AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 8, 1997
SECURITIES ACT FILE NO. 333-______
INVESTMENT COMPANY ACT FILE NO. 811-7887
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM N-2
/x/ Registration Statement Under The Securities Act of 1933
/ / Pre-Effective Amendment No.
/ / Post-Effective Amendment No.
and/or
/x/ Registration Statement Under The Investment Company Act of 1940
/x/ Amendment No. 3
(check appropriate box or boxes)
______________________
MERRILL LYNCH KECALP L.P. 1997
(Exact Name of Registrant as Specified in Charter)
______________________
WORLD FINANCIAL CENTER - SOUTH TOWER
225 LIBERTY STREET
NEW YORK, NEW YORK 10080-6123
(Address of Principal Executive Offices)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (212) 236-7302
KECALP INC
WORLD FINANCIAL CENTER - NORTH TOWER
250 VESEY STREET
NEW YORK, NEW YORK 10281-1334
ATTN: MARK B. GOLDFUS
(Name and Address of Agent for Service)
______________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. _____
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. _____
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. /x/ No. 333-15035
-------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / __________________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933
<TABLE>
<CAPTION>
Title of Securities Proposed Maximum Proposed Maximum
Being Amount being Offering Price Aggregate Amount of
Registered Registered Per Unit Offering Price Registration Fee
-------------------- ------------ ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Limited Partnership 50,000 $1,000 $50,000,000 $15,152
Interest
</TABLE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The information in the Registration Statement filed by Merrill Lynch
KECALP L.P. 1997 with the Securities and Exchange Commission (File No. 333-
15035) pursuant to the Securities Act of 1933, as amended, is incorporated by
reference into this Registration Statement.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933 AND THE
INVESTMENT COMPANY ACT OF 1940, THE REGISTRANT HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW YORK AND STATE OF NEW YORK ON
THE 8TH DAY OF AUGUST, 1997.
Merrill Lynch KECALP L.P. 1997
By KECALP Inc., its General Partner
By /s/ Robert F. Tully
------------------------------------------
Robert F. Tully
Vice President
EACH PERSON WHOSE SIGNATURE APPEARS BELOW HEREBY AUTHORIZES ROBERT F.
TULLY AND JAMES V. CARUSO, OR EITHER OF THEM, AS ATTORNEY-IN-FACT, TO SIGN ON
HIS BEHALF, INDIVIDUALLY AND IN EACH CAPACITY STATED BELOW, ANY AMENDMENTS TO
THIS REGISTRATION STATEMENT (INCLUDING POST-EFFECTIVE AMENDMENTS) AND TO FILE
THE SAME, WITH ALL EXHIBITS THERETO, WITH THE SECURITIES AND EXCHANGE
COMMISSION.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AND ON THE 8TH DAY OF AUGUST, 1997.
<TABLE>
<CAPTION>
<S> <C>
Signature Title
--------- -----
/s/ John L. Steffens
- -------------------------------- President and Director (Chief Executive Officer)
(John L. Steffens) KECALP Inc.
/s/ Matthias B. Bowman
- -------------------------------- President, Chief Investment Officer and Director
(Matthias B. Bowman) KECALP Inc.
/s/ Robert F. Tully
- -------------------------------- Vice President and Treasurer (Chief Financial and
(Robert F. Tully) Accounting Officer)
KECALP Inc.
- -------------------------------- Vice President and Director
(James V. Caruso) KECALP Inc.
/s/ Mark B. Goldfus
- -------------------------------- Vice President and Director
(Mark B. Goldfus) KECALP Inc.
/s/ Andrew J. Melnick
- -------------------------------- Vice President and Director
(Andrew J. Melnick) KECALP Inc.
/s/ Daniel P. Tully
- -------------------------------- Vice President and Director
(Daniel P. Tully) KECALP Inc.
/s/ Patrick J. Walsh
- -------------------------------- Vice President and Director
(Patrick J. Walsh) KECALP Inc.
</TABLE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
(1) Opinion and Consent of Brown & Wood LLP
(n)(i) Consent of Independent Accountants
(n)(ii) Form of Opinion of Brown & Wood LLP as to certain tax matters.
</TABLE>
Brown & Wood LLP
One World Trade Center
New York, NY 10048-0557
Telephone: (212) 839-5300
Facsimile: (212) 839-5599
August 8, 1997
Merrill Lynch KECALP L.P. 1997
c/o KECALP Inc.
