Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Current Report 5 18K
2: EX-1 Underwriting Agreement 38± 175K
3: EX-4 Pooling and Servicing Agreement 585± 2.28M
4: EX-8 Opinion of Cadwalader, Wickersham & Taft LLP 4± 22K
5: EX-99.1 Bank of America Mortgage Loan Purchase and Sale 83± 321K
Agreement
6: EX-99.2 Barclays Mortgage Loan Purchase and Sale Agreement 51± 193K
EX-8 — Opinion of Cadwalader, Wickersham & Taft LLP
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EXHIBIT 8
[Letterhead of Cadwalader, Wickersham & Taft LLP]
June 27, 2008
To the Persons Named on
Schedule 1 Hereto
Re: Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2008-1
Ladies and Gentlemen:
We are rendering this opinion letter pursuant to Section 5(e) of
that certain Certificate Purchase Agreement, dated as of June 19, 2008
("Certificate Purchase Agreement"), by and among Bank of America, National
Association ("Bank of America"), Banc of America Commercial Mortgage Inc.
("BACM"), Banc of America Securities LLC ("BAS") and Barclays Capital Inc.
("Barclays" and, together with BAS, the "Initial Purchasers") and pursuant to
Section 6(f) of that certain Underwriting Agreement, dated as of June 19, 2008
(the "Underwriting Agreement"), by and among Bank of America, BACM, BAS,
Barclays and Citigroup Global Markets Inc. ("Citigroup" and, collectively with
BAS and Barclays, the "Underwriters"). We have acted as special counsel to BACM
in connection with: (i) the issuance of the Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2008-1 (the
"Certificates"), which consist of 28 classes: the Class A-1, Class A-2, Class
A-3, Class A-SB, Class A-4, Class A-1A, Class A-M, Class A-J, Class XW, 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 Q, Class S, 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-SB, Class A-4, Class A-1A, Class A-M and
Class A-J Certificates (collectively, the "Publicly Offered Certificates"); and
(iii) the sale by BACM to the Initial Purchasers of the Class XW, 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 Q, Class S, Class V, Class R-I and Class
R-II Certificates (collectively, the "Privately Offered Certificates").
The Certificates are being issued pursuant to that certain Pooling
and Servicing Agreement, dated as of June 1, 2008 (the "Pooling and Servicing
Agreement"), by and among BACM, as depositor, Bank of America, National
Association, as master servicer, CWCapital Asset Management LLC, as special
servicer, Wells Fargo Bank, N.A., as trustee, and LaSalle Bank National
Association, as certificate administrator and REMIC administrator. 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 and the
Prospectus Supplement (together, the "Prospectus"), dated June 19, 2008,
relating to the Publicly Offered Certificates, the Private Placement Memorandum,
dated June 19, 2008 (which includes the Prospectus as an exhibit) 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 and
relied upon (x) the legal capacity of all natural persons and (y) (except as
expressly opined herein) 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 EDGAR 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 Servicers, the
Trustee, the Certificate Administrator, the REMIC Administrator, the Initial
Purchasers, 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 Servicers, the
Trustee, the Certificate Administrator, the REMIC Administrator, the Initial
Purchasers, the Underwriters and others in connection with the preparation and
delivery of this letter. Any capitalized terms used herein and not defined shall
have the meaning ascribed to them in the Pooling and Servicing Agreement.
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 (i) that the elections required by Section 860D(b) of the Internal
Revenue Code of 1986, as amended (the "Code"), are properly made, (ii)
compliance with all relevant provisions of the Pooling and Servicing Agreement
as in effect as of the Closing Date, (iii) compliance with the Apple Hotel
Portfolio Servicing Agreement and the Arundel Mills Servicing Agreement and the
continuing qualification of the REMICs formed thereunder and (iv) compliance
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-SB, Class A-4, Class A-1A, Class XW, Class A-M,
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 Q and Class S
Certificates will constitute "regular interests" in REMIC II within the meaning
of Section 860G(a)(1) of the Code; (c) the Class R-II Certificates will
constitute the sole class of "residual interests" in REMIC II within the meaning
of Section 860G(a)(2) of the Code; (d) the REMIC I Regular Interests will
constitute "regular interests" in REMIC I within the meaning of Section
860G(a)(1) of the Code; (e) the Class R-I Certificates will constitute the sole
class of "residual interests" in REMIC I within the meaning of Section
860G(a)(2) of the Code; and (f) 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
grantor trust.
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. Furthermore,
this opinion is not intended or written to be used, and cannot be used, for the
purpose of avoiding U.S. federal, state or local tax penalties. This opinion is
written in connection with the promotion or marketing by BACM, the Initial
Purchasers and/or the Underwriters of the transactions or matters addressed in
this letter. Taxpayers (other than BACM) should seek advice based on their
particular circumstances from an independent tax advisor.
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, Wickersham & Taft LLP
SCHEDULE 1
Banc of America Commercial Mortgage Inc.
214 North Tryon Street
NC1-027-22-03
Charlotte, North Carolina 28255
Bank of America, National Association
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Banc of America Securities LLC
214 North Tryon Street
NC1-027-22-03
Charlotte, North Carolina 28255
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
55 Water Street, 41st Floor
New York, New York 10041-0003
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
LaSalle Bank National Association
135 South LaSalle Street
Mail Code: IL4-135-16-25
Chicago, Illinois 60603
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘8-K’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on / For Period End: | | 7/3/08 |
| | 6/27/08 | | 1 | | | | | 8-K |
| | 6/19/08 | | 1 | | | | | FWP |
| | 6/1/08 | | 1 |
| List all Filings |
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