April 14, 2004
To the Persons Named on
Schedule 1 Hereto
Re: Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2004-2
Ladies and Gentlemen:
We are rendering this opinion letter pursuant to Section 5 of
that certain Certificate Purchase Agreement dated as of April 1, 2004
("Certificate Purchase Agreement"), by and among Banc of America Commercial
Mortgage Inc. ("BACM"), Banc of America Securities LLC ("BAS") and Bear, Xxxxxxx
& Co. Inc. ("Bear" and together with BAS, the "Initial Purchasers"), and
pursuant to Section 6 of that certain Underwriting Agreement dated April 1, 2004
(the "Underwriting Agreement"), by and among BACM; BAS; Xxxx; Xxxxxxx, Xxxxx &
Co. ("Xxxxxxx Xxxxx") and Wachovia Capital Markets, LLC ("Wachovia" and,
together with BAS, Xxxx and Xxxxxxx Xxxxx, the "Underwriters"). We have acted as
special counsel to BACM and the Initial Purchasers in connection with (i) the
issuance of BACM's Commercial Mortgage Pass-Through Certificates, Series 2004-2
(the "Certificates"), consisting of twenty-three classes: the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class
A-4 Certificates, the Class A-5 Certificates, the Class XC Certificates, the
Class XP Certificates, the Class B Certificates, the Class C Certificates, the
Class D Certificates, the Class E Certificates, the Class F Certificates, the
Class G Certificates, the Class H Certificates, the Class J Certificates, the
Class K Certificates, the Class L Certificates, the Class M Certificates, the
Class N Certificates, the Class O Certificates, the Class P Certificates, the
Class R-I Certificates and the Class R-II Certificates; (ii) the sale by BACM to
the Underwriters of the Class A-1 Certificates, the Class A-2 Certificates, the
Class A-3 Certificates, the Class A-4 Certificates, the Class A-5 Certificates,
the Class XP Certificates, the Class B Certificates, the Class C Certificates,
the Class D Certificates and the Class E Certificates (collectively, the
"Publicly Offered Certificates"); (iii) the sale by BACM to the Initial
Purchasers of the Class XC Certificates, the Class F Certificates, the Class G
Certificates, the Class H Certificates, the Class J Certificates, the Class K
Certificates, the Class L Certificates, the Class M Certificates, the Class N
Certificates, the Class O Certificates and the Class P Certificates
(collectively, the "Privately Offered Certificates").
The Certificates are being issued pursuant to that certain
Pooling and Servicing Agreement, dated as of April 1, 2004 (the "Pooling and
Servicing Agreement"), by and among BACM, as depositor, Bank of America, N.A.,
as master servicer, Midland Loan Services, Inc., as special servicer, LaSalle
Bank National Association, as trustee and REMIC administrator, and ABN AMRO Bank
N.V., as fiscal agent. Capitalized terms used and not otherwise defined herein
have the meanings given to them in the Pooling and Servicing Agreement. The
Certificates will evidence beneficial ownership interests in a trust fund (the
"Trust Fund"), the assets of which will consist of a pool of mortgage loans
identified on Schedule I to the Pooling and Servicing Agreement, together with
certain related assets.
In rendering the opinions set forth below, we have examined and
relied upon originals, copies or specimens, certified or otherwise identified to
our satisfaction, of the Pooling and Servicing Agreement, the Prospectus
Supplement and Prospectus, each dated April 1, 2004 relating to Publicly Offered
Certificates and the Private Placement Memorandum, dated April 1, 2004, relating
to the Privately Offered Certificates (the "Private Placement Memorandum"),
specimen forms of the Certificates and such certificates, corporate records and
other documents, agreements, opinions and instruments, including, among other
things, those delivered at the closing of the purchase and sale of the
Certificates, as we have deemed appropriate as a basis for such opinion
hereinafter expressed. In connection with such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents, agreements and
instruments submitted to us as originals, the conformity to original documents,
agreements and instruments of all documents, agreements and instruments
submitted to us as copies or specimens, the conformity of the text of each
document filed with the Securities and Exchange Commission through the XXXXX
System to the printed document reviewed by us, the authenticity of the originals
of such documents, agreements and instruments submitted to us as copies or
specimens, and the accuracy of the matters set forth in the documents,
agreements and instruments we reviewed. As to various questions of fact relevant
to the opinions expressed herein, we have relied upon, and assumed the accuracy
of, the representations and warranties contained in the Pooling and Servicing
Agreement and in certificates and oral or written statements and other
information obtained from BACM, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator, the Fiscal Agent, the Initial Purchasers, the
Underwriters and others, and of public officials.
