[date]
Western Asset High Income Fund Inc.
620 Eighth Avenue, 49th Floor
New York, New York 10018
Western Asset High Income Opportunity Fund Inc.
620 Eighth Avenue, 49th Floor
New York, New York 10018
| Re: | HIF/HIO Merger |
Ladies and Gentlemen:
We have acted as counsel to Western Asset High Income Fund Inc., a Maryland corporation (“HIF”) and Western Asset High Income Opportunity Fund Inc., a Maryland corporation (“HIO”) in connection with the Agreement and Plan of Merger (the “Merger Agreement”), between HIF and HIO, pursuant to which HIF shall be merged with and into HIO with HIO surviving (the “Merger”) on the terms and conditions set forth therein. The time at which the Merger becomes effective is hereafter referred to as the “Effective Time.” For purposes of this opinion, capitalized terms used and not otherwise defined herein shall have the meaning ascribed thereto in the Merger Agreement. This opinion is being delivered pursuant to Section 7.5 of the Merger Agreement.
We have examined (i) the Merger Agreement, (ii) the registration statement on Form N-14 (Registration Nos. [ ] and [ ]) (as amended, the “Registration Statement”) filed by HIO with the Securities and Exchange Commission under the Securities Act of 1933, as amended and (iii) the representation letters of HIO and HIF delivered to us for purposes of this opinion (the “Representation Letters”). In addition, we have examined, and relied as to matters of fact upon, originals or copies, certified or otherwise identified to our satisfaction, of such corporate records, agreements, documents and other instruments and made such other inquiries as we have deemed necessary or appropriate to enable us to render the
| HIO/HIF | -2- | [date] |
opinion set forth below. In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies, and the authenticity of the originals of such latter documents. We have not, however, undertaken any independent investigation of any factual matter set forth in any of the foregoing.
In rendering such opinion, we have assumed, with your permission, that (i) the Merger will be effected in accordance with the Merger Agreement, (ii) the statements concerning the Merger set forth in the Merger Agreement and the Registration Statement are true, complete and correct and will remain true, complete and correct at all times up to and including the Effective Time, (iii) the representations made by HIO and HIF in their respective Representation Letters are true, complete and correct and will remain true, complete and correct at all times up to and including the Effective Time and (iv) any representations made in the Merger Agreement or the Representation Letters “to the knowledge of”, or based on the belief of HIO and HIF or similarly qualified are true, complete and correct and will remain true, complete and correct at all times up to and including the Effective Time, in each case without such qualification. We have also assumed that the parties have complied with and, if applicable, will continue to comply with, the covenants contained in the Merger Agreement.
Our opinion is based on the Internal Revenue Code of 1986, as amended (the “Code”), Treasury Regulations, administrative interpretations, and judicial precedents, in each case, as of the date hereof. If there is any subsequent change in the applicable law or regulations, or if there are subsequently any new applicable administrative or judicial interpretations of the law or regulations, or if there are any changes in the facts or circumstances surrounding the Merger, the opinion expressed herein may become inapplicable.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:
| 1. | the Merger as provided in the Merger Agreement will constitute a reorganization within the meaning of Section 368(a)(1) of the Code and that HIO and HIF will each be a “party to a reorganization” within the meaning of Section 368(b) of the Code; |
| 2. | except for consequences regularly attributable to a termination of HIF’s taxable year, no gain or loss will be recognized to HIF as a result of the Merger or upon the conversion of the shares of common stock, par value $0.001 per share, of HIF (“the HIF Common Shares”) to shares of common stock, par value $0.001 per share, of HIO (the “HIO Common Shares”); |
| 3. | no gain or loss will be recognized to HIO as a result of the Merger or upon the conversion of HIF Common Shares to HIO Common Shares; |
| HIO/HIF | -3- | [date] |
| 4. | no gain or loss will be recognized to the stockholders of HIF upon the conversion of their HIF Common Shares to HIO Common Shares, except to the extent such stockholders are paid cash in lieu of fractional HIO Common Shares in the Merger; |
| 5. | the tax basis of the HIF assets in the hands of HIO will be the same as the tax basis of such assets in the hands of HIF immediately prior to the consummation of the Merger; |
| 6. | immediately after the Merger, the aggregate tax basis of the HIO Common Shares received by each holder of HIF Common Shares in the Merger (including that of fractional share interests purchased by HIO) will be equal to the aggregate tax basis of the HIF Common Shares owned by such stockholder immediately prior to the Merger; |
| 7. | a stockholder’s holding period for HIO Common Shares (including that of fractional share interests purchased by HIO) will be determined by including the period for which he or she held HIF Common Shares converted pursuant to the Merger, provided that such HIF Common Shares were held as capital assets; |
| 8. | HIO’s holding period with respect to the HIF assets transferred will include the period for which such assets were held by HIF; and |
| 9. | the payment of cash to the holders of HIF Common Shares in lieu of fractional HIO Common Shares will be treated as though such fractional shares were distributed as part of the Merger and then redeemed by HIO with the result that the holder of HIF Common Shares will generally have a capital gain or loss to the extent the cash distribution differs from such stockholder’s basis allocable to the fractional HIO Common Shares. |
We express our opinion herein only as to those matters specifically set forth above and no opinion should be inferred as to the tax consequences of the Merger under any state, local or foreign law, or with respect to other areas of United States federal taxation. We do not express any opinion herein concerning any law other than the federal law of the United States.
We hereby consent to the filing of this opinion as Exhibit 12 to the Registration Statement, and to the references to our firm name therein.
| Very truly yours, |
| SIMPSON THACHER & BARTLETT LLP |
