[Ropes and Gray letterhead]
September 23, 2002
The Xxxxxx Xxxxxx Fund of Boston
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxx Balanced Retirement Fund
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
We have acted as counsel in connection with the Agreement and Plan of
Reorganization made as of April 25, 2002 (the "Agreement"), by and among
The Xxxxxx Xxxxxx Fund of Boston, a Massachusetts business trust
("Acquiring Fund"), Xxxxxx Balanced Retirement Fund, a Massachusetts
business trust ("Target Fund"), and Xxxxxx Investment Management, LLC, a
Delaware limited liability company. The Agreement describes a proposed
transaction (the "Transaction") to occur on September 23, 2002 (the
"Closing Date"), pursuant to which Acquiring Fund will acquire
substantially all of the assets of Target Fund in exchange for shares of
beneficial interest in Acquiring Fund (the "Acquiring Fund Shares") and
the assumption by Acquiring Fund of certain stated liabilities of Target
Fund, following which, Acquiring Fund Shares received by Target Fund
will be distributed by Target Fund to its shareholders in liquidation
and termination of Target Fund. Capitalized terms not defined herein
are defined in the Agreement.
Target Fund is registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as an open-end management investment company.
Shares of Target Fund are redeemable at net asset value at each
shareholder's option. Target Fund has elected to be a regulated
investment company for federal income tax purposes under Section 851 of
the Internal Revenue Code of 1986, as amended (the "Code").
Acquiring Fund is registered under the 1940 Act as an open-end
management investment company. Shares of Acquiring Fund are redeemable
at net asset value at each shareholder's option. Acquiring Fund has
elected to be a regulated investment company for federal income tax
purposes under Section 851 of the Code.
For purposes of this opinion, we have considered the Agreement, the
Target Fund Proxy Statement, and such other items as we have deemed
necessary to render this opinion. In addition, you provided us with
letters dated as of the date hereof, representing as to certain facts,
occurrences and information upon which you have indicated that we may
rely in rendering this opinion (whether or not contained or reflected in
the documents and items referred to above) (the "Representations").
Based on the foregoing Representations and our review of the documents
and items referred to above, we are of the opinion that for federal
income tax purposes:
(i) The Transaction will constitute a reorganization within the meaning
of Section 368(a) of the Code, and Acquiring Fund and Target Fund will
each be a "party to a reorganization" within the meaning of Section
368(b) of the Code;
(ii) No gain or loss will be recognized by Target Fund upon the transfer
of Target Fund's assets to Acquiring Fund in exchange for Acquiring Fund
Shares and the assumption by Acquiring Fund of the liabilities of Target
Fund, or upon the distribution of Acquiring Fund Shares by Target Fund
to its shareholders in liquidation;
(iii) No gain or loss will be recognized by Target Fund shareholders
upon the exchange of their Target Fund Shares for Acquiring Fund Shares;
(iv) The aggregate basis of Acquiring Fund Shares that a Target Fund
shareholder receives in connection with the Transaction will be the same
as the aggregate basis of his or her Target Fund Shares exchanged
therefor;
(v) A Target Fund shareholder's holding period for his or her Acquiring
Fund Shares will be determined by including the period for which he or
she held the Target Fund Shares exchanged therefor, provided that he or
she held such Target Fund Shares as capital assets;
(vi) No gain or loss will be recognized by Acquiring Fund upon the
receipt of the assets of Target Fund in exchange for Acquiring Fund
Shares and the assumption by Acquiring Fund of the liabilities of Target
Fund;
(vii) The basis in the hands of Acquiring Fund of the assets of Target
Fund transferred to Acquiring Fund in the Transaction will be the same
as the basis of such assets in the hands of Target Fund immediately
prior to the transfer;
(viii) The holding periods of the assets of Target Fund in the hands of
Acquiring Fund will include the periods during which such assets were held
by Target Fund; and
(ix) Acquiring Fund will succeed to and take into account the items of
Target Fund described in Section 381(c) of the Code, subject to the
conditions and limitations specified in Sections 381, 382, 383, 384 of
the Code and the Regulations thereunder.
Our opinion is based on the Internal Revenue Code of 1986, as amended,
Treasury Regulations, Internal Revenue Service rulings, judicial
decisions, and other applicable authority, all as in effect on the date
of this opinion. The legal authorities on which this opinion is based
may be changed at any time. Any such changes may be retroactively
applied and could modify the opinion expressed above.
Very truly yours,
Ropes & Gray