Exhibit 5-a
SIDLEY AUSTIN BROWN & WOOD LLP
BEIJING 787 SEVENTH AVENUE LOS ANGELES
---- NEW YORK, NEW YORK 10019 -----
BRUSSELS TELEPHONE 212 839 5300 NEW YORK
---- FACSIMILE 212 839 5599 -----
CHICAGO www.sidley.com SAN FRANCISCO
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DALLAS FOUNDED 1866 SHANGHAI
---- ----
GENEVA SINGAPORE
---- ----
HONG KONG TOKYO
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LONDON WASHINGTON, D.C.
November 14, 2005
Morgan Stanley
1585 Broadway
New York, NY 10036
Ladies and Gentlemen:
We have acted as counsel to Morgan Stanley, a Delaware corporation (the
"Company"), and depositor of Morgan Stanley Capital Trust VI, Morgan Stanley
Capital Trust VII, Morgan Stanley Capital Trust VIII, Morgan Stanley Capital
Trust IX and Morgan Stanley Capital Trust X, each a statutory trust formed under
the laws of the State of Delaware (each, an "Issuer Trust" and, collectively,
the "Issuer Trusts"), in connection with the preparation and filing of a
registration statement on Form S-3, Registration Numbers 333-129243,
333-129243-01, 333-129243-02, 333-129243-03, 333-129243-04 and 333-129243-05 (as
it may be amended or supplemented from time to time, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to $30,000,000,000 aggregate initial offering price of the
following securities (collectively, the "Securities"): (i) debt securities
("Debt Securities"), (ii) warrants to purchase or sell (a) securities issued by
the Company or by an entity affiliated or unaffiliated with the Company, a
basket of such securities, an index or indices of such securities, any other
property or any combination of the above, (b) currencies or (c) commodities
("Warrants"), (iii) purchase contracts requiring the holders thereof to purchase
or sell (a) securities issued by the Company or by an entity affiliated or
unaffiliated with the Company, a basket of such securities, an index or indices
of such securities, any other property or any combination of the above, (b)
currencies or (c) commodities ("Purchase Contracts"), (iv) shares of the
Company's common stock, par value $0.01 per share ("Common Stock"), (v) shares
of the Company's preferred stock, par value $0.01 per share ("Preferred Stock"),
to be issued from time to time in one or more series, (vi) an indeterminate
number of depositary shares representing fractional interests in shares or
multiple shares of the Preferred Stock (the "Depositary Shares"), (vii)
Warrants, Purchase Contracts, Common Stock, Preferred Stock and Debt Securities
or any combination thereof that may be offered in the form of Units ("Units"),
(viii) capital securities of the Issuer Trusts (the "Capital Securities") and
(ix) guarantees of the Company with respect to the Capital Securities (the
"Guarantees").
The Debt Securities and certain Purchase Contracts that require the holders
thereof to satisfy their obligations thereunder when such Purchase Contracts are
issued and settle
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November 14, 2005
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in cash ("Cash-settled Pre-paid Purchase Contracts" and, together with Purchase
Contracts that contain a similar requirement but do not settle in cash,
"Pre-paid Purchase Contracts"), if any, are to be issued from time to time as
either (a) senior indebtedness of the Company under a senior indenture dated as
of November 1, 2004, between the Company and JPMorgan Chase Bank (the "Senior
Debt Trustee"), as trustee (the "Senior Indenture"), (b) subordinated
indebtedness of the Company under a subordinated indenture dated as of October
1, 2004, between the Company and J.P. Morgan Trust Company, National Association
(the "Subordinated Debt Trustee"), as trustee (the "Subordinated Indenture"), or
(c), in the case of Debt Securities issued and sold by the Company to an Issuer
Trust, junior subordinated indebtedness of the Company under a junior
subordinated indenture dated as of October 1, 2004, between the Company and The
Bank of New York (the "Junior Subordinated Debt Trustee"), as trustee (the
"Junior Subordinated Indenture" and, together with the Senior Indenture and the
Subordinated Indenture, the "Indentures"). The Warrants, if any, will be issued
under a Warrant Agreement to be entered into between the Company and a bank or
trust company, as warrant agent (the "Warrant Agreement"). The Purchase
Contracts (other than Cash-settled Pre-paid Purchase Contracts) and Units, if
any, may be issued under one or more unit agreements to be entered into among
the Company, a bank or trust company, as unit agent, and the holders from time
to time of the Units (each such unit agreement, a "Unit Agreement"). Units that
include Purchase Contracts that are all Pre-paid Purchase Contracts may be
issued under one or more Unit Agreements designed for Units where the holders do
not have any further obligations under the Purchase Contracts (such Unit
Agreements are referred to as "Unit Agreements Without Holders' Obligations").
