Opinion of Latham & Watkins LLP
23.1   Consent of Venable LLP (included in Exhibit 5.1)
23.2   Consent of Venable LLP (included in Exhibit 5.2)
23.3   Consent of Latham & Watkins LLP (included in Exhibit 8.1)

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Date: May 10, 2019 REDWOOD TRUST, INC.
     
  By: /s/ Andrew P. Stone
  Name: Andrew P. Stone
  Title: Executive Vice President,
General Counsel, and Secretary

 

 

 

 

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Section 2: EX-1.1 (EXHIBIT 1.1)

Exhibit 1.1

 

REDWOOD TRUST, INC.

 

Amendment No. 1 to the Distribution Agreement

 

May 9, 2019

Wells Fargo Securities, LLC
375 Park Avenue, 4th Floor
New York, New York 10152 

 

J.P. Morgan Securities LLC

383 Madison Avenue

New York, New York 10179

 

Credit Suisse Securities (USA) LLC

11 Madison Avenue

New York, New York 10010

 

Goldman Sachs & Co. LLC

200 West Street

New York, New York 10282

 

JMP Securities LLC

600 Montgomery Street, Suite 1100

San Francisco, California 94111

 

Ladies and Gentlemen:

 

Reference is made to the Distribution Agreement, dated November 14, 2018 (the “Agreement”), among Redwood Trust, Inc., a Maryland corporation (the “Company”), and Wells Fargo Securities, LLC, J.P. Morgan Securities LLC, Credit Suisse Securities (USA) LLC, Goldman Sachs & Co. LLC and JMP Securities LLC, as an agent and/or principal under any Terms Agreement (each, an “Agent” or collectively, the “Agents”), with respect to the issuance and sale from time to time by the Company of shares of Common Stock, par value, $0.01 per share of the Company having an aggregate Gross Sales Price of up to $150,000,000 on the terms set forth in the Agreement.

 

In connection with the foregoing, the Company and the Agents wish to amend the Agreement through this Amendment No. 1 to the Agreement (this “Amendment”) to make certain changes to the Agreement with effect on and after the date hereof (the “Effective Date”).

 

SECTION 1. Definitions. Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings assigned thereto in the Agreement.

 

SECTION 2. Amendment of the Agreement. The following section shall be included as new Section 21 of the Agreement:

 

21. Recognition of the U.S. Special Resolution Regimes.

 

 - 1 - 

 

 

(a) The following definitions shall be applied to the terms used in Section 21(b) and Section 21(c) below.

 

BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).

 

Covered Entity” means any of the following:

 

(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

 

(b) In the event that any Agent that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Agent of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

(c) In the event that any Agent that is a Covered Entity or a BHC Act Affiliate of such Agent becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Agent are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

 

SECTION 3. Governing Law. This Amendment and any claim, counterclaim, controversy or dispute of any kind or nature whatsoever arising out of or in any way relating to this Amendment, directly or indirectly, shall be governed by and construed in accordance with the laws of the State of New York.

 

SECTION 4. Counterparts. This Amendment may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.

 

SECTION 5. Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Amendment.

 

 - 2 - 

 

 

 

If the foregoing correctly sets forth the understanding between the Company and each of the Agents, please so indicate in the space provided below for that purpose, whereupon this Amendment and your acceptance shall constitute a binding agreement among the Company and each of the Agents.

 

 

  Very truly yours,
     
  REDWOOD TRUST, INC.
     
     
  By: /s/ Andrew P. Stone
    Name: Andrew P. Stone
    Title: General Counsel and Secretary

 

 

[Signature Page to Amendment No. 1 to the Distribution Agreement]

 

 

 

Accepted and agreed as of the

date first above written:

 

Wells Fargo SECURITIES, LLC
     
     
By: /s/ Michael Sartorius  
  Name: Michael Sartorius  
  Title: Vice President  
     
     
J.P. Morgan securities llc
     
     
By: /s/ Stephanie Little  
  Name: Stephanie Little  
  Title: Executive Director  
     
     
credit suisse securities (USA) llc
     
     
By: /s/ Renos Savvides  
  Name: Renos Savvides  
  Title: Director  
     
     
goldman sachs & co. llc
     
     
By: /s/ Daniel Young  
  Name: Daniel Young  
  Title: Managing Director  
     
     
jmp securities llc
     
     
By: /s/ Thomas Kilian  
  Name: Thomas Kilian  
  Title: Chief Operating Officer  

 

 

 

[Signature Page to Amendment No. 1 to the Distribution Agreement]

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Section 3: EX-5.1 (EXHIBIT 5.1)

 

Exhibit 5.1

 

[LETTERHEAD OF VENABLE LLP]

 

May 9, 2019

 

Redwood Trust, Inc.