North Tower
World Financial Center
250 Vesey Street
New York, NY 10281-1327
Re: Sales of 50,000 Units of
Limited Partnership Interest
------------------------------
Dear Sirs:
We have acted as your counsel in connection with the above-referenced
limited partnership interests (the "Units") to be offered and sold by Merrill
Lynch, Pierce, Fenner & Smith Incorporated. The Units are being registered
pursuant to Rule 462(b) (the "462(b) Filing") under the Securities Act of
1933, as amended, and is the subject of a registration statement on Form N-2
(File No. 333-15035) (the "Registration Statement") which is incorporated by
reference into the 462(b) Filing.
In rendering this opinion, we have examined such documents and records
as we deemed appropriate. Capitalized terms used herein and not otherwise
defined are defined in the form of Amended and Restated Agreement of Limited
Partnership included as Exhibit A in the Registration Statement (the
"Agreement").
We have assumed the genuineness and authenticity of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies thereof, and the due authorization, execution, delivery and
recordation of all documents where due authorization, execution, delivery and
recordation are a prerequisite to the effectiveness thereof.
On the basis of the foregoing and in reliance thereon, we are of the
opinion that when offered and sold as described in the Registration
Statement, and assuming (i) that the General Partner has taken all corporate
action required to be taken by it to authorize the
issuance and sale of Units to the Limited Partners and to authorize the
admission to the Partnership of the Limited Partners, (ii) the due
authorization, execution and delivery of a subscription agreement, the form
of which is set forth as Exhibit B in the Prospectus (the "Subscription
Agreement"), by each subscriber for Units (the "Subscribers"), (iii) the due
acceptance by the General Partner of each Subscription Agreement and the due
acceptance by the General Partner of the admission of the Subscribers to the
Partnership as Limited Partners, (iv) the payment by each Subscriber of the
full consideration due from it for the number of Units subscribed to by it,
(v) the due authorization, execution and delivery by all parties thereto of
the Agreement, (vi) that the books and records of the Partnership set forth
all information required by the Agreement and the Delaware Revised Uniform
Limited Partnership Act (6 Del.C. Section 17-101 et seq.) (the "Act"),
------ ------
including all information with respect to all Persons to be admitted as
Partners and their Capital Contributions, (vii) that the Subscribers, as
Limited Partners, do not participate in the control of the business of the
Partnership and (viii) that the Units are offered and sold as described in
the Registration Statement and the Agreement, (a) the Units will represent
valid limited partner interests in the Partnership, and subject to the
qualifications set forth herein, as to which the Subscribers, as limited
partners of the Partnership, will have no liability with respect to the
Partnership's affairs in excess of their respective obligations to make
contributions to the Partnership, their respective obligations to make other
payments provided for in the Agreement and their share of the Partnership's
assets and undistributed profits (subject to the obligation of a Limited
Partner to repay any funds wrongfully distributed to it), and (b) the
Subscribers will be Limited Partners of the Partnership entitled to all of
the benefits of Limited Partners to the extent permitted under the Act.
We consent to the filing of this opinion as Exhibit (1) to the 462
Filing and to the filing of the form of our opinion as to tax matters as
Exhibit (n)(ii) to the 462 Filing. We also consent to the references to our
firm in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ Brown & Wood LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Registration Statement of our report dated May
14, 1997 relating to the balance sheet of Merrill Lynch KECALP L.P. 1997 as
of May 12, 1997 appearing in the Prospectus, which is incorporated by
reference in this Registration Statement, and to the reference to us under
the heading "Experts" in such Prospectus.
/s/ Deloitte & Touche LLP
New York, New York
August 6, 1997
(SET FORTH BELOW IS A DRAFT OF THE FORM OF OPINION WHICH BROWN & WOOD
LLP ("TAX COUNSEL") EXPECTS TO DELIVER AT THE CLOSING OF THE SALE OF UNITS
AND TO REAFFIRM AT ANY SUBSEQUENT CLOSING IF THE FACTS AND CIRCUMSTANCES OF
THE FORMATION, ORGANIZATION AND CAPITALIZATION OF THE PARTNERSHIP ARE AS
CONTEMPLATED IN THE PROSPECTUS AND THE PARTNERSHIP AGREEMENT. THE ACTUAL
SUBSTANCE OF THE OPINION OF TAX COUNSEL IS SUBJECT TO THE LAW IN EFFECT AT
THE TIME OF SUCH CLOSING AND SUCH ADDITIONAL FACTS AS MAY BE DISCLOSED UPON
INQUIRY BY TAX COUNSEL.)
