EXHIBIT 5.3
January 5, 1998
Merrill Lynch Preferred Capital Trust III
Merrill Lynch Preferred Funding III, 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.;
MERRILL LYNCH PREFERRED FUNDING
III, L.P.; MERRILL LYNCH
PREFERRED CAPITAL TRUST III;
REGISTRATION STATEMENT ON FORM S-3
(REGISTRATION NO. 333-42859)
Ladies and Gentlemen:
We have acted as special Delaware counsel to Merrill Lynch Preferred
Capital Trust III, a statutory business trust created under the Business Trust
Act of the State of Delaware (Del. Code Ann., tit. 12, Sections 3801 et seq.)
(the "Trust"), and Merrill Lynch Preferred Funding III, L.P., a limited
partnership formed under the Revised Uniform Limited Partnership Act of the
State of Delaware (6 Del. C. Section 17-101, et seq.)(the "Partnership"), 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, among
other securities, Trust Preferred Securities (the "Trust Preferred Securities")
of the Trust and Partnership Preferred Securities (the "Partnership Preferred
Securities") of the Partnership.
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"),
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and Theresa Lang and Stanley Schaefer, as regular trustees (the "Regular
Trustees"). The Partnership Preferred Securities will be issued pursuant to the
Amended 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 (Registration No. 333-42859) filed by the Company, the
Partnership and the Trust with the Securities and Exchange Commission (the
"Commission") on December 19, 1997 under the Act and Amendment No. 1 thereto
filed with the Commission on January 5, 1998 (such Registration Statement, as so
amended, being hereinafter referred to as the "Registration Statement"); (ii)
the Certificate of Trust of the Trust filed with the Secretary of State of the
State of Delaware on December 19, 1997; (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 Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, A.G. Edwards & Sons, Inc., PaineWebber Incorporated, Prudential
Securities Incorporated and Salomon Brothers Inc, as representatives (the
"Representatives") for the Underwriters named in Schedule A thereto
(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
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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 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 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 Declaration, the 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.
Based on and subject to the foregoing and to the other qualifications
and limitations set forth
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herein, we are of the following opinions when (i) the Registration Statement
becomes effective; (ii) the Declaration, the Purchase Agreement and the Limited
Partnership Agreement have been duly executed and delivered by the parties
thereto; (iii) the terms of the Trust Preferred Securities have been duly
established in accordance with the Declaration and the 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 have been duly established in accordance with the Limited Partnership
Agreement and the Partnership Preferred Securities have been duly executed in
accordance with the terms of the Limited Partnership Agreement and delivered to
and paid for by the Trust as contemplated by the Purchase Agreement:
1. The Trust Preferred Securities 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 such 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 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 Preferred Securities and (ii) provide security and indemnity in connection
with the requests of or directions to the Property Trustee to exercise its
rights and powers under the Declaration.
2. The Partnership Preferred Securities will have been authorized
for issuance and will represent valid partnership interests in the Partnership,
and the holders of 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
Partnership Preferred Securities may be obligated, pursuant to the Limited
Partnership Agreement, to (i) provide indemnity
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January 5, 1998
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and/or security in connection with and pay taxes or governmental charges arising
from transfers of 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