Merrill Lynch Parties means Merrill Lynch Global Allocation Fund, Inc., Merrill Lynch Equity/Convertible Series Global Allocation Portfolio, Merrill Lynch Variable Series Funds, Inc. (Merrill Lynch Global Allocation Focus Fund) and the Merrill Lynch Series Fund, Inc. (Global Allocation Strategy Portfolio).
The respective relative benefits received by the Company on the one hand and the Merrill Lynch Parties on the other shall be deemed to be in the same proportion as the amount paid by the Merrill Lynch Parties to the Company pursuant to this Agreement and the Swap Agreement and the net proceeds retained by the Merrill Lynch Parties from the transactions contemplated by this Agreement and the Swap Agreement.
At or prior to the Closing, counsel to the Company will deliver its legal opinion dated the Closing Date to the Merrill Lynch Parties in substantially the form of Exhibit A hereto.
The Company and the Merrill Lynch Parties agree that it would not be just and equitable if contribution pursuant to this Section 7.5 were determined solely by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this paragraph.
The Merrill Lynch Parties also shall deliver a copy of the Resale Prospectus to all purchasers from them of Common Shares in accordance with the requirements of applicable law.
If, pursuant to the terms of the Swap Agreement, either of the Merrill Lynch Parties desires to sell any Shares prior to the -18- 19 effectiveness of the Initial Resale Registration Statement, the Company acknowledges that the Merrill Lynch Parties may elect to use for effecting such resales the Company's existing registration statement on Form S-3 (File No. 333-38071) (the "Existing Shelf Registration Statement").