Exhibit (5) & (23)
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
---- ----
DALLAS FOUNDED 1866 SHANGHAI
---- ----
GENEVA SINGAPORE
---- ----
HONG KONG TOKYO
---- ----
LONDON WASHINGTON, D.C.
August 23, 2005
JPMorgan Chase Bank, N.A.
4 New York Plaza, 15th Floor
New York, New York 10004
Re: Merrill Lynch & Co., Inc.
Merrill Lynch Extendible Monthly Securities
issued as a series of Merrill Lynch & Co., Inc.'s
Medium-Term Notes, Series C, Due Nine Months or More from Date of Issue
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Dear Sir or Madam:
As counsel for Merrill Lynch & Co., Inc. (the "Company"), we have been
requested to render this opinion to you pursuant to Section 303 of the
Indenture, dated as of April 1, 1983, as amended, restated and supplemented
through the date hereof (the "Indenture"), between the Company and you, as
Trustee, in connection with the issuance thereunder and sale by the Company of
$3,250,000,000 aggregate principal amount of its Merrill Lynch Extendible
Monthly Securities issued as a series of the Company's Medium-Term Notes,
Series C, Due Nine Months or More from Date of Issue and any notes issued
pursuant to the aforementioned notes (collectively, the "Notes"). The Notes
are to be issued and sold by the Company pursuant to a Distribution Agreement
dated December 15, 2004 (the "Distribution Agreement"), as
amended, and as supplemented by a Letter Agreement among the Company, Merrill
Lynch Pierce Fenner & Smith Incorporated, Fifth Third Securities, Inc. and
Keybanc Capital Markets, a division of McDonald Investments Inc. dated August
16, 2005 (the "Letter Agreement").
As counsel for the Company, we are familiar with the Indenture,
including the provisions of such Indenture setting forth the conditions
precedent to the issuance of securities thereunder, and are familiar with the
various corporate proceedings of the Company to date relating to the Indenture
and to the issue and sale of the Notes. In addition, we have examined such
other documents and records and made such investigation as we deemed
appropriate or necessary in connection with expressing an informed opinion
upon the following matters.
Based upon the foregoing, it is our opinion that:
(a) the Indenture has been duly authorized, executed and delivered by
the Company;
(b) the forms and terms of the Notes have been established in
conformity with the provisions of the Indenture;
(c) all conditions precedent to the authentication and delivery of
the Notes have been complied with and the Notes, when authenticated and
delivered by the Trustee and issued and delivered by the Company against
payment therefor as specified in the Distribution Agreement and Letter
Agreement, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting creditors' rights generally and
except as enforcement thereof is subject to general principles of
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equity (regardless of whether the enforcement is considered in a proceeding in
equity or at law); and
(d) all applicable laws and requirements in respect of the execution
and delivery by the Company of the Notes have been complied with.
Very truly yours,
/s/ Sidley Austin Brown & Wood
OPTION TO EXTEND MATURITY
The undersigned hereby elects to extend the maturity of the Merrill
Lynch & Co., Inc. Floating Rate Renewable Note No. ______________ (CUSIP No.
590188451) or the portion thereof specified below.
For the election to extend maturity to be made, the Trustee must receive
at its Corporate Trust Office, or at such other place or places of which the
Company shall from time to time notify the Holder, this Note with this "Option
to Extend Maturity" form duly completed. This Note must be received by the
Trustee by the close of business, New York City time, on the last day for
giving such notice, as described in this Note.
If less than the entire principal amount of this Note is to be extended,
specify the portion hereof (which shall be in an amount equal to $1,000 or an
integral multiple thereof, provided that any remaining principal amount shall
be an authorized denomination) which the Holder elects to have extended and
specify the denomination or denominations (which shall be in an amount equal
to an authorized denomination) of the Notes to be issued to the Holder for the
portion of this Note not being extended (in the absence of any such
specification, one such Note shall be issued for the portion not being
extended).
$ ________________________ _______________________________________
NOTICE: The signature on this Option to
Extend Maturity must correspond with
Date _____________________ the name as written upon the face of
this Note in every particular, without
alteration or enlargement or any change
whatever.
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SCHEDULE I
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $3,250,000,000. The following
exchanges of a portion of this Note for an interest in a fixed maturity note,
have been made:
Reduced Principal
Principal Amount Amount Outstanding Notation Made by or
Exchanged for Fixed Following on Behalf
Date of Exchange Maturity Note Such Exchange of the Trustee
- ---------------- ------------------- ------------------- -------------------
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ASSIGNMENT/TRANSFER FORM
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FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Taxpayer Identification
No.)_______________________________________________ (Please print or typewrite
name and address including postal zip code of
assignee)_____________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________________________ attorney to transfer said
Note on the books of the Company with full power of substitution in the
premises.
Date ______________________ _______________________________________________
NOTICE: The signature of the registered
Holder to this assignment must correspond
with the name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or any
change whatsoever.
