Exhibit 5(d)
[Letterhead of Brown & Wood LLP]
July 28, 1998
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
New York, New York 10281
Merrill Lynch Preferred Funding V, L.P. Merrill Lynch Preferred Capital Trust V
World Financial Center World Financial Center
North Tower North Tower
New York, New York 10281 New York, New York 10281
Re: Merrill Lynch Preferred Capital Trust V
Trust 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 V,
L.P., a limited partnership formed under the Delaware Revised Uniform Limited
Partnership Act, as amended (the "Partnership"), and Merrill Lynch Preferred
Capital Trust V, 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
(Registration No. 333-______) (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 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 meaning 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 Company and certain eligible controlled affiliates of 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 Partnership and 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 "Certain Federal Income Tax Considerations" and
"Legal Matters".
Very truly yours,
/s/ Brown & Wood LLP
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