One Belvedere Place

Suite 300

Mill Valley, California 94941

 

Re:Registration Statement on Form S-3:

Direct Stock Purchase and Dividend Reinvestment Plan

 

Ladies and Gentlemen:

 

We have served as Maryland counsel to Redwood Trust, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law relating to the registration by the Company of 6,277,971 shares (the “Shares”) of common stock, $.01 par value per share, of the Company (the “Common Stock”), covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Shares may be issued from time to time pursuant to the Redwood Trust, Inc. Direct Stock Purchase and Dividend Reinvestment Plan (the “Plan”), as described under the heading “The Plan” in the Prospectus Supplement (as defined herein).

 

In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):

 

1. The Registration Statement and the related form of prospectus included therein;

 

2. The Prospectus Supplement, dated May 9, 2019 (the “Prospectus Supplement”), relating to the Plan, filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act;

 

3. The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);

 

4. The Amended and Restated Bylaws of the Company, as amended, certified as of the date hereof by an officer of the Company;

 

 

 

 

Redwood Trust, Inc.

May 9, 2019

Page 2

 

5. Resolutions adopted by the Board of Directors of the Company (the “Resolutions”), relating to the authorization of the Plan and the issuance of the Shares, certified as of the date hereof by an officer of the Company;

 

6. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;

 

7. A certificate executed by an officer of the Company, dated as of the date hereof; and

 

8. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.

 

In expressing the opinion set forth below, we have assumed the following:

 

1. Each individual executing any of the Documents, whether on behalf of such individual or any other person, is legally competent to do so.

 

2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.

 

3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid, binding and enforceable in accordance with all stated terms.

 

4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all such Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.

 

5. Upon any issuance of the Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter. None of the Shares will be issued in violation of the restrictions on ownership and transfer set forth in Article XI of the Charter.

 

 

 

 

Redwood Trust, Inc.

May 9, 2019

Page 3

 

Based upon the foregoing and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:

 

1. The Company is a corporation duly incorporated and validly existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.

 

2. The issuance of the Shares has been duly authorized and, when and if issued and delivered against payment therefor in accordance with the Registration Statement, the Resolutions and the Plan, the Shares will be validly issued, fully paid and nonassessable.

 

The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.

 

The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.

 

This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the filing of the Prospectus Supplement (the “Current Report”), which is incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Current Report and the said incorporation by reference and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act.

 

  Very truly yours,
   
  /s/ Venable LLP

 

 

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Section 4: EX-5.2 (EXHIBIT 5.2)

 

Exhibit 5.2

 

[LETTERHEAD OF VENABLE LLP

 

May 9, 2019

 

Redwood Trust, Inc.

One Belvedere Place, Suite 300

Mill Valley, California 94941

 

Re: Registration Statement on Form S-3

 

Ladies and Gentlemen:

 

We have served as Maryland counsel to Redwood Trust, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the sale and issuance from time to time of shares of Common Stock, $0.01 par value per share (the “Common Stock”), of the Company having an aggregate offering price of up to $150,000,000, of which shares of Common Stock having an aggregate offering price of $124,372,697.03 (the “Shares”) remain available for offer and sale pursuant to the Distribution Agreement (as defined below). The Shares are covered by the above-referenced Registration Statement, and all amendments related thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”). The Shares may be issued from time to time in an at-the-market public offering (the “Offering”) pursuant to a Distribution Agreement, dated as of November 14, 2018, as amended through the date hereof (as amended, the “Distribution Agreement”), by and among the Company, Wells Fargo Securities, LLC, J.P. Morgan Securities LLC, Credit Suisse Securities (USA) LLC, Goldman Sachs & Co. LLC and JMP Securities LLC.