In rendering the opinion below, we do not express any opinion
concerning the laws of any jurisdiction other than the substantive federal laws
of the United States of America.
Based upon and subject to the foregoing, we are of the opinion
that, assuming that the elections required by Section 860D(b) of the Internal
Revenue Code of 1986, as amended (the "Code"), are properly made, and assuming
compliance with all relevant provisions of the Pooling and Servicing Agreement
as in effect as of the Closing Date, and with any subsequent changes in law,
including any amendments to the Code or applicable Treasury Regulations
thereunder, (a) REMIC I and REMIC II will each qualify for treatment for federal
income tax purposes as a "real estate mortgage investment conduit", as defined
in Section 860D of the Code; (b) the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates, the Class
A-5 Certificates, the Class XC Certificates, the Class XP Certificates, the
Class B Certificates, the Class C Certificates, the Class D Certificates, the
Class E Certificates, the Class F Certificates, the Class G Certificates, the
Class H Certificates, the Class J Certificates, the Class K Certificates, the
Class L Certificates, the Class M Certificates, the Class N Certificates, the
Class O Certificates and the Class P Certificates will constitute "regular
interests" in REMIC II (other than the portion of the Class P Certificates
representing Excess Interest) and the Class R-II Certificates will constitute
the sole class of "residual interests" in REMIC II within the meaning of the
Code; (c) the REMIC I Regular Interests will constitute "regular interests" in
REMIC I, and the Class R-I Certificates will constitute the sole class of
"residual interests" in REMIC I within the meaning of the Code; and (d) the
portion of the Trust Fund consisting of the Excess Interest and the Excess
Interest Distribution Account will be treated as a grantor trust under subpart
E, Part I of subchapter J of the Code, and the Class P Certificates will also
represent undivided beneficial interests in such portion.
The foregoing opinion is based on current provisions of the Code,
the Treasury regulations promulgated thereunder, published pronouncements of the
Internal Revenue Service (the "Service") and case law, any of which may be
changed at any time with retroactive effect. Further, you should be aware that
opinions of counsel are not binding on the Service or the courts. We express no
opinion as to any matters covered by this opinion of the laws of any
jurisdiction other than the federal income tax laws of the United States of
America. Additionally, we undertake no obligation to update this opinion in the
event there is either a change in the legal authorities, in the facts or in the
documents on which this opinion is based, or an inaccuracy in any of the
information upon which we have relied in rendering this opinion.
We are furnishing this letter to you solely for your benefit in
connection with the transactions referred to herein. Without our prior written
consent, this letter is not to be relied upon, used, circulated, quoted or
otherwise referred to by, or assigned to, any other person (including any person
that acquires any Certificates from you or that seeks to assert your rights in
respect of this letter (other than your successor in interest by means of
merger, consolidation, transfer of a business or other similar transaction)) or
for any other purpose. Nevertheless, you may disclose to any and all persons,
without limitation of any kind, the purported or claimed U.S. federal, state and
local income tax treatment of the Certificates, any fact that may be relevant to
understanding the purported or claimed U.S. federal, state and local income tax
treatment of the Certificates, and all materials of any kind (including this
opinion letter and any other opinions or other tax analyses) relating to such
U.S. federal, state and local tax treatment and that may be relevant to
understanding such U.S. federal, state and local income tax treatment.
Very truly yours,
/s/ Cadwalader, Xxxxxxxxxx & Xxxx LLP
SCHEDULE 1
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Banc of America Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Bank of America, N.A.
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Capital Markets, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Standard and Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