________________ ___, 1997
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281-1201
Re: Merrill Lynch KECALP L.P. 1997
------------------------------
Ladies and Gentlemen:
Our opinion has been requested as to certain tax matters, set forth
below, in connection with the transactions contemplated in the prospectus,
dated ______________ ___, 1997 (such prospectus, as supplemented by a
prospectus supplement thereto, as filed with the Securities and Exchange
Commission (the "Commission") for filing pursuant to Rule 497(d) under the
Securities Act of 1933, is hereinafter referred to as the "Prospectus")
relating to Merrill Lynch KECALP L.P. 1997, a Delaware limited partnership
(the "Partnership"), the general partner of which is KECALP Inc., a Delaware
corporation (the "General Partner"). All capitalized terms used and not
otherwise defined herein are intended to have the respective meanings set
forth in the Prospectus.
IDENTIFICATION OF DOCUMENTS REVIEWED AND ASSUMPTIONS MADE
In rendering our opinions, we have examined and relied upon, and have
assumed the truth and accuracy of, the following:
I. The Certificates of Limited Partnership of the Partnership, dated
as of October 28, 1996, as filed with the Secretary of State of the State of
Delaware on October 28, 1996, in accordance with the provisions of the
Delaware Revised Uniform Limited Partnership Act (the "Act");
II. The Amended and Restated Agreement of Limited Partnership of the
Partnership, dated _____________ ___, 1997, duly executed by the General
Partner, the Initial Limited Partner and each Additional Limited Partner in
accordance with the provisions of the Act (the "Partnership Agreement");
III. The Prospectus;
IV. The letters, dated the date hereof, containing certain covenants
and factual representations of the Partnership and the General Partner
attached hereto as Exhibit A-1, and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as selling agent for the Partnership, attached hereto as
Exhibit A-2;
V. The form of Subscription Agreement and the Subscription
Qualification and Acceptance Page (including power of attorney) for Units
attached to the prospectus as Exhibit B; and
VI. Such other documents and proceedings as we have deemed necessary in
order to enable us to render this opinion.
OPINIONS RENDERED AND LIMITATIONS ON OPINIONS RENDERED
Our opinions set forth below are also based upon the existing provisions
of the Internal Revenue Code of 1986, as amended (the "Code"), the Treasury
Regulations (including Temporary and Proposed Treasury Regulations)
promulgated under the Code, published Revenue Rulings, Revenue Procedures and
other announcements of the Internal Revenue Service (the "Service") and
existing court decisions, any of which could be changed at any time. Any
such changes may be retroactive with respect to transactions entered into
prior to the date of such changes and could significantly modify the opinions
set forth below.
Based on the foregoing documents, materials, assumptions and
information, and subject to the qualifications and assumptions set forth
below, we are of the opinion that:
1. The Partnership will be classified as a partnership for Federal
income tax purposes and not as an association taxable as a corporation and
will not be classified as a publicly traded partnership within the meaning of
Code Section 7704(b).
2. The allocations of income, gain, loss, deduction, and credit of the
Partnership will be respected for Federal income tax purposes, so long as no
Limited Partner's capital account becomes negative.
3. The tax discussion in the Prospectus under the captions "Tax
Aspects of Investment in the Partnership" and "Risk and Other Important
Factors" fully and fairly sets forth the Federal income tax consequences and
tax risks associated with investment in the Partnership.
The Federal income tax consequences ultimately to be derived by any
Limited Partner will, in addition, depend upon the individual situation of
each Limited Partner, as well as the actual operations of the Partnership.
Further, as noted above, the realization of the anticipated Federal tax
treatment may be materially and adversely affected by future legislation and
administrative and judicial decisions.
Accordingly, it is recommended that each potential Limited Partner
consult with his, her or its own tax advisor as to the tax aspects of a
purchase of a Unit in the Partnership, including Federal taxes and any state
and local, or foreign tax considerations (which are not discussed in this
opinion), as they relate to his, her or its particular tax situation.