Depositary Shares representing fractional interests in shares or multiple shares
of Preferred Stock, if any, will be issued under a preferred stock deposit
agreement to be entered into among the Company, The Bank of New York, as
depositary, and the holders from time to time of depositary receipts issued
thereunder (the "Deposit Agreement").
The Capital Securities of each Issuer Trust will be issued pursuant to an
amended and restated trust agreement (each a "Trust Agreement" and,
collectively, the "Trust Agreements") of such Issuer Trust to be entered into
among the Company, as depositor of such Issuer Trust (the "Depositor"), The Bank
of New York, as property trustee, The Bank of New York (Delaware), as Delaware
trustee, two individuals selected by the Depositor as administrators with
respect to such Issuer Trust and the holders of the Common Securities and the
Capital Securities of such Issuer Trust.
The Indentures and the forms of the Warrant Agreement, the Unit Agreement,
the Unit Agreement Without Holders' Obligations, the Deposit Agreement, the
Trust Agreements and the Securities are filed or incorporated by reference as
exhibits to the Registration Statement.
In rendering this opinion, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of such corporate records and other
documents and certificates as we deemed necessary or appropriate as a basis for
the opinions set forth herein. In such 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
the original documents of all documents submitted to us as copies and the
authenticity of the
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November 14, 2005
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originals of all such latter documents. In making our examination of executed
documents or documents to be executed, we have assumed that the parties thereto,
other than the Company and the Issuer Trusts, had or will have the power,
corporate, trust 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 Indentures, the Warrant Agreement, the Unit
Agreement, the Unit Agreement Without Holders' Obligations, the Deposit
Agreement, the Trust Agreements, the Guarantees and the Securities will be
executed in substantially the form reviewed by us and that the terms of the
Securities will have been established so as not to violate, conflict with or
constitute a default under (i) any agreement or instrument to which the Company
or any of the Issuer Trusts or their respective property is subject, (ii) any
law, rule, or regulation to which the Company or any of the Issuer Trusts is
subject, (iii) any judicial or administrative order or decree of any
governmental authority or (iv) any consent, approval, license, authorization or
validation of, or filing, recording or registration with, any governmental
authority. We have also assumed that (i) the stock certificates evidencing the
Preferred Stock to be issued will be in a form that complies with, and the terms
of such Preferred Stock will be duly established in accordance with, the General
Corporation Law of the State of Delaware (the "DGCL"), and (ii) the stock
certificates evidencing any Common Stock issued will conform to the specimen
certificate examined by us and will be duly executed and delivered. As to any
facts material to the opinions expressed herein that were not independently
established or verified, we have relied upon oral or written statements and
representations of officers, trustees and other representatives of the Company,
the Issuer Trusts and others.
Based upon and subject to the foregoing and assuming that (i) the
Registration Statement and any amendments thereto (including post-effective
amendments) will have become effective and comply with all applicable laws; (ii)
the Registration Statement will be effective and will comply with all applicable
laws at the time the Securities are offered or issued as contemplated by the
Registration Statement; (iii) a prospectus supplement will have been prepared
and filed with the Securities and Exchange Commission describing the Securities
offered thereby and will comply with all applicable laws; (iv) all Securities
will be issued and sold in compliance with applicable federal and state
securities laws and in the manner stated in the Registration Statement and the
appropriate prospectus supplement; (v) the Company's Board of Directors (or a
committee thereof duly authorized to act on its behalf) (the "Board") and
appropriate officers of the Company have taken all necessary corporate action to
approve the terms of the Securities and the terms of the offering; and (vi) a
definitive purchase, underwriting or similar agreement and any other necessary
agreement with respect to any Securities offered or issued will have been duly
authorized and validly executed and delivered by the Company and the other
parties thereto; we are of the opinion as follows:
(i) the Indentures, the Warrant Agreement, the Unit Agreement, the Unit
Agreement Without Holders' Obligations, the Deposit Agreement and the
Securities, other than the Capital Securities, have been duly authorized by the
Company;
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(ii) when the Warrant Agreement and the Unit Agreement and/or the Unit
Agreement Without Holders' Obligations, as applicable, have been duly executed
and delivered by the Company, the terms of the Debt Securities, the Warrants,
the Purchase Contracts and the Units have been established by the officers of
the Company given authority to do so by the Board and the Debt Securities, the
Warrants, the Purchase Contracts and the Units have been duly authenticated
and/or countersigned, executed and issued in accordance with the provisions of
the applicable Indenture, the Warrant Agreement, the Unit Agreement and/or the
Unit Agreement Without Holders' Obligations, as applicable, respectively, and
