UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: September 19, 2023
(Date of earliest event reported)
BANK5 2023-5YR3
(Central Index Key Number 0001991524)
(Exact name of issuing entity)
Bank of America, National Association
(Central Index Key Number 0001102113)
Morgan Stanley Mortgage Capital Holdings LLC
(Central Index Key Number 0001541557)
Wells Fargo Bank, National Association
(Central Index Key Number 0000740906)
Citi Real Estate Funding Inc.
(Central Index Key Number 0001701238)
Banc of America Merrill Lynch Commercial Mortgage Inc.
(Central Index Key Number 0001005007)
(Exact name of registrant as specified in its charter)
| Delaware | 333-261279-04 | 56-1950039 |
| (State or other jurisdiction of incorporation) | (Commission File No.) | (IRS Employer Identification No.) |
| One Bryant Park | |
| New York, New York | 10036 |
| (Address of principal executive offices) | (Zip Code) |
| Registrant’s telephone number, including area code | 646-855-3953 |
| Not Applicable |
| (Former name or former address, if changed since last report.) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading
Symbol(s) | Name of each exchange on which
registered |
| | | |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 8.01. Other Events.
On September 19, 2023, BofA Securities, Inc. (“BOAS”), Morgan Stanley & Co. LLC (“Morgan Stanley”), Wells Fargo Securities, LLC (“WFS”), Citigroup Global Markets Inc. (“Citi”), Academy Securities, Inc. (“Academy”) and Drexel Hamilton, LLC (“Drexel”) entered into an agreement, dated as of September 19, 2023, among Banc of America Merrill Lynch Commercial Mortgage Inc. (the “Registrant”), as depositor, BOAS, Morgan Stanley, WFS, Citi, Academy and Drexel as underwriters (BOAS, Morgan Stanley, WFS, Citi, Academy and Drexel, collectively in such capacity, the “Underwriters”), and BANA (the “Underwriting Agreement”), an executed version of which is attached hereto as Exhibit 1.1, with respect to the sale of the Publicly Offered Certificates (as defined below) scheduled to occur on or about September 28, 2023. The Publicly Offered Certificates are expected to have an aggregate initial principal amount of $762,847,000.
On or about September 28, 2023, a series of mortgage pass-through certificates, entitled Commercial Mortgage Pass-Through Certificates, Series 2023-5YR3 (the “Certificates”), is expected to be issued by BANK5 2023-5YR3, a New York common law trust (the “Issuing Entity”), pursuant to a Pooling and Servicing Agreement, attached hereto as Exhibit 4.1 and dated and effective as of September 1, 2023 (the “Pooling and Servicing Agreement”), between the Registrant, as depositor, Wells Fargo Bank, National Association, as master servicer, Greystone Servicing Company LLC, as special servicer, Computershare Trust Company, National Association, as certificate administrator and as trustee, and Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer.
The assets of the Issuing Entity are expected to include several mortgage loans which are part of whole loans. Each whole loan is governed by a co-lender, intercreditor or similar agreement (each, an “Intercreditor Agreement”) between the holders of the promissory notes comprising such whole loan, the terms of which are described under “DESCRIPTION OF THE MORTGAGE POOL—The Whole Loans” in the Prospectus described below. Each Intercreditor Agreement is attached as an exhibit hereto, as described in the following table. Moreover, certain of such whole loans will not be serviced pursuant to the Pooling and Servicing Agreement, but will instead be serviced pursuant to a different servicing agreement (each, a “Non-Serviced PSA”). Each such Non-Serviced PSA is attached as an exhibit hereto, as described in the following table. For a description of the servicing of the affected whole loans under such Non-Serviced PSAs, see “POOLING AND SERVICING AGREEMENT—Servicing of the Non-Serviced Mortgage Loans” in the Prospectus described below.
