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EXHIBIT 8.1
Vedder Price VEDDER, PRICE, KAUFMAN & KAMMHOLZ
222 NORTH LASALLE STREET
CHICAGO, ILLINOIS 60601-1003
312-609-7500
FACSIMILE: 312-609-5005
A PARTNERSHIP INCLUDING VEDDER, PRICE, KAUFMAN &
KAMMHOLZ, P.C. WITH OFFICES IN CHICAGO AND NEW YORK
CITY
November 15, 2000
Irwin Financial Corporation IFC Capital Trust II IFC Capital Trust III
500 Washington Street 500 Washington Street 500 Washington Street
Columbus, IN 47201 Columbus, IN 47201 Columbus, IN 47201
Re: Registration Statement on Form S-3
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Gentlemen:
We have acted as counsel for Irwin Financial Corporation, an Indiana
corporation (the "Company"), IFC Capital Trust II ("Capital Trust II") and IFC
Capital Trust III ("Capital Trust III"), each a statutory business trust created
under the laws of Delaware, in connection with the above-captioned Registration
Statement on Form S-3, filed with the Securities and Exchange Commission (the
"Commission") on August 24, 2000, under the Securities Act of 1933, as amended
(the "Act") (the "Registration Statement"), for the purpose of registering the
Trust Preferred Securities to be issued by Capital Trust II and the Convertible
Trust Preferred Securities to be issued by Capital Trust III, and with respect
to the Guarantee and the Junior Subordinated Debentures to be issued by the
Company to Capital Trust II and the Guarantee and the Convertible Junior
Subordinated Debentures to be issued by the Company to Capital Trust III in
connection with such issuance of the Trust Preferred Securities and Convertible
Trust Preferred Securities. All capitalized terms not otherwise defined herein
shall have the meaning as described in the Registration Statement.
In rendering this opinion, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of (i) the Certificate of Trust of
each of Capital Trust II and Capital Trust III each dated as of August 24, 2000;
(ii) the form of Amended and Restated Trust
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Agreement of each of Capital Trust II and Capital Trust III; (iii) the form of
Preferred Securities Certificate of each of Capital Trust II and Capital Trust
III; (iv) the form of Preferred Securities Guarantee Agreement for each of
Capital Trust II and Capital Trust III; (v) the form of Junior Subordinated
Debenture and Convertible Junior Subordinate Debenture; and (vi) the form of
each Indenture, in each case in the form filed as an exhibit to the Registration
Statement. We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents, certificates, and
records as we have deemed necessary or appropriate for purposes of rendering the
opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. In making our examination of
documents executed by parties other than the Company, Capital Trust II or
Capital Trust III, we have assumed that such parties had the power, corporate or
other, to enter into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action, corporate or other, and
execution and delivery by such parties of such documents and that such documents
constitute valid and binding obligations of such parties. In addition, we have
assumed that the Amended and Restated Trust Agreement of each of Capital Trust
II and Capital Trust III, the Preferred Securities of Capital Trust II, the
Convertible Preferred Securities of Capital Trust III, the Guarantees, the
Junior Subordinated Debentures, the Convertible Junior Subordinated Debentures,
and the Indentures when executed, will be executed in substantially the form
reviewed by us and that the terms of the Junior Subordinated Debentures and the
Convertible Junior Subordinated Debentures, when established in conformity with
the applicable Indenture will not violate any applicable law. As to any facts
material to the opinions expressed herein which were not independently
established or verified, we have relied upon factual statements and factual
representations of officers, trustees, and other representatives of the Company,
Capital Trust II and Capital Trust III, and others.
We hereby confirm that, the statements contained under the heading "FEDERAL
INCOME TAX CONSEQUENCES" in the form of Prospectus for the offering of the
Preferred Securities and Convertible Preferred Securities filed as part of the
Registration Statement ("Prospectus") insofar as such statements constitute
matters of law or legal conclusions, as qualified therein, are our opinion and
such statements are true, correct and complete in all material respects.
Although such statements constituting matters of law or legal conclusions do not
purport to discuss all possible United States federal income tax consequences of
the purchase, ownership and disposition of Preferred Securities and Convertible
Preferred Securities, it is our opinion that such statements are, in all
material respects, a fair and accurate summary of the United States federal
income tax consequences of the purchase, ownership and disposition of Preferred
Securities and Convertible Preferred Securities, based upon current law as they
relate
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to holders described therein. It is possible that contrary positions with regard
to the purchase, ownership and disposition of the Preferred Securities and
Convertible Preferred Securities may be taken by the Internal Revenue Service
and that a court may agree with such contrary positions.
Additionally, based upon the facts, assumptions and representations set
forth or referred to herein, and the accuracy of such facts, assumptions and
representations as of the date hereof, and assuming full compliance with the
terms of the Amended and Restated Trust Agreement of each of Capital Trust II
and Capital Trust III and the Indentures, it is our opinion that each of Capital
Trust II and Capital Trust III will be classified for United States federal
income tax purposes as a grantor trust and not as an association taxable as a
corporation. Accordingly, each beneficial owner of Preferred Securities and
Convertible Preferred Securities will be treated as owning an undivided
beneficial interest in the Junior Subordinated Debentures and Convertible Junior
Subordinate Debentures, respectively.
The opinions expressed in this letter are based on the Internal Revenue
Code of 1986, as amended, the Income Tax Regulations promulgated by the Treasury
Department thereunder and judicial authorities reported as of the date hereof.
We have also considered the position of the Internal Revenue Service (the
"Service") reflected in published and private rulings. Although we are not
aware of any pending changes to these authorities that would alter our opinions,
there can be no assurances that future legislation or administrative changes,
court decisions or Service interpretations will not significantly modify the
statements or opinions expressed herein.
Our opinion is being furnished in connection with the filing of the
Registration Statement and is limited to the federal income tax issues
specifically considered herein. It is not to be used, circulated, quoted or
otherwise referred to for any other purpose without our written consent. We do
not express any opinion as to any other United States federal income tax issues
or any state or local or foreign tax issues. Although the opinions herein are
based upon our best interpretation of existing sources of law and expresses what
we believe a court would properly conclude if presented with these issues, no
assurance can be given that such interpretations would be followed if they were
to become the subject of judicial or administrative proceedings.
We hereby consent to the use of our name under the captions "FEDERAL INCOME
TAX CONSEQUENCES" in the Prospectus and the filing of this opinion with the
Commission as Exhibit 8.1 to the Registration Statement. In giving this
consent, we do not hereby concede that we are within the category of persons
whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission promulgated thereunder. This opinion is expressed
as of the date hereof and applies only to the disclosures set forth in the
Prospectus and
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Registration Statement. We disclaim any undertaking to advise you of any
subsequent changes of the facts stated or assumed herein or any subsequent
changes in applicable law.
Very truly yours,
/s/ VEDDER, PRICE, KAUFMAN & KAMMHOLZ
