Exhibit 5(d)
August 9, 2002
Merrill Lynch & Co., Inc.
4 World Financial Center
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
New York, New York 10080 New York, New York 10080
Re: Merrill Lynch Preferred Capital Trust VI
Trust Originated Preferred Securities ("TOPrS")
-----------------------------------------------
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 JPMorgan Chase Bank
(formerly known as 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 Limited Partnership Agreement (the "Partnership Agreement")
in the form filed as an exhibit to the Registration Statement; and (iv) the
issuance and sale of TOPrS 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 TOPrS 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 Preferred Securities
Guarantee Agreement, (B) the Trust Preferred Securities Guarantee Agreement, and
(C) the Affiliate Debenture Guarantee Agreement, 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 originals 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 "United States Federal Income Taxation" 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 TOPrS 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. Nevertheless, we
believe that if challenged, the opinions we express herein would be sustained by
a court with jurisdiction in a properly presented case.
2
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/ Sidley Austin Brown & Wood LLP
3