Name of Intercreditor Agreement
(as defined in the Pooling and Servicing Agreement) | Intercreditor
Agreement | Non-Serviced
PSA (if any) |
| Short Pump Town Center | 4.7 | N/A |
| 11 West 42nd Street | 4.8 | N/A |
| Gateway Center South | 4.9 | 4.2 |
| Westfarms | 4.10 | N/A |
| Miracle Mile Shops | 4.11 | 4.3 |
| Heritage Plaza | 4.12 | N/A |
| Cipriani NYC Portfolio | 4.13 | N/A |
| 503-511 Broadway | 4.14 | 4.4 |
| Harborside 2-3 | 4.15 | 4.5 |
| Brandon Mall | 4.16 | 4.4 |
| 6330 West Loop South | 4.17 | N/A |
| Back Bay Office | 4.18 | 4.6 |
The Certificates will consist of the classes (each, a “Class”) designated as (i) the Class A-2, Class A-2-1, Class A-2-2, Class A-2-X1, Class A-2-X2, Class A-3, Class A-3-1, Class A-3-2, Class A-3-X1, Class A-3-X2, Class X-A, Class X-B, Class A-S, Class A-S-1, Class A-S-2, Class A-S-X1, Class A-S-X2, Class B, Class B-1, Class B-2, Class B-X1, Class B-X2, Class C, Class C-1, Class C-2, Class C-X1 and Class C-X2 Certificates (collectively, the “Publicly Offered Certificates”), (ii) the Class X-D, Class X-F, Class X-G, Class X-H, Class D, Class E, Class F, Class G, Class H, Class V and Class R Certificates (collectively, the “Privately Offered Certificates”), and (iii) the RR Interest.
The Publicly Offered Certificates, the Privately Offered Certificates and the RR Interest represent, in the aggregate, the entire beneficial ownership in the Issuing Entity, a common law trust fund to be formed on or about September 28, 2023 under the laws of the State of New York pursuant to the Pooling and Servicing Agreement. The Issuing Entity’s primary assets are expected to be thirty-six (36) fixed rate mortgage loans (the “Mortgage Loans”) secured by first liens on sixty-five (65) commercial and/or multifamily properties. Certain of the Mortgage Loans are expected to be acquired by the Registrant from Bank of America, National Association (“BANA”) pursuant to a Mortgage Loan Purchase Agreement, dated and effective as of September 19, 2023, between the Registrant and BANA, an executed version of which is attached hereto as Exhibit 99.1; certain of the Mortgage Loans are expected to be acquired by the Registrant from Morgan Stanley Mortgage Capital Holdings LLC (“MSMCH”) pursuant to a Mortgage Loan Purchase Agreement, dated and effective as of September 19, 2023, between the Registrant and MSMCH, an executed version of which is attached hereto as Exhibit 99.2; certain of the Mortgage Loans are expected to be acquired by the Registrant from Wells Fargo Bank, National Association (“WFB”) pursuant to a Mortgage Loan Purchase Agreement, dated and effective as of September 19, 2023, between the Registrant and WFB, an executed version of which is attached hereto as Exhibit 99.3; and certain of the Mortgage Loans are expected to be acquired by the Registrant from Citi Real Estate Funding Inc. (“CREFI”) pursuant to a Mortgage Loan Purchase Agreement, dated and effective as of September 19, 2023, between the Registrant and CREFI, an executed version of which is attached hereto as Exhibit 99.4.
The funds to be used by the Registrant to pay the purchase price for the Mortgage Loans are expected to be derived from the proceeds of (i) the sale of the Publicly Offered Certificates by the Registrant to the Underwriters pursuant to the Underwriting Agreement, (ii) the sale of the Privately Offered Certificates, having an aggregate initial principal amount of $78,916,243, by the Registrant to BOAS, Morgan Stanley, WFS, Citi, Academy and Drexel (collectively in such capacity, the “Initial Purchasers”) pursuant to a Certificate Purchase Agreement, dated as of September 19, 2023, among the Registrant, as depositor, the Initial Purchasers, as initial purchasers, and BANA, which Privately Offered Certificates will be sold in transactions exempt from registration under the Securities Act of 1933, as amended, and (iii) the sale of the RR Interest, having a principal amount of $44,303,328.64, to BANA, Morgan Stanley Bank, N.A., WFB and CREFI (collectively, in such capacity, the “Retaining Parties”), pursuant to a transfer
agreement, dated as of September 19, 2023, between the Registrant and the Retaining Parties, which RR Interest will be sold in transactions exempt from registration under the Securities Act of 1933, as amended, pursuant to Section 4(a)(2) of the Act.