In reviewing the opinions set forth above, you should be aware that (i)
our firm has represented the General Partner in this transaction and has
represented, and regularly represents, various affiliates of Merrill Lynch &
Co., Inc., and (ii) the opinions set forth above represent our conclusions as
to the application of existing law to the instant transaction. You should
also be aware that an opinion of counsel represents only counsel's best legal
judgment, and has no binding effect or official status of any kind, and no
assurance can be given that contrary positions may not be taken by the
Service or that a court considering the issues would not hold otherwise.
The opinions expressed herein are limited as described above, and we do
not express an opinion with respect to any other federal or state law or the
law of any other jurisdiction, except as expressly stated herein. This
opinion is rendered as of the date hereof and we undertake no obligation to
update this opinion or advise you of any changes in the event there is any
change in legal authorities, facts, assumptions or documents on which this
opinion is based (including the taking of any action by any party to the
transaction documents pursuant to any opinion of counsel or a waiver), or any
inaccuracy in any of the representations, warranties or assumptions upon
which we have relied in rendering this opinion unless we are specifically
engaged to do so.
You should be aware that there is no assurance that the Service would
not challenge the conclusions set forth above. Our opinion also assumes that
a court considering the question would have all facts and legal issues
properly presented to it.
This opinion is rendered only to those parties to whom it is addressed
and is solely for their benefit. This opinion may not be relied upon by any
other person for any purpose without our prior written consent.
Very truly yours,
EXHIBIT A-1
_________________ ___, 1997
Brown & Wood LLP
One World Trade Center
New York, New York 10048
Re: Merrill Lynch KECALP L.P. 1997
------------------------------
Ladies and Gentlemen:
In order for you to render certain legal opinions regarding various
Federal income tax consequences to Merrill Lynch KECALP L.P. 1997 (the
"Partnership"), and its partners, as described in more detail in the
Registration Statement filed with the Securities and Exchange Commission on
______________ ___, 1997 and thereafter amended (the "Registration
Statement") and the Prospectus included therein (the "Prospectus"), the
Partnership and KECALP Inc., the general partner of the Partnership (the
"General Partner"), hereby certify the accuracy of the facts contained
herein, and make the representations and agreements provided herein. We
understand that, in rendering your opinion, you will rely in part on such
representations made by us and the applicability of your opinion will be
conditioned on compliance with the representations contained herein.
Capitalized terms used and not otherwise defined in this letter shall have
the same meanings as they have in the Registration Statement.
As a basis for your opinion, we hereby represent that:
1. The Partnership has been duly and validly organized as a limited
partnership pursuant of the terms of the Partnership Agreement and the
Delaware Revised Uniform Limited Partnership Act (the "Act");
2. With regard to the Registration Statement, to the best of our
knowledge (i) the information contained in the Registration Statement is
accurate and complete; and (ii) the Registration Statement contains no
omissions of material facts;
3. The Partnership Agreement and all other pertinent agreements
relating to the offering and sale of Units have been duly executed, delivered
and filed;
4. The purchase of Units in the Partnership by a Limited Partner will
not entail either a mandatory or discretionary purchase or option to purchase
any type of security or equity interest in either the General Partner,
Merrill Lynch & Co., Inc. or any of its affiliates;
5. The Partnership will be operated in accordance with the Act, the
Partnership Agreement, and the statements and representations made in the
Prospectus;
6. No creditor who makes a nonrecourse loan to the Partnership will
have or acquire, at any time as a result of making the loan, any direct or
indirect interest in the profits, capital, or property of the Partnership,
other than as a secured creditor or other than as a result of the exercise of
the rights thereof;
7. The General Partner will exercise its best efforts to enforce
Section 7.1A of the Partnership Agreement which provides, among other things,
that the Partnership will not recognize for any purpose any sale, assignment
or transfer of all or any part of a Limited Partner's Units if such sale,
assignment or transfer would cause the Partnership to be classified as either
an association taxable as a corporation for Federal income tax purposes or a
publicly traded partnership within the meaning of Code Section 7704(b);
8. The General Partner will not register Units for trading on any
established securities market or any secondary market as those terms are used
in Section 7704(b) of the Code. Moreover, the General Partner will not make
a market in Units at any time during the existence of the Partnership.
