Exhibit 5(c)
July 28, 1998
Merrill Lynch Preferred Capital Trust V
Merrill Lynch Preferred Funding V, L.P.
Merrill Lynch & Co., Inc.
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Re: Merrill Lynch & Co., Inc.
Registration Statement on Form S-3
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Ladies and Gentlemen:
We have acted as special Delaware counsel to Merrill Lynch Preferred
Capital Trust V (the "Trust"), a statutory business trust created under the
Business Trust Act of the State of Delaware (Del. Code Ann., tit. 12, (S)(S)
3801 et seq.), and Merrill Lynch Preferred Funding V, L.P. (the "Partnership"),
a limited partnership formed under the Revised Uniform Limited Partnership Act
of the State of Delaware (6 Del. C. (S) 17-101, et seq.), in connection with
the preparation of the Registration Statement on Form S-3 filed by Merrill
Lynch & Co., Inc. (the "Company"), a corporation organized under the laws of the
State of Delaware, the Trust and the Partnership for the registration under the
Securities Act of 1933, as amended (the "Act"), of Trust Preferred Securities
(the "Trust Preferred Securities") of the Trust, Partnership Preferred
Securities (the "Partnership Preferred Securities") of the Partnership,
guarantees of the Company relating thereto and certain other securities.
The Trust Preferred Securities are to be issued pursuant to an Amended
and Restated Declaration of Trust of the Trust (the "Declaration"), among the
Company, as sponsor of the Trust, Chase Manhattan Bank Delaware, as Delaware
trustee (the "Delaware Trustee"), The Chase Manhattan Bank, as property trustee
(the "Property Trustee"), and Theresa Lang and Stanley Schaefer, as regular
trustees (the "Regular Trustees"). The Partnership Preferred Securities will
be issued pursuant to an Amended
Merrill Lynch Capital Trust V
Merrill Lynch & Co., Inc.
July 28,1998
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and Restated Agreement of Limited Partnership of the Partnership (the "Limited
Partnership Agreement") between the Company, as the general partner (in such
capacity, the "General Partner"), and Merrill Lynch Group, Inc., a Delaware
corporation, as the initial limited partner.
This opinion is being delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Act. Capitalized terms used but not
otherwise defined herein have the meanings ascribed to them in the Registration
Statement.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement on Form S-3 filed by the Company, the Partnership and
the Trust with the Securities and Exchange Commission (the "Commission") on July
28, 1998 under the Act (the "Registration Statement"); (ii) the Certificate of
Trust of the Trust filed with the Secretary of State of the State of Delaware on
January 8, 1998; (iii) the form of the Declaration (including the designation of
the terms of the Trust Preferred Securities annexed thereto); (iv) the form of
the Trust Preferred Securities and specimen certificates thereof; (v) the form
of the Purchase Agreement (the "Purchase Agreement") proposed to be entered
into among the Company, the Partnership, the Trust and the Underwriters to be
named therein (collectively, the "Underwriters") relating to, among other
things, the sale of the Trust Preferred Securities; (vi) the Certificate of
Limited Partnership of the Partnership filed with the Secretary of State of the
State of Delaware on December 19, 1997; (vii) the form of the Limited
Partnership Agreement (including the designation of the terms of the Partnership
Preferred Securities annexed thereto); and (viii) the form of the Partnership
Preferred Securities and specimen certificates thereof. We have also examined
originals or copies, certified or otherwise identified to our satisfaction, of
such other documents, certificates
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Merrill Lynch & Co., Inc.
July 28,1998
Page 3
and records as we have deemed necessary or appropriate as a basis for the
opinions set forth herein.
In our 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 original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. In making our examination of
documents executed, or to be executed, by parties other than the Partnership
and the Trust, we have assumed that such parties had, or will have, the power,
corporate or other, to enter into and perform all obligations thereunder and
have also assumed that such documents have been or will be duly authorized by
all requisite action, corporate or other, and executed and delivered by such
parties and that such documents constitute or will constitute valid and binding
obligations of such parties. In addition, we have assumed that the Declaration,
the Trust Preferred Securities, the Limited Partnership Agreement and the
Partnership Preferred Securities when executed will be in substantially the
forms reviewed by us. With respect to the opinion set forth in paragraph (2)
below, we have assumed that, except for the exercise of rights and powers
expressly permitted by the Limited Partnership Agreement, the holders of
Partnership Preferred Securities will not participate in the control of the
business of the Partnership. As to any facts material to the opinions expressed
herein which 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 Partnership, the Trust and others.
We do not express any opinion as to the laws of any jurisdiction other
than the laws of the State of Delaware.
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July 28,1998
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Based on and subject to the foregoing and to the other qualifications
and limitations set forth herein, we are of the following opinions when (i)
the Registration Statement becomes effective; (ii) the Declaration, the
Limited Partnership Agreement and the Purchase Agreement with respect to the
Trust Preferred Securities and Partnership Preferred Securities have been duly
executed and delivered by the parties thereto; (iii) the terms of the Trust
Preferred Securities being issued have been duly established in accordance with
the Declaration and such Trust Preferred Securities have been duly executed
and authenticated in accordance with the Declaration and delivered to and paid
for by the Underwriters as contemplated by the Purchase Agreement; and (iv) the
terms of the Partnership Preferred Securities being issued have been duly
established in accordance with the Limited Partnership Agreement and the
Partnership Preferred Securities have been duly executed in accordance with
the Limited Partnership Agreement and delivered to and paid for by the Trust as
contemplated by the Purchase Agreement:
1. The Trust Preferred Securities being issued will have been duly
authorized for issuance and will be validly issued, fully paid and
nonassessable, representing undivided beneficial ownership interests in the
assets of the Trust; and the holders of the Trust Preferred Securities will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware. We bring to your attention, however, that the holders
of the Trust Preferred Securities may be obligated, pursuant to the Declaration,
to (i) provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers of the Trust Preferred Securities
and (ii) provide security and indemnity in connection with the requests of or
directions to the Property Trust-
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July 28,1998
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ee to exercise its rights and powers under the Declaration.
2. The Partnership Preferred Securities being issued will have been
authorized for issuance and will represent valid partnership interests in the
Partnership, and the holders of the Partnership Preferred Securities, as limited
partners of the Partnership, will not be liable to third parties for the
obligations of the Partnership. We bring to your attention, however, that the
holders of the Partnership Preferred Securities may be obligated, pursuant to
the Limited Partnership Agreement, to (i) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising from transfers of
the Partnership Preferred Securities and the issuance of replacement Partnership
Preferred Securities, and (ii) provide security and indemnity in connection with
requests of or directions to the Special Representative (as defined in the
Limited Partnership Agreement) to exercise its rights and powers under the
Limited Partnership Agreement.
We hereby consent to the use of our name under the heading "Legal
Matters" in the prospectus which forms a part of the Registration Statement. We
also hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. In giving this consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission promulgated thereunder. This opinion is expressed as of the date
hereof unless otherwise expressly stated and we disclaim any undertaking to
advise you of any subsequent changes in the facts stated or assumed herein or of
any subsequent changes in applicable law.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
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