UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
(Mark one)
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2011
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________ to ____________
Commission file number: 333-172366-01
WFRBS Commercial Mortgage Trust 2011-C5
(exact name of issuing entity as specified in its charter)
Wells Fargo Commercial Mortgage Securities, Inc.
(exact name of the depositor as specified in its charter)
Wells Fargo Bank, N.A.
General Electric Capital Corporation
C-III Commercial Mortgage LLC
The Royal Bank of Scotland
Basis Real Estate Capital II, LLC
(exact name of the sponsors as specified in their charters)
New York 38-3851385
(State or other jurisdiction of 38-7017733
incorporation or organization) 38-7017734
(I.R.S. Employer
Identification No.)
c/o Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, MD 21045
(Address of principal executive (Zip Code)
offices)
Telephone number, including area code: (410) 884-2000
Securities registered pursuant to Section 12(b) of the Act:
NONE.
Securities registered pursuant to Section 12(g) of the Act:
NONE.
Indicate by check mark if the registrant is a well-known seasoned issuer, as
defined in Rule 405 of the Securities Act.
Yes ___ No X
Indicate by check mark if the registrant is not required to file reports
pursuant to Section 13 or Section 15(d) of the Act.
Yes ___ No X
Note - Checking the box above will not relieve any registrant required to
file reports pursuant to Section 13 or 15(d) of the Exchange Act from their
obligations under those Sections.
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No ___
Indicate by check mark whether the registrant has submitted electronically
and posted on its corporate Web site, if any, every Interactive Data File
required to be submitted and posted pursuant to Rule 405 of Regulation S-T
(Section 232.405 of this chapter) during the preceding 12 months (or for
such shorter period that the registrant was required to submit and post such
files).
Not applicable.
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K (Section 229.405 of this chapter) is not contained
herein, and will not be contained, to the best of registrant's knowledge, in
definitive proxy or information statements incorporated by reference in Part
III of this Form 10-K or any amendment to this Form 10-K.
Not applicable.
Indicate by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of "large accelerated filer", "accelerated
filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer ___
Accelerated filer ___
Non-accelerated filer X (Do not check if a smaller reporting company)
Smaller reporting company ___
Indicate by check mark whether the registrant is a shell company (as defined
in Rule 12b-2 of the Act).
Yes ___ No X
State the aggregate market value of the voting and non-voting common equity
held by non-affiliates computed by reference to the price at which the
common equity was last sold, or the average bid and asked price of such
common equity, as of the last business day of the registrant's most recently
completed second fiscal quarter.
Not applicable.
Indicate by check mark whether the registrant has filed all documents and
reports required to be filed by Section 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a
plan confirmed by a court.
Not applicable.
Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date.
Not applicable.
DOCUMENTS INCORPORATED BY REFERENCE
List hereunder the following documents if incorporated by reference and the
Part of the Form 10-K (e.g., Part I, Part II, etc.) into which the document
is incorporated: (1)Any annual report to security holders; (2) Any proxy or
information statement; and (3)Any prospectus filed pursuant to Rule 424(b)
or (c) under the Securities Act of 1933. The listed documents should be
clearly described for identification purposes (e.g., annual report to
security holders for fiscal year ended December 24, 1980).
Not applicable.
Explanatory Note:
The purpose of this Amendment No. 1 to our Annual Report on Form 10-K for
the fiscal year ended December 31, 2011 as filed with the Securities and
Exchange Commission (the "SEC") on August 8, 2012, is to file (i) the final,
executed, Pooling and Servicing Agreement, dated as of November 1, 2011, by
and among Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells
Fargo Bank, National Association, as master servicer, Midland Loan Services, a
Division of PNC Bank, National Association, as special servicer, Wells Fargo
Bank, National Association, as certificate administrator, as tax administrator
and as custodian, TriMont Real Estate Advisors, Inc., as trust advisor, and
Deutsche Bank Trust Company Americas, as trustee, (ii) Mortgage Loan Purchase
Agreement, dated as of November 1, 2011, between The Royal Bank of Scotland plc,
as seller, and Wells Fargo Commercial Mortgage Securities, Inc., as purchaser,
(iii) Mortgage Loan Purchase Agreement, dated as of November 1, 2011, between
Wells Fargo Bank, National Association, as seller, and Wells Fargo Commercial
Mortgage Securities, Inc., as purchaser, (iv) Mortgage Loan Purchase Agreement,
dated as of November 1, 2011, between Basis Real Estate Capital II, LLC, as
seller, Wells Fargo Commercial Mortgage Securities, Inc., as purchaser, and
Basis Investment Group LLC, (v) Mortgage Loan Purchase Agreement, dated as of
November 1, 2011, between RBS Financial Products Inc., as seller, and Wells Fargo
Commercial Mortgage Securities, Inc., as purchaser, (vi) Mortgage Loan Purchase
Agreement, dated as of November 1, 2011, between C-III Commercial Mortgage LLC,
as seller, and Wells Fargo Commercial Mortgage Securities, Inc., as purchaser, and
(vii) Mortgage Loan Purchase Agreement, dated as of November 1, 2011, between General
Electric Capital Corporation, as seller, and Wells Fargo Commercial Mortgage
Securities, Inc., as purchaser, listed as Exhibits 4.1, 99.1, 99.2, 99.3, 99.4,
99.5 and 99.6, respectively, of the Exhibit List under Item 15(a)(3) of Part IV
of the Annual Report on Form 10-K for the fiscal year ended December 31, 2011
for WFRBS Commercial Mortgage Trust 2011-C5 (the "Original Form 10-K").
No other changes have been made to the Original Form 10-K other than the
furnishing of the exhibits described above. This Amendment No. 1 does not
reflect subsequent events occurring after the original filing date of the
Original Form 10-K or modify or update in any way disclosures made in the
Original Form 10-K.
PART I
Item 1. Business.
Omitted.
Item 1A. Risk Factors.
Omitted.
Item 1B. Unresolved Staff Comments.
None.
Item 2. Properties.
Omitted.
Item 3. Legal Proceedings.
Omitted.
Item 4. Mine Safety Disclosures.
Omitted.
PART II
Item 5. Market for Registrant's Common Equity, Related Stockholder
Matters and Issuer Purchases of Equity Securities.
Omitted.
Item 6. Selected Financial Data.
Omitted.
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Omitted.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
Omitted.
Item 8. Financial Statements and Supplementary Data.
Omitted.
Item 9. Changes in and Disagreements With Accountants on Accounting and
Financial Disclosure.
Omitted.
Item 9A. Controls and Procedures.
Omitted.
Item 9A(T). Controls and Procedures.
Omitted.
Item 9B. Other Information.
None.
PART III
Item 10. Directors, Executive Officers and Corporate Governance.
Omitted.
Item 11. Executive Compensation.
Omitted.
Item 12. Security Ownership of Certain Beneficial Owners and Management
and Related Stockholder Matters.
Omitted.
Item 13. Certain Relationships and Related Transactions, and Director
Independence.
Omitted.
Item 14. Principal Accounting Fees and Services.
Omitted.
ADDITIONAL DISCLOSURE ITEMS FOR REGULATION AB
Item 1112(b) of Regulation AB, Significant Obligor Financial Information.
The Domain mortgage loan constitutes a significant obligor within the meaning of
1101(k)(2) of Regulation AB. The Net Operating Income for the 2011 Fiscal Year
End is $19,547,962.00.
Item 1114(b)(2) of Regulation AB, Significant Enhancement Provider Financial
Information.
No entity or group of affiliated entities provides any external credit
enhancement or other support for the certificates within this transaction as
described under Item 1114 (a) of Regulation AