Exhibit 5(d)
[LETTERHEAD OF BROWN & WOOD LLP]
December 27, 2000
Merrill Lynch & Co., Inc.
4 World Financial Center North Tower
New York, New York 10080
Merrill Lynch Preferred Funding VI, L.P. Merrill Lynch Preferred Capital Trust VI
4 World Financial Center 4 World Financial Center
North Tower North Tower
New York, New York 10080 New York, New York 10080
Re: Merrill Lynch Preferred Capital Trust VI
Trust Originated Preferred Securities ("TOPrS")
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Ladies and Gentlemen:
We have acted as tax counsel ("Tax Counsel") to Merrill Lynch & Co., Inc.,
a Delaware corporation (the "Company"), Merrill Lynch Preferred Funding VI,
L.P., a limited partnership formed under the Delaware Revised Uniform Limited
Partnership Act, as amended (the "Partnership"), and Merrill Lynch Preferred
Capital Trust VI, a statutory business trust formed under the Delaware Business
Trust Act, as amended (the "Trust"), in connection with the preparation and
filing by the Company, the Partnership and the Trust with the Securities and
Exchange Commission (the "Commission") of a Registration Statement on Form S-3
(as amended, the "Registration Statement") under the Securities Act of 1933, as
amended, and with respect to: (i) the issuance and sale of subordinated
debentures (the "Company Debentures") by the Company pursuant to a form of
Indenture (the "Company Indenture"), between the Company and The Chase Manhattan
Bank, as trustee (the "Indenture Trustee") in the form filed as an exhibit to
the Registration Statement; (ii) the issuance and sale of one or more debentures
(each of which is guaranteed by the Company pursuant to a form of Affiliate
Debenture Guarantee Agreement in the form filed as an Exhibit to the
Registration Statement between such Investment Affiliate and the Indenture
Trustee, each a "Guaranteed Investment Affiliate Debenture", collectively
"Investment Affiliate Debentures") by one or more eligible controlled affiliates
of the Company (each an "Investment Affiliate") pursuant to forms of Indenture
(each an "Investment Affiliate Indenture"), (the Company Subordinated Debenture
and Investment Affiliate Debentures are collectively referred to hereinafter as
the "Debentures" and the forms of the Company Indenture and the Investment
Affiliate Indentures are collectively referred to hereinafter as the
"Indentures"); (iii) the issuance and sale of Partnership Preferred Securities
by the Partnership to the Trust pursuant to the Amended and Restated Agreement
of Limited Partnership (the "Partnership Agreement") in the form filed as an
exhibit to the Registration Statement; and (iv) the issuance and sale of Trust
Preferred Securities and Trust Common
Securities (collectively, "Trust Securities") pursuant to the Trust's Amended
and Restated Declaration of Trust (the "Declaration") in the form filed as an
exhibit to the Registration Statement. The Trust Preferred Securities will be
offered for sale to investors pursuant to the Prospectus contained in the
Registration Statement.
All capitalized terms used in this opinion letter and not otherwise defined
herein shall have the meanings ascribed to such terms in the Registration
Statement.
In delivering this opinion letter, we have reviewed and relied upon: (i)
the Registration Statement; (ii) forms of the Indentures; (iii) forms of the
Debentures; (iv) the form of the Partnership Agreement; (v) the form of the
Declaration; (vi) the forms of (A) the Partnership Guarantee Agreement, (B) the
Trust Preferred Securities Guarantee Agreement, (C) the Trust Common Securities
Guarantee Agreement and (D) the Affiliate Debenture Guarantee Agreement, each
filed as exhibits to the Registration Statement; and (vii) the forms of (A) the
Partnership Preferred Securities and (B) the Trust Securities, each filed as
exhibits to the Registration Statement. In addition, we have examined, and
relied as to matters of fact upon, certain certificates and comparable documents
of the Company and certain eligible controlled Affiliates of the Company, from
which the Company will select Investment Affiliates. Further, we have relied
upon certain other statements and representations made by officers of the
Company. We also have examined and relied upon original or copies, certified or
otherwise identified to our satisfaction, of such records of the Company, the
Partnership and the Trust and 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 of such material, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all copies of documents submitted to us.
In addition, we also have assumed (i) that the transactions related to the
issuance of the Debentures, Partnership Preferred Securities and Trust
Securities will be consummated in accordance with the terms of the documents and
forms of documents described herein and (ii) on the closing date, an Independent
Financial Advisor will deliver the opinion required under Section 7.1(b) of the
Partnership Agreement.
On the basis of the foregoing and assuming that the Partnership and the
Trust were formed and will be maintained in compliance with the terms of the
Partnership Agreement and the Declaration, respectively, we hereby confirm (i)
our opinions set forth in the Prospectus contained in the Registration Statement
under the caption "Certain Federal Income Tax Considerations" and (ii) that,
subject to the qualifications set forth therein, the discussion set forth in the
Registration Statement under such caption is an accurate summary of the United
States federal income tax matters described therein.
We express no opinion with respect to the transactions referred to herein
or in the Registration Statement other than as expressly set forth herein.
Moreover, we note that there is no authority directly on point dealing with
securities such as the Trust Preferred Securities or transactions of the type
described herein and that our opinions are not binding on the Internal Revenue
Service ("IRS") or the courts, either of which could take a contrary position.
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Nevertheless, we believe that if challenged, the opinions we express herein
would be sustained by a court with jurisdiction in a properly presented case.
Our opinions are based upon the Code, the Treasury regulations promulgated
thereunder and other relevant authorities and law, all as in effect on the date
hereof. Consequently, future changes in the law may cause the tax treatment of
the transactions referred to herein to be materially different from that
described above.
The opinions we express herein are limited solely to matters governed by
the federal law of the United States.
We hereby consent to the use of this opinion for filing as Exhibit 5(d) to
the Registration Statement and the use of our name in the Registration Statement
under the captions "United States Federal Income Taxation" and "Legal Matters".
Very truly yours,
/s/ Brown & Wood LLP
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