duly paid for by the purchasers thereof in accordance with the applicable
definitive purchase, underwriting or similar agreement, all required corporate
action of the Company will have been taken with respect to the issuance and sale
of the Debt Securities, the Warrants, the Purchase Contracts and the Units and
such Securities will have been validly issued and will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms;
(iii) with respect to an offering of any shares of Common Stock, when both
(A) the Board has taken all necessary corporate action to approve the issuance
of and the terms of the offering of the shares of Common Stock and related
matters and (B) certificates representing the shares of Common Stock have been
duly executed, countersigned, registered and delivered in accordance with the
applicable definitive purchase, underwriting or similar agreement upon payment
of the consideration therefor provided for therein, such shares of Common Stock
will be duly and validly issued, fully paid and nonassessable, assuming that a
sufficient number of shares of Common Stock is authorized and available for
issuance and that the consideration therefor is not less than the par value of
the shares of Common Stock;
(iv) with respect to an offering of any shares of Preferred Stock, when
both (A) the Board has taken all necessary corporate action to approve the
issuance and terms of the shares of Preferred Stock, the terms of the offering
thereof and related matters, including the adoption of a Certificate of
Designation relating to such Preferred Stock and the filing of the Certificate
of Designation with the Secretary of State of the State of Delaware, and (B)
certificates representing the shares of Preferred Stock have been duly executed,
countersigned, registered and delivered in accordance with the applicable
definitive purchase, underwriting or similar agreement upon payment of the
consideration therefor provided for therein, such shares of Preferred Stock will
be duly and validly issued, fully paid and nonassessable, assuming that a
sufficient number of shares of Preferred Stock is authorized and available for
issuance and that the consideration therefor is not less than the par value of
the shares of Preferred Stock;
(v) if shares of Common Stock or Preferred Stock are issuable upon
conversion, exercise or exchange of Debt Securities, Preferred Stock, Warrants
or Purchase Contracts, as applicable, the shares issuable upon conversion,
exercise or exchange will be duly and validly issued, fully paid and
nonassessable, assuming (i) that the conversion, exercise or exchange of the
Debt Securities, Preferred Stock, Warrants or Purchase Contracts, as applicable,
is in accordance with the terms of applicable Indenture, Certificate of
Designation, Warrant or Purchase Contract, respectively, for the consideration
approved by the Board, (ii) that a sufficient number of shares of Common Stock
or Preferred Stock, as applicable, is authorized and, in the
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November 14, 2005
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case of an issuance upon conversion or exchange, reserved and available for
issuance and (iii) that the consideration for the shares of Common Stock or
Preferred Stock, as applicable, is not less than par value of such shares;
(vi) when the Deposit Agreement has been duly executed and delivered by the
Company and, if applicable, when the Depositary Shares have been duly issued in
accordance with the provisions of the Deposit Agreement and paid for by the
purchasers thereof in accordance with the applicable definitive purchase,
underwriting or similar agreement, such Depositary Shares will represent legal
and valid interests in the corresponding shares of Preferred Stock; and
(vii) when a Guarantee has been duly executed and delivered by the Company,
all corporate actions of the Company will have been taken with respect to the
issuance of such Guarantee, and such Guarantee will constitute a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms.
The opinions set forth herein are limited to matters of the laws of the
State of New York and the DGCL. The opinions expressed herein are based on laws
in effect on the date hereof, which laws are subject to change with possible
retroactive effect. Any opinion expressed herein as to enforceability is
qualified in that such enforceability may be limited by (i) bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally, (ii) general principles of equity,
regardless of whether such enforcement is considered at a proceeding in equity
or at law, (iii) requirements that a claim with respect to Debt Securities that
are denominated in a foreign currency (or a foreign currency judgment in respect
of such claim) be converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (iv) governmental authority
to limit, delay or prohibit making payments in foreign currency or currency
units or payments outside the United States. We note that a judgment for money
in an action based on a Security denominated in a foreign currency, currency
unit or composite currency in a federal or state court in the United States
ordinarily would be enforced in the United States only in U.S. dollars, although
certain states, including the State of New York, provide for the rendering of
judgments in foreign currencies. The date used to determine the rate of
conversion of the foreign currency, currency unit or composite currency in which
a particular Security is denominated into U.S. dollars will depend upon various
factors, including which court renders the judgment.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm appearing under the
caption "Legal Matters" in each of the related prospectuses. In giving such
consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Sidley Austin Brown & Wood LLP