EXHIBITS 5-A AND 23-B
OPINION OF DAVIS POLK & WARDWELL
January 25, 2006
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 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 with the Securities
and Exchange Commission on Form S-3ASR (as it may be amended or supplemented
from time to time, the "Registration Statement") for the purpose of registering
under the Securities Act of 1933, as amended (the "Securities Act")
$22,533,773,000.13 aggregate initial offering price of the following
securities, as such amount may be increased from time to time upon due
authorization by the Company (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 not affiliated with the Company, a basket
of such securities, an index or indices of such securities, any other property,
(b) currencies, (c) commodities or (d) any combination of the foregoing
(collectively, the "Warrants"), (iii) purchase contracts ("Purchase Contracts")
requiring the holders thereof to purchase or sell (a) securities issued by the
Company or by an entity affiliated or not affiliated with the Company, a basket
of such securities, an index or indices of such securities or any other
property, (b) currencies, (c) commodities or (d) any combination of the above,
shares of the Company's common stock, par value $.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, Debt
Securities and debt obligations issued by an entity affiliated or not
affiliated with the Company 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"), and, collectively, the "Shelf
Securities").
As used herein, the term "Debt Securities" includes prepaid Purchase Contracts
issued under an indenture.
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 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, a junior subordinated indenture dated as of
January 26, 2006 or another junior subordinated indenture in a form filed as an
exhibit to the Registration Statement, in each case, between the Company and
The Bank of New York (the "Junior Subordinated Debt Trustee"), as trustee (each
a "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
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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 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.
We have examined the originals or copies certified or otherwise identified
to our satisfaction of such additional corporate records of the Company and
such other documents and certificates as we have deemed necessary as a basis
for the opinions hereinafter expressed.
Based upon and subject to the foregoing and assuming that (i) the
Registration Statement and any amendments thereto (including post-effective
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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 that:
1. 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;
2. 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;
3. 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,
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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;
4. 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;
5. 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 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;
6. 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
7. 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.
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Our opinions in paragraphs 1, 2 and 7 above are subject to the effects of
applicable bankruptcy, insolvency and similar laws affecting the enforcement of
creditors' rights generally and equitable principles of general applicability.
We note that, as of the date of this opinion, a judgment for money in an
action based on the Securities in a federal or state court in the United States
ordinarily would be enforced in the United States only in United States
dollars. The date used to determine the rate of conversion into United States
dollars will depend upon various factors, including which court renders the
judgment.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the General
Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and further consent to the reference to our name under
the caption "Legal Matters" in each of the related prospectuses. In giving this
consent, we do not admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell
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