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XXXXXXX, PROCTER & XXXX
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
TELEPHONE (000) 000-0000
TELECOPIER (000) 000-0000
CABLE - GOODPROCT, BOSTON
October 2, 1995
Xxxxxxx Xxxx & Xxxxxxxxx
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Acquisition by Xxxxx Xxxxxx Income Funds, on behalf of
Xxxxx Xxxxxx Utilities Fund, of Assets of Utility Portfolio,
an investment portfolio of Xxxxx Xxxxxx Funds, Inc.
Ladies and Gentlemen:
You have requested our opinion as special Massachusetts counsel to Xxxxx
Xxxxxx Income Funds (the "Trust"), a business trust organized under the laws
of the Commonwealth of Massachusetts, on behalf of the Xxxxx Xxxxxx Utilities
Fund (the "Acquiring Fund"), an investment portfolio of the Trust, in
connection with the transfer of all or substantially all of the assets of
Utility Portfolio (the "Acquired Fund"), an investment portfolio of Xxxxx
Xxxxxx Funds, Inc., a corporation organized under the laws of the State of
Maryland, in exchange for shares of beneficial interest of the Acquiring Fund
and the assumption by the Acquiring Fund of certain liabilities of the
Acquired Fund, pursuant to an Agreement and Plan of Reorganization (the
"Agreement") dated as of October 2, 1995 by and between the Trust, on behalf
of the Acquiring Fund, and Xxxxx Xxxxxx Funds, Inc., on behalf of the Acquired
Fund.
In connection with this opinion, we have examined:
1. the Agreement;
2. the First Amended and Restated Master Trust Agreement of the Trust,
dated as of November 5, 1993, as amended to date, certified by the
Assistant Secretary of the Trust (the "Declaration of Trust");
3. the By-laws of the Trust, as amended to date, certified by the
Assistant Secretary of the Trust;
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4. a certificate as of a recent date of the Secretary of State of the
Commonwealth of Massachusetts as to the good standing of the Trust
and the authority of the Trust to exercise in the Commonwealth all
of the powers recited in the Declaration of Trust and to transact
business in the Commonwealth; and
5. a certificate of the Assistant Secretary of the Trust as to, among
other things, the issuance of shares of beneficial interest of the
Trust and actions of the trustees of the Trust relating to the
adoption and approval of the Agreement.
As to matters of fact underlying the opinions expressed herein, we have
relied exclusively upon certificates of certain public officials and officers
of the Trust and upon the representations and warranties of the Trust
contained in the Agreement. We have assumed the authenticity of all documents
submitted to us as originals, the genuineness of all signatures, the legal
capacity of natural persons and the conformity to the originals of all
documents submitted to us as copies.
We have made such examination of Massachusetts law as in our judgment is
necessary and appropriate for the purposes of this opinion. We do not purport
to be experts in the laws of any jurisdiction other than the laws of the
Commonwealth of Massachusetts and our opinions expressed herein are limited
solely to the laws of the Commonwealth of Massachusetts. We have not, at your
instruction, examined independently the question of what law would govern the
interpretation or enforcement of any provision of the Declaration of Trust and
have, at your direction, assumed for purposes of this opinion that the
interpretation and enforcement of each provision of the Declaration of Trust
will be governed by the laws of the Commonwealth of Massachusetts.
As indicated below, the Trust is an entity of the type commonly known as a
"Massachusetts business trust. " Under Massachusetts law, shareholders of a
business trust may, under certain circumstances, be held personally liable for
the obligations of the Trust. The Declaration of Trust provides, however,
that if a shareholder of any sub-trust of the Trust is charged or held
personally liable solely by reason of being or having been a shareholder, the
shareholder shall be entitled out
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of the assets of the sub-trust to be held harmless from and indemnified
against all loss and expense arising from such liability. Thus, the risk of a
shareholder incurring financial loss on account of shareholder's liability is
limited to circumstances in which the sub-trust itself would be unable to meet
its obligations.
Anything in this opinion to the contrary notwithstanding, we render or
imply no opinion with respect to compliance with any applicable securities or
anti-fraud statutes, rules, regulations or other similar laws of any state
(including Massachusetts) or the United States of America. In rendering the
opinions herein, we assume that there will be no material changes in the facts
and conditions on which we base such opinions between the date hereof and the
time of issuance of the shares of beneficial interest of the Trust
representing interests in the Acquiring Fund (the "Shares") pursuant to the
Agreement.
Based upon and subject to the foregoing, we are of the opinion that all
necessary Trust action precedent to the issuance of the Shares pursuant to the
Agreement has been duly taken. We are further of the opinion that the Shares
when issued in accordance with the terms of the Agreement will be validly
issued, fully paid and nonassessable by the Trust.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement of the Trust on Form N-14 pursuant to which the Shares
are to be registered under the Securities Act of 1933, as amended. This
opinion is issued to, and may be relied upon only by, you in rendering your
opinion in connection with the registration of the Shares and this opinion may
not be used by any other person or for any other purpose without our prior
written consent.
Very truly yours,
/s/ Xxxxxxx Procter & Xxxx
XXXXXXX, XXXXXXX & XXXX
