EXHIBIT 8
December 22, 2004
To the Persons Named on
Schedule 1 Hereto
Re: Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2004-6
------------------------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion letter pursuant to Section 3(e) of
that certain Private Placement Agency Agreement dated as of December 16, 2004
("Private Placement Agency Agreement"), by and between Banc of America
Commercial Mortgage Inc. ("BACM") and Banc of America Securities LLC ("BAS", in
such capacity, the "Placement Agent"), and pursuant to Section 6 of that certain
Underwriting Agreement dated December 16, 2004 (the "Underwriting Agreement"),
by and among BACM, BAS, Bear, Xxxxxxx & Co. Inc. ("Bear") and Xxxxxxx, Xxxxx &
Co. ("Xxxxxxx Xxxxx" and, collectively with BAS and Xxxx, the "Underwriters").
We have acted as special counsel to BACM and the Placement Agent in connection
with (i) the issuance of BACM's Commercial Mortgage Pass-Through Certificates,
Series 2004-6 (the "Certificates"), consisting of twenty-six classes: Class A-1,
Class A-2, Class A-3, Class A-4, Class A-AB, Class A-5, Class A-J, Class XC,
Class XP, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O, Class P, Class V, Class R-I and
Class R-II Certificates; (ii) the sale by BACM to the Underwriters of the Class
A-1, Class A-2, Class A-3, Class A-4, Class A-AB, Class A-5, Class A-J, Class
XP, Class B, Class C and Class D Certificates (collectively, the "Publicly
Offered Certificates"); (iii) the sale by BACM through the Placement Agent of
the Class XC, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P and Class V Certificates (collectively, the
"Privately Offered Certificates").
The Certificates are being issued pursuant to that certain Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), by and among BACM, as depositor, Bank of America, N.A.,
as master servicer (the "Master Servicer"), Midland Loan Services, Inc., as
special servicer (the "Special Servicer"), LaSalle Bank National Association, as
trustee (in such capacity, the "Trustee") and REMIC administrator (in such
capacity, the "REMIC Administrator"), and ABN AMRO Bank N.V., as fiscal agent
(the "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 December 16, 2004 relating to Publicly
Offered Certificates, the Private Placement Memorandum, dated December 16, 2004,
relating to the Privately Offered Certificates (the "Private Placement
Memorandum"), the 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 matters 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 Placement Agent, the Underwriters and
others, and of public officials. Except as expressly set forth herein, we have
not undertaken any independent investigation (including, without limitation,
conducting any review, search or investigation of any public files, records or
dockets) to determine the existence or absence of the facts that are material to
our opinions, and no inference as to our knowledge concerning such facts should
be drawn from our reliance on the representations of BACM, the Master Servicer,
the Special Servicer, the Trustee, the REMIC Administrator, the Fiscal Agent,
the Placement Agent, the Underwriters and others in connection with the
preparation and delivery of this letter.
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, Class A-2, Class A-3, Class A-4,
Class A-AB, Class A-5, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class XC and Class XP Certificates will evidence the "regular interests" in
REMIC II 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 represent 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 V Certificates will 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 U.S. federal, state and local tax treatment
of the Certificates and the Trust Fund, any fact that may be relevant to
understanding the U.S. federal, state and local tax treatment of the
Certificates and the Trust Fund, 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 tax treatment.
In addition, we disclaim any obligation to update this letter for
changes in fact or law, or otherwise.
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
Standard and Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx 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