 

In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):

 

1. The Registration Statement and the Prospectus included therein;

 

2. The Prospectus Supplement, dated May 9, 2019 (the “Prospectus Supplement”), in the form filed by the Company with the Commission pursuant to Rule 424(b) under the 1933 Act;

 

3. The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);

 

 

 

 

Redwood Trust, Inc.

May 9, 2019

Page 2

 

4. The Amended and Restated Bylaws of the Company, as amended, certified as of the date hereof by an officer of the Company;

 

5. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;

 

6. Resolutions adopted by the Board of Directors of the Company, and a duly authorized committee thereof (the “Resolutions”), relating to, among other things, the authorization of (a) the registration, sale and issuance of the Shares, (b) the execution, delivery and performance by the Company of the Distribution Agreement and (c) the delegation to designated officers of the Company of the power to determine the number and price of the Shares and certain other matters in connection with the registration, sale and issuance of the Shares, subject to the Resolutions, certified as of the date hereof by an officer of the Company;

 

7. The Distribution Agreement;

 

8. A certificate executed by an officer of the Company, dated as of the date hereof; and

 

9. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.

 

In expressing the opinion set forth below, we have assumed the following:

 

1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.

 

2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.

 

3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.

 

4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.

 

 

 

 

Redwood Trust, Inc.

May 9, 2019

Page 3

 

5. The Shares will not be issued or transferred in violation of the restrictions on transfer and ownership of shares of stock of the Company set forth in Article XI of the Charter.

 

6. Upon the issuance of any of the Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter.

 

Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:

 

1. The Company is a corporation duly incorporated and existing under the laws of the State of Maryland and is in good standing with the SDAT.

 

2. The issuance of the Shares has been duly authorized and, when and if issued and delivered against payment therefor in accordance with the Distribution Agreement, the Resolutions, the Registration Statement and the Prospectus Supplement, the Shares will be validly issued, fully paid and nonassessable.

 

The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.

 

The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.

 

 

 

 

Redwood Trust, Inc.

May 9, 2019

Page 4

 

This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Offering (the “Current Report”). We hereby consent to the filing of this opinion as an exhibit to the Current Report and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.

 

  Very truly yours,
   
  /s/ Venable LLP

 

 

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Section 5: EX-8.1 (EXHIBIT 8.1)

 

Exhibit 8.1

 

  355 South Grand Avenue, Suite 100
  Los Angeles, California  90071-1560
  Tel: +1.213.485.1234  Fax: +1.213.891.8763
  www.lw.com
     
LW_LLP FIRM / AFFILIATE OFFICES
  Beijing Moscow
  Boston Munich
  Brussels New York
  Century City Orange County
  Chicago Paris
May 9, 2019 Dubai Riyadh
  Düsseldorf San Diego
  Frankfurt San Francisco
  Hamburg Seoul
  Hong Kong Shanghai
  Houston Silicon Valley
  London Singapore
  Los Angeles Tokyo
Redwood Trust, Inc. Madrid Washington, D.C.
One Belvedere Place, Suite 300 Milan  
Mill Valley, California 94941    

 

Re: Redwood Trust, Inc.

 

Ladies and Gentlemen:

 

We have acted as special tax counsel to Redwood Trust, Inc., a Maryland corporation (“RWT”), in connection with the registration of shares of common stock of RWT issuable under RWT’s Direct Stock Purchase and Dividend Reinvestment Plan, pursuant to a registration statement on Form S-3 dated May 9, 2019 (such registration statement, together with all exhibits thereto and the documents incorporated by reference therein, the “Registration Statement”) filed by RWT with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), a prospectus dated May 9, 2019 (the “Base Prospectus”) and a prospectus supplement dated May 9, 2019 (the “Prospectus Supplement,” and together with the Base Prospectus, the “Prospectus”) filed by RWT with the Commission under the Act.