The Publicly Offered Certificates and the Mortgage Loans are more particularly described in the Prospectus, dated September 19, 2023 and as filed with the Securities and Exchange Commission on September 19, 2023 (the “Prospectus”). In connection with such Prospectus, the Chief Executive Officer of the Registrant has provided the certification attached hereto as Exhibit 36.1 and dated September 19, 2023.
The related registration statement (file no. 333-261279) was originally declared effective on December 17, 2021.
| Item 9.01. | Financial Statements and Exhibits. |
| | |
| (d) | Exhibits |
| | |
| Exhibit No. | Description |
| Exhibit 1.1 | Underwriting Agreement, dated as of September 19, 2023, among Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, BofA Securities, Inc., Morgan Stanley & Co. LLC, Wells Fargo Securities, LLC, Citigroup Global Markets Inc., Academy Securities, Inc. and Drexel Hamilton, LLC, as underwriters, and Bank of America, National Association. |
| | |
| Exhibit 4.1 | Pooling and Servicing Agreement, dated and effective as of September 1, 2023, between Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, Wells Fargo Bank, National Association, as master servicer, Greystone Servicing Company LLC, as special servicer, Computershare Trust Company, National Association, as certificate administrator and trustee, and Pentalpha Surveillance LLC, as operating advisor and asset representations reviewer. |
| | |
| Exhibit 4.2 | Pooling and Servicing Agreement, dated as of August 1, 2023, among BMO Commercial Mortgage Securities LLC, as depositor, KeyBank National Association, as master servicer, 3650 REIT Loan Servicing LLC, as special servicer, Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, Computershare Trust Company, National Association, as certificate administrator, and Computershare Trust Company, National Association, as trustee. |
| | |
| Exhibit 4.3 | Trust and Servicing Agreement, dated as of June 21, 2023, between GS Mortgage Securities Corporation II, as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as servicer, KeyBank National Association, as special servicer, Computershare Trust Company, National Association, as trustee, certificate administrator and custodian, and Park Bridge Lender Services LLC, as operating advisor. |
| | |
| Exhibit 4.4 | Pooling and Servicing Agreement, dated and effective as of July 1, 2023, between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as master servicer, CWCapital Asset Management LLC, as special servicer, Computershare Trust Company, National Association, as certificate administrator and as trustee, and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer. |
| | |
| Exhibit 4.5 | Pooling and Servicing Agreement, dated as of May 1, 2023, among Citigroup Commercial Mortgage Securities Inc., as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer, 3650 REIT Loan Servicing LLC, as a special servicer, BellOak, LLC, as operating advisor, BellOak, LLC, as asset representations reviewer, Computershare Trust Company, National Association, as certificate administrator, and Computershare Trust Company, National Association, as trustee. |
| Exhibit 4.6 | Pooling and Servicing Agreement, dated as of July 1, 2023, among Citigroup Commercial Mortgage Securities Inc., as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer, K-Star Asset Management LLC, as a special servicer, Situs Holdings, LLC, solely with respect to the Back Bay Office whole loan, as a special servicer, Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer, Computershare Trust Company, National Association, as certificate administrator, and Computershare Trust Company, National Association, as trustee. |
| | |
| Exhibit 4.7 | The Short Pump Town Center Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). |
| | |
| Exhibit 4.8 | The 11 West 42nd Street Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). |
| | |
| Exhibit 4.9 | The Gateway Center South Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). |
| | |
| Exhibit 4.10 | The Westfarms Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). |
| | |