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Exhibit A
FORM OF FLOATING RATE GLOBAL MEDIUM-TERM NOTE
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE
THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") TO A NOMINEE OF THE DEPOSITORY OR
BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
REGISTERED PRINCIPAL AMOUNT
No. CUSIP No. ________ $_____________
Stated Maturity: _________ Original Issue Date: ______
MERRILL LYNCH & CO., INC.
MEDIUM-TERM NOTE,
SERIES C
Merrill Lynch Extendible Monthly Securities
(Election not made) (the "Note")
MERRILL LYNCH & CO., INC., a Delaware corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum specified above on the Stated
Maturity specified above, and to pay interest thereon, at a rate per annum
determined in accordance with the provisions hereof, until the principal
hereof is paid or duly made available for payment.
This Note may be not be redeemed at the option of the Company in whole
or in part.
The Company shall pay interest on the fifteenth calendar day of each
month, commencing September 15, 2005 and on the Stated Maturity (each an
"Interest Payment Date"); (such Stated Maturity and the date on which
principal or an installment of principal is due and payable by declaration of
acceleration pursuant to the Indenture being referred to hereinafter as a
"Maturity" with respect to principal payable on such date); provided, however,
that if an Interest Payment Date (other than an Interest Payment Date at
Maturity) would fall on a day that is not a Business Day (as defined below),
such Interest Payment Date shall be postponed to the next succeeding day that
is a Business Day. The "Regular Record Date" shall be the date 15 calendar
days (whether or not a Business Day) prior to the applicable Interest Payment
Date. Interest on this Note shall accrue from and including the Original Issue
Date, at the rates determined from time to time as specified herein, until the
principal hereof has been paid or made available for payment. The interest so
payable and punctually paid or duly provided for on any Interest Payment Date
shall as provided in the Indenture be paid to the Person in whose name this
Note is registered at the close of business on the Regular Record Date for
such Interest Payment Date. Any such interest which is payable, but not
punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest"), shall
forthwith cease to be payable to the registered Holder on such Regular Record
Date, and may be paid to the Person in whose name this Note is registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given
to the Holder of this Note not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner, all as more fully
provided in the Indenture.
The "Interest Rate" borne by this Note shall be LIBOR (as defined below)
plus the applicable Spread (as defined below).
Commencing on the first Interest Reset Date, the rate at which interest
on this Note is payable shall be reset as of each Interest Reset Date. An
"Interest Reset Date" means the fifteenth calendar day of each month,
commencing on September 15, 2005.
Except as provided above, the interest rate in effect on each day shall
be (a) if such day is an Interest Reset Date, the interest rate determined as
of the Interest Determination Date (as defined below) immediately preceding
such Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the immediately preceding Interest Reset Date. LIBOR shall be
determined in accordance with the applicable provision below. If any Interest
Reset Date would otherwise be a day that is not a Business Day, that Interest
Reset Date shall be postponed to the next succeeding day that is a Business
Day.
Interest payable on this Note on any Interest Payment Date shall be the
amount of interest accrued from and including the immediately preceding
Interest Payment Date in respect of which interest has been paid (or from and
including the Original Issue Date specified above, if no interest has been
paid), to but excluding the related Interest Payment Date or Maturity. Accrued
interest hereon shall be an amount calculated by multiplying the face amount
hereof by an accrued interest factor. The accrued interest factor shall be
computed by adding the interest factor calculated for each day in the period
for which accrued interest is being calculated. The interest factor for each
such day shall be computed by dividing the interest rate applicable to each
day by 360.
"Interest Determination Date" means the second London Banking Day (as
defined below) preceding each Interest Reset Date.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards. For example, 9.876545%
or .09876545 would be rounded to 9.87655% or .0987655. All dollar amounts used
in or resulting from any calculation shall be rounded to the nearest cent with
one-half cent being rounded upward.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which commercial banks
are authorized or required by law, regulation or executive order to close in
The City of New York and such day is also a London Banking Day (as hereinafter
defined).
As used herein, "London Banking Day" means a day on which commercial
banks are open for business, including dealings in the LIBOR Currency, in
London.
"LIBOR" as determined by the Calculation Agent (as defined below) means:
(1) The rate for deposits in the LIBOR Currency, as defined below,
having an index maturity of one month commencing on the related
Interest Reset Date, that appears on the LIBOR Page, as defined
below, as of 11:00 A.M., London time, on the particular Interest
Determination Date, or
(2) if no rate appears on the particular Interest Determination Date
on the LIBOR Page as specified above, the rate calculated by the
Calculation Agent as the arithmetic mean of at least two offered
quotations obtained by the Calculation Agent after requesting the
principal London offices of each of four major reference banks,
which may include affiliates of the agent, in the London interbank
market to provide the Calculation Agent with its offered quotation
for deposits in the LIBOR Currency for the period of the index
maturity of one month, commencing on the related Interest
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Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on that Interest
Determination Date and in principal amount that is representative
for single transaction in the LIBOR Currency in that market at
that time, or
(3) if fewer than two offered quotations referred to in clause (2) are
provided as requested, the rate calculated by the Calculation
Agent as the arithmetic mean of the rates quoted at approximately
11:00 A.M., in The City of New York, on the particular Interest
Determination Date by three major banks, which may include
affiliates of the agent, in The City of New York selected by the
Calculation Agent for loans in the LIBOR Currency to leading
European banks, having the index maturity of one month and in
principal amount that is representative for single transaction in
the LIBOR Currency in that market at that time, or
(4) if the banks selected by the Calculation Agent are not quoting as
mentioned in clause (3), LIBOR in effect on the particular
Interest Determination Date.