 

You have requested our opinion concerning certain of the federal income tax considerations relating to RWT, including with respect to its election to be taxed as a real estate investment trust (“REIT”). This opinion is based on certain assumptions and factual representations concerning the business, assets and governing documents of RWT and its subsidiaries as set forth in the Registration Statement and the Prospectus. We have also been furnished with, and with your consent have relied upon, certain representations made by RWT and its subsidiaries with respect to certain factual matters through a certificate of an officer of RWT, dated as of the date hereof (the “Officer’s Certificate”).

 

In our capacity as special tax counsel to RWT, we have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records and other instruments as we have deemed necessary or appropriate for purposes of this opinion. For purposes of our opinion, we have not made an independent investigation or audit of the facts set forth in the above referenced documents or in the Officer’s Certificate. In particular, we note that RWT may engage in transactions in connection with which we have not provided legal advice, and have not reviewed, and of which we may be unaware. Consequently, we have relied on your representation that the facts, statements, representations, and covenants presented in the above referenced documents and the Officer’s Certificate, or otherwise furnished to us, accurately and completely describe all material facts relevant to our opinion. In addition, in rendering this opinion we have assumed the truth and accuracy of all representations and statements made to us that are qualified as to knowledge or belief, without regard to such qualification. In our examination, 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.

 

 

 

 

May 9, 2019

Page 2

 

 

 

We are opining herein only as to the federal income tax laws of the United States, and we express no opinion with respect to the applicability thereto, or the effect thereon, of other federal laws, the laws of any state or other jurisdiction or as to any matters of municipal law or the laws of any other local agencies within any state.

 

Based on such facts and subject to the qualifications, representations, assumptions and limitations set forth herein and in the Registration Statement and the Prospectus, it is our opinion that:

 

1.Commencing with RWT’s taxable year ended December 31, 2011, RWT has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Internal Revenue Code of 1986, as amended (the “Code”), and its proposed method of operation will enable RWT to meet the requirements for qualification and taxation as a REIT under the Code; and

 

2.The statements set forth in the Base Prospectus and the Prospectus Supplement under the captions “Material U.S. Federal Income Tax Considerations” and “Supplemental Material U.S. Federal Income Tax Considerations,” respectively, insofar as they purport to describe or summarize certain provisions of the statutes or regulations referred to therein, are accurate descriptions or summaries in all material respects.

 

No opinion is expressed as to any matter not discussed herein.

 

This opinion is rendered to you as of the date of this letter, and we undertake no obligation to update this opinion subsequent to the date hereof. This opinion is based on various statutory provisions, regulations promulgated thereunder and interpretations thereof by the Internal Revenue Service and the courts having jurisdiction over such matters, all of which are subject to change either prospectively or retroactively. Any such change may affect the conclusions stated herein. Also, any variation or difference in the facts from those set forth in the Registration Statement, the Prospectus or the Officer’s Certificate may affect the conclusions stated herein. In addition, RWT’s qualification and taxation as a REIT depend upon RWT’s ability to meet the various qualification tests imposed under the Code, including through actual annual operating results, asset composition, distribution levels and diversity of stock ownership, the results of which have not been and will not be reviewed by Latham & Watkins LLP. Accordingly, no assurance can be given that the actual results of RWT’s operation for any particular taxable year will satisfy such requirements. In addition, the opinion set forth above does not foreclose the possibility that RWT may have to pay a deficiency dividend, or an excise or penalty tax, which could be significant in amount, in order to maintain its REIT qualification.

 

 

 

 

May 9, 2019

Page 3

 

 

 

This opinion is rendered only to you and is solely for your benefit in connection with the Prospectus upon the understanding that we are not hereby assuming professional responsibility to any other person whatsoever. This opinion may not be relied upon by you for any other purpose, or furnished to, assigned to, quoted to or relied upon by any other person, firm or other entity for any purpose without our prior written consent, which may be granted or withheld in our sole discretion, provided that this opinion may be relied upon by persons entitled to rely on it pursuant to applicable provisions of federal securities law.

 

We hereby consent to the filing of this opinion as an exhibit to the Prospectus and to the reference to our firm name in the Prospectus under the captions “Material U.S. Federal Income Tax Considerations” and “Legal Matters.” In giving this consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission promulgated thereunder.

 

  Very truly yours,
   
  /s/ Latham & Watkins LLP

 

 

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