| Exhibit 4.11 | The Miracle Mile Shops Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). |
| | |
| Exhibit 4.12 | The Heritage Plaza Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). |
| | |
| Exhibit 4.13 | The Cipriani NYC Portfolio Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). |
| | |
| Exhibit 4.14 | The 503-511 Broadway Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). |
| | |
| Exhibit 4.15 | The Harborside 2-3 Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). |
| | |
| Exhibit 4.16 | The Brandon Mall Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). |
| | |
| Exhibit 4.17 | The 6330 West Loop South Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). |
| | |
| Exhibit 4.18 | The Back Bay Office Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). |
| | |
| Exhibit 36.1 | Depositor’s Certification for Shelf Offerings of Asset-Backed Securities in respect of that certain Prospectus dated September 19, 2023, which such certification is dated September 19, 2023. |
| | |
| Exhibit 99.1 | Mortgage Loan Purchase Agreement, dated and effective as of September 19, 2023, between Bank of America, National Association, as seller, and Banc of America Merrill Lynch Commercial Mortgage Inc., as purchaser. |
| | |
| Exhibit 99.2 | Mortgage Loan Purchase Agreement, dated and effective as of September 19, 2023, between Morgan Stanley Mortgage Capital Holdings LLC, as seller, and Banc of America Merrill Lynch Commercial Mortgage Inc., as purchaser. |
| | |
| Exhibit 99.3 | Mortgage Loan Purchase Agreement, dated and effective as of September 19, 2023, between Wells Fargo Bank, National Association, as seller, and Banc of America Merrill Lynch Commercial Mortgage Inc., as purchaser. |
| | |
| Exhibit 99.4 | Mortgage Loan Purchase Agreement, dated and effective as of September 19, 2023, between Citi Real Estate Funding Inc., as seller, and Banc of America Merrill Lynch Commercial Mortgage Inc., as purchaser. |
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: September 21, 2023 | BANC OF AMERICA MERRILL LYNCH
COMMERCIAL MORTGAGE INC. |
| | (Registrant) |
| | | |
| | | |
| | By: | /s/ Leland F. Bunch, III |
| | | Name: Leland F. Bunch, III |
| | | Title: Chief Executive Officer & President |
INDEX TO EXHIBITS
Item 601(a) of
Regulation S-K
Exhibit No. | | Description | Paper (P) or
Electronic (E) |
| 1.1 | | Underwriting Agreement, dated as of September 19, 2023, among Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, BofA Securities, Inc., Morgan Stanley & Co. LLC, Wells Fargo Securities, LLC, Citigroup Global Markets Inc., Academy Securities, Inc. and Drexel Hamilton, LLC, as underwriters, and Bank of America, National Association. | (E) |
| 4.1 | | Pooling and Servicing Agreement, dated and effective as of September 1, 2023, between Banc of America Merrill Lynch Commercial Mortgage Inc., as depositor, Wells Fargo Bank, National Association, as master servicer, Greystone Servicing Company LLC, as special servicer, Computershare Trust Company, National Association, as certificate administrator and trustee, and Pentalpha Surveillance LLC, as operating advisor and asset representations reviewer. | (E) |
| | | | |
| 4.2 | | Pooling and Servicing Agreement, dated as of August 1, 2023, among BMO Commercial Mortgage Securities LLC, as depositor, KeyBank National Association, as master servicer, 3650 REIT Loan Servicing LLC, as special servicer, Pentalpha Surveillance LLC, as operating advisor and as asset representations reviewer, Computershare Trust Company, National Association, as certificate administrator, and Computershare Trust Company, National Association, as trustee. | (E) |
| | | | |
Item 601(a) of
Regulation S-K
Exhibit No. | | Description | Paper (P) or
Electronic (E) |
| 4.3 | | Trust and Servicing Agreement, dated as of June 21, 2023, between GS Mortgage Securities Corporation II, as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as servicer, KeyBank National Association, as special servicer, Computershare Trust Company, National Association, as trustee, certificate administrator and custodian, and Park Bridge Lender Services LLC, as operating advisor. | (E) |
