EXHIBIT 99.12
[LETTERHEAD OF XXXXX, XXXXX, XXXX & XXX]
February 22, 2002
To the Persons Listed on
Schedule I Attached hereto
Re: Agreement and Plan of Reorganization for the Exchange of Stock of
Investment Grade Fixed Income Portfolio for Substantially All of the Assets of
Fixed Income III Portfolio, dated as of January 23, 2002 (the "Investment Grade
Agreement"); Agreement and Plan of Reorganization for the Exchange of Stock of
High Yield Portfolio for Substantially All of the Assets of High Yield II
Portfolio, dated as of January 23, 2002 (the "High Yield Agreement"); Agreement
and Plan of Reorganization for the Exchange of Stock of Core Plus Fixed Income
Portfolio for Substantially All of the Assets of Special Purpose Fixed Income
Portfolio, dated as of January 23, 2002 (the "Core Plus Agreement" and together
with the Investment Grade Agreement and the High Yield Agreement, the
"Reorganization Agreements")
Ladies and Gentlemen:
We have acted as counsel to Fixed Income III Portfolio ("Fixed Income
III") and to High Yield II Portfolio ("High Yield II"), each a portfolio of the
Xxxxxx Xxxxxxx Institutional Fund, Inc., a Maryland corporation, and as counsel
to Special Purpose Fixed Income Portfolio ("Special Purpose" and together with
Fixed Income III and High Yield II, "Transferor"), Investment Grade Fixed Income
Portfolio ("Investment Grade"), High Yield Portfolio ("High Yield") and Core
Plus Fixed Income Portfolio ("Core Plus" and together with Investment Grade and
High Yield, "Transferee"), each a portfolio of the Xxxxxx Xxxxxxx Institutional
Fund Trust, a Pennsylvania business trust, in connection with the proposed
transfer of substantially all of the assets of (i) Fixed Income III to
Investment Grade, (ii) High Yield II to High Yield, and (iii) Special Purpose to
Core Plus and certain other transactions related thereto pursuant to and in
accordance with the terms of the Reorganization Agreements (the
"Reorganizations"). You have requested that we provide opinions regarding the
treatment of the Reorganizations under the Internal Revenue Code of 1986, as
amended (the "Code"), and the accuracy of the tax disclosures in the proxy
statement and prospectus (the "Proxy Statement/Prospectus") on Exhibit 12 to the
Form N-14 Registration Statement.
In connection with rendering these opinions, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of (i) the
Reorganization Agreements, (ii) the
To the Persons Listed on
Schedule I Attached Hereto
February 22, 2002
Page 2
Registration Statement on Form N-14 for the Reorganization, and the Proxy
Statement/Prospectus and other documents, exhibits, attachments and schedules
contained therein, (iii) written representations of Xxxxxx Xxxxxxx Investment
Management Inc and Xxxxxx Xxxxxxx Investments LP (collectively, the "Advisors")
concerning certain facts underlying and relating to the Reorganizations set
forth in a letter dated February 22, 2002, and (iv) such other documents and
materials as we have deemed necessary or appropriate for purposes of the
opinions set forth below. In our examination, we have assumed the genuineness of
all signatures, the legal capacity of all natural persons, 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. We have not made an independent
investigation of the facts set forth either in the Registration Statement, the
Reorganization Agreement or such other documents that we have examined. We have
consequently assumed in rendering these opinions that the information presented
in such documents or otherwise furnished to us accurately and completely
describes in all material respects all facts relevant to the Reorganizations.
We have also assumed for purposes of rendering our opinions (i) the
accuracy of, and material compliance with, the representations of the Advisors
set forth in the letter referred to above, (ii) the accuracy of, and material
compliance with, the representations, warranties, covenants and agreements of
Transferor and Transferee made in the Reorganization Agreements, and (iii) that
there are no agreements or understandings other than those of which we have been
informed that would affect our conclusions set forth below.
The opinions set forth below are based on the Code, the legislative
history with respect thereto, rules and regulations promulgated thereunder, and
published rulings, court decisions and administrative authorities issued with
respect to all of the foregoing, all as in effect and existing on the date
hereof, and all of which are subject to change at any time, possibly on a
retroactive basis. In addition, there can be no assurance that positions
contrary to those stated in our opinions may not be asserted by the Internal
Revenue Service.