"LIBOR Currency" means United States dollars.
"LIBOR Page" means the display on Moneyline Telerate Page 3750 or any
successor service on such page or any page as may replace the specified page
on that service for the purpose of displaying the London interbank rates of
major banks for the LIBOR Currency.
The "Spread" applicable to this Note shall equal (i) minus .02%, for
Interest Reset Dates occurring from the Original Issue Date to and including
August 2006, (ii) plus .01%, for Interest Reset Dates occurring from and
including September 2006 to and including August 2007, (iii) plus .03%, for
Interest Reset Dates occurring from and including September 2007 to and
including August 2008, (iv) plus .05%, for Interest Reset Dates occurring from
and including September 2008 to and including August 2009 and (v) plus .05%,
for Interest Reset Dates occurring from and including September 2009 to and
including August 2010.
The Calculation Agent shall calculate the interest rate hereon in
accordance with the foregoing on or before each Calculation Date. The Company
hereby covenants for the benefit of the Holder hereof, to the extent permitted
by applicable law, not to claim voluntarily the benefits of any laws
concerning usurious rates of interest against such Holder.
Merrill Lynch, Pierce, Fenner & Smith Incorporated shall be the
"Calculation Agent". At the request of the Holder hereof, the Calculation
Agent shall provide to the Holder hereof the interest rate hereon then in
effect and, if determined, the interest rate which shall become effective as
of the next Interest Reset Date with respect to this Note.
Payment of the principal of and interest on this Note shall be made at
the Office or Agency of the Company maintained by the Company for such purpose
in the Borough of Manhattan, The City of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts.
Unless the certificate of authentication hereon has been executed by or
on behalf of JPMorgan Chase Bank, N.A., the Trustee with respect to the Notes
under the Indenture, or its successor thereunder, by the manual signature of
one of its authorized officers, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of Securities (hereinafter
called the "Securities") of the Company designated as its Medium-Term Notes,
Series C (the "Notes"). The Securities are issued and to be issued under an
indenture (the "Indenture") dated as of April 1, 1983, between the Company and
JPMorgan Chase Bank, N.A., (herein called the "Trustee", which term includes
any successor Trustee under the Indenture), as amended and restated, to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights thereunder of the Company, the Trustee
and the Holders of the Notes and the terms upon which the Notes are to be
authenticated and delivered.
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The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by
the Holder surrendering the same. If (x) the Depository is at any time
unwilling or unable to continue as depository and a successor depository is
not appointed by the Company within 60 days, (y) the Company executes and
delivers to the Trustee a Company Order to the effect that this Note shall be
exchangeable or (z) an Event of Default has occurred and is continuing with
respect to the Notes, this Note shall be exchangeable for Notes in definitive
form of like tenor and of an equal aggregate principal amount, in authorized
denominations. Such definitive Notes shall be registered in such name or names
as the Depository shall instruct the Trustee. If definitive Notes are so
delivered, the Company may make such changes to the form of this Note as are
necessary or appropriate to allow for the issuance of such definitive Notes.
This Note is not subject to any sinking fund.
If an Event of Default (as defined in the Indenture) with respect to the
Notes shall occur and be continuing, the principal of all the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of 66 2/3% in aggregate original public offering
price or principal amount, as the case may be, of the Securities at any time
Outstanding, as defined in the Indenture, of each series affected thereby.
Holders of specified percentages in aggregate original public offering price
or principal amount, as the case may be, of the Securities of each series at
the time Outstanding, on behalf of the Holders of all the Securities of each
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein and on the face hereof, the transfer of this Note may be
registered on the Security Register of the Company, upon surrender of this
Note for registration of transfer at the office or agency of the Company in
the Borough of Manhattan, The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company duly executed by, the Holder hereof or by his attorney duly authorized
in writing, and thereupon one or more new Notes of authorized denominations
and for the same aggregate principal amount, shall be issued to the designated
transferee or transferees.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture but not
in this Note shall have the meanings assigned to them in the Indenture.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its
corporate seal to be imprinted hereon.
Dated: ____________
MERRILL LYNCH & CO., INC.
By:__________________________________
John Laws
Assistant Treasurer
[FACSIMILE OF SEAL] Attest:
By:__________________________________
Judith A. Witterschein
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
JPMORGAN CHASE BANK, N.A.,
as Trustee
By:____________________________________
Authorized Officer
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ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Taxpayer Identification
No.)________________________________________________ (Please print or
typewrite name and address including postal zip code of
assignee)_______________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________________________ attorney to transfer said
Note on the books of the Company with full power of substitution in the
premises.
Date _______________ _______________________________________________
NOTICE: The signature of the registered
Holder to this assignment must correspond
with the name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or any
change whatsoever.
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