| 4.4 | | Pooling and Servicing Agreement, dated and effective as of July 1, 2023, between Morgan Stanley Capital I Inc., as depositor, Wells Fargo Bank, National Association, as master servicer, CWCapital Asset Management LLC, as special servicer, Computershare Trust Company, National Association, as certificate administrator and as trustee, and Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer. | (E) |
| 4.5 | | Pooling and Servicing Agreement, dated as of May 1, 2023, among Citigroup Commercial Mortgage Securities Inc., as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer, 3650 REIT Loan Servicing LLC, as a special servicer, BellOak, LLC, as operating advisor, BellOak, LLC, as asset representations reviewer, Computershare Trust Company, National Association, as certificate administrator, and Computershare Trust Company, National Association, as trustee. | (E) |
Item 601(a) of
Regulation S-K
Exhibit No. | | Description | Paper (P) or
Electronic (E) |
| 4.6 | | Pooling and Servicing Agreement, dated as of July 1, 2023, among Citigroup Commercial Mortgage Securities Inc., as depositor, Midland Loan Services, a Division of PNC Bank, National Association, as master servicer, K-Star Asset Management LLC, as a special servicer, Situs Holdings, LLC, solely with respect to the Back Bay Office whole loan, as a special servicer, Park Bridge Lender Services LLC, as operating advisor and as asset representations reviewer, Computershare Trust Company, National Association, as certificate administrator, and Computershare Trust Company, National Association, as trustee. | (E) |
| 4.7 | | The Short Pump Town Center Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). | (E) |
| 4.8 | | The 11 West 42nd Street Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). | (E) |
| 4.9 | | The Gateway Center South Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). | (E) |
| 4.10 | | The Westfarms Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). | (E) |
| 4.11 | | The Miracle Mile Shops Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). | (E) |
| 4.12 | | The Heritage Plaza Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). | (E) |
| 4.13 | | The Cipriani NYC Portfolio Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). | (E) |
Item 601(a) of
Regulation S-K
Exhibit No. | | Description | Paper (P) or
Electronic (E) |
| 4.14 | | The 503-511 Broadway Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). | (E) |
| 4.15 | | The Harborside 2-3 Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). | (E) |
| 4.16 | | The Brandon Mall Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). | (E) |
| 4.17 | | The 6330 West Loop South Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). | (E) |
| | | | |
| 4.18 | | The Back Bay Office Intercreditor Agreement (as defined in the Pooling and Servicing Agreement). | (E) |
| | | | |
| 36.1 | | Depositor’s Certification for Shelf Offerings of Asset-Backed Securities in respect of that certain Prospectus dated September 19, 2023, which such certification is dated September 19, 2023. | (E) |
| 99.1 | | Mortgage Loan Purchase Agreement, dated and effective as of September 19, 2023, between Bank of America, National Association, as seller, and Banc of America Merrill Lynch Commercial Mortgage Inc., as purchaser. | (E) |
| 99.2 | | Mortgage Loan Purchase Agreement, dated and effective as of September 19, 2023, between Morgan Stanley Mortgage Capital Holdings LLC, as seller, and Banc of America Merrill Lynch Commercial Mortgage Inc., as purchaser. | |
| | | | |
Item 601(a) of
Regulation S-K
Exhibit No. | | Description | Paper (P) or
Electronic (E) |
| 99.3 | | Mortgage Loan Purchase Agreement, dated and effective as of September 19, 2023, between Wells Fargo Bank, National Association, as seller, and Banc of America Merrill Lynch Commercial Mortgage Inc., as purchaser. | (E) |
| | | | |
| 99.4 | | Mortgage Loan Purchase Agreement, dated and effective as of September 19, 2023, between Citi Real Estate Funding Inc., as seller, and Banc of America Merrill Lynch Commercial Mortgage Inc., as purchaser. | (E) |