Any change occurring after the date hereof in, or a variation from, any
of the foregoing factual or legal bases for our opinions could affect the
conclusions set forth below.
In addition, the opinions expressed herein are given as of the date
hereof and we express no obligation to advise you of any changes in the law or
events that may hereafter come to our attention that could affect our opinions
set forth below.
Based on the foregoing, we are of the opinions that, for federal income
tax purposes:
1. The summaries of United States federal income tax consequences set
forth in the Proxy Statement/Prospectus under the headings "Synopsis -- Tax
Consequences of the Reorganizations", "The Reorganizations -- The Board's
Considerations" and "The
To the Persons Listed on
Schedule I Attached Hereto
February 22, 2002
Page 3
Reorganizations -- Tax Aspects of the Reorganizations" are accurate in all
material respects as to matters of law and legal conclusions.
2. The transfer of Transferor's assets in exchange for Transferee
Shares1/ and the assumption by Transferee of certain stated liabilities of
Transferor followed by the distribution by Transferor of Transferee Shares to
the Transferor Shareholders in exchange for their Transferor shares pursuant to
and in accordance with the terms of the Reorganization Agreements will
constitute a "reorganization" within the meaning of section 368(a)(1)(C) of the
Code, and Transferor and Transferee will each be a "party to a reorganization"
within the meaning of section 368(b) of the Code.
3. No gain or loss will be recognized by Transferee upon receipt of the
assets of Transferor solely in exchange for Transferee Shares and the assumption
by Transferee of the stated liabilities of Transferor.
4. No gain or loss will be recognized by Transferor upon the transfer
of the assets of Transferor to Transferee in exchange for Transferee Shares and
the assumption by Transferee of the stated liabilities or upon the distribution
of Transferee Shares to the Transferor Shareholders in exchange for their
Transferor shares.
5. No gain or loss will be recognized by the Transferor Shareholders
upon the exchange of the Transferor shares for Transferee Shares.
6. The aggregate tax basis for the Transferee Shares received by each
Transferor Shareholder pursuant to the Reorganizations will be the same as the
aggregate tax basis of the Transferor shares held by each such Transferor
Shareholder immediately prior to the Reorganizations.
7. The holding period of the Transferee Shares to be received by each
Transferor Shareholder will include the period during which the Transferor
shares surrendered in exchange therefore were held (provided such Transferor
shares are held as capital assets on the date of the Reorganizations).
8. The tax basis of the assets of Transferor acquired by Transferee
will be the same as the tax basis of such assets to Transferor immediately prior
to the Reorganizations.
9. The holding period of the assets of Transferor in the hands of
Transferee will include the period during which those assets were held by
Transferor.
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/1/ Capitalized terms used herein without definition have the meanings ascribed
to them in the Reorganization Agreements.
To the Persons Listed on
Schedule I Attached Hereto
February 22, 2002
Page 4
These opinions are being provided to you solely in connection with the
filing of the Registration Statement for the Reorganizations. This opinion may
not be relied upon by you for any other purpose or relied upon by or furnished
to any other person without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit
to the Proxy Statement/Prospectus and to all references to this firm under the
headings "Synopsis -- Tax Consequences of the Reorganizations" and "The
Reorganizations -- Tax Aspects of the Reorganizations" in the Proxy
Statement/Prospectus.
Sincerely,
/s/ Xxxxx, Xxxxx, Xxxx & Maw
SCHEDULE I
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Xxxxxx Xxxxxxx Institutional Fund Trust
Core Plus Fixed Income Portfolio
Xxxxxx Xxxxxxx Institutional Fund, Inc.
Fixed Income III Portfolio
Xxxxxx Xxxxxxx Institutional Fund Trust
High Yield Portfolio
Xxxxxx Xxxxxxx Institutional Fund, Inc.
High Yield II Portfolio
Xxxxxx Xxxxxxx Institutional Fund Trust
Investment Grade Fixed Income Portfolio
Xxxxxx Xxxxxxx Institutional Fund Trust
Special Purpose Fixed Income Portfolio