Furthermore, the General Partner will endeavor at all times to prevent any
trading of Units that might be characterized as the substantial equivalent of
trading in a secondary market in any future administrative or judicial
interpretations of Code Section 7704(b);
9. In approving procedures for the transfer of Units through a
matching agent, the General Partner will, unless otherwise advised by counsel
to the Partnership, require the following:
(a) No transfers of Units will be recognized unless the selling Limited
Partner gives formal notice to the matching agent at least 30 days
prior to the earliest next date on which transfers of such Units
are recognized;
(b) Offers to sell by a Partner to be listed in a matching service will
be revocable by such Partner and not binding on any transferee at
any time prior to the quarterly transfer date on which the
Partnership recognizes a transfer of such selling Partner's Units;
(c) No transfers of Units will be effected and no consideration for
sale of a Unit will be transferred or paid to either a selling
Partner, the matching agent or escrow holder at any time other than
on or after the quarterly transfer date on which the selling
Partner is otherwise eligible to transfer part or all of his
interest in the Partnership; and
(d) The matching agent will not quote prices for the sale of Units or
provide information concerning prospective buyers and sellers of
Units to the public in general.
10. The General Partner presently intends to use a matching service
provided by Merrill Lynch, Pierce, Fenner & Smith Incorporated and not to
recognize transfers of Units proposed to be effected through any other
matching agent. The quarterly transfer dates to be followed in the Merrill
Lynch matching service system are no earlier than the first day of each
calendar quarter immediately following the calendar quarter in which a
selling Partner complies with the provisions governing transfers of Units;
and
11. The Partnership will not elect under Section 761(a) of the Code to
be excluded from the application of all or part of subchapter K of the Code,
and will not elect pursuant to Treasury Regulation Section301.7701-3(c) to be
classified for Federal income tax purpose as an association taxable as a
corporation.
Very truly yours,
Merrill Lynch KECALP L.P. 1997
By KECALP Inc., General Partner
By: ____________________________
KECALP Inc.
By: ____________________________
EXHIBIT A-2
_________________ ___, 1997
Brown & Wood LLP
One World Trade Center
New York, New York 10048
Re: Merrill Lynch KECALP L.P. 1997
------------------------------
Ladies and Gentlemen:
The purpose of this letter is to provide you with certain
representations for your use and reliance in preparing your opinion
concerning certain Federal income tax consequences under the Internal Revenue
Code of 1986, as amended, relating to the organization and operation of
Merrill Lynch KECALP L.P. 1997 (the "Partnership") and in preparing the
discussion entitled "Tax Aspects of Investment in the Partnership" appearing
in the Registration Statement and the Prospectus included therein, including
any Prospectus Supplement (the "Prospectus"), concerning the offering for
sale of limited partnership interests in the Partnership (the "Units"). We
understand that, in rendering your opinion, you will rely in part on such
representations made by us and the applicability of your opinion will be
conditioned on our compliance with the representations contained herein.
Capitalized terms used and not otherwise defined in this letter shall have
the meanings as they have in the Prospectus.
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"),
the selling agent for the offering of Units of the Partnership, hereby
represents that in connection with any matching services provided by Merrill
Lynch or any of its affiliates (hereinafter, the term "Merrill Lynch" shall
include any affiliates thereof) for buyers and sellers of Units:
1. Offers to sell or buy Units of the Partnership made through Merrill
Lynch will be revocable by the offeror and not binding on any transferor or
transferee at all times prior to the quarterly transfer date on which the
Partnership recognizes a transfer of such Units.
2. Offers to sell Units will not be matched during a calendar quarter
unless such offers have been received by Merrill Lynch at least 30 days prior
to the quarterly transfer date on which the Partnership recognizes a transfer
of such Units.
3. Employees of Merrill Lynch will not be permitted to solicit sellers
of Units and, if Merrill Lynch becomes aware that an offer to sell Units has
been solicited, it will not match the offer for transfer.
4. No consideration for sale of a Unit will be transferred or paid to
either a selling Partner, Merrill Lynch or escrow holder at any time other
than on or after the quarterly transfer date on which the selling Partner is
otherwise eligible to transfer part or all of his Units.
5. Merrill Lynch will not quote prices for the sale of Units or
provide information concerning prospective buyers or sellers of Units to the
general public.
6. Merrill Lynch has no present intention to purchase Units after the
completion of the offering and will not purchase Units except for occasional
accommodation trades, the terms of which will be subject to the conditions
described in paragraphs 1 through 5 of this letter.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: __________________________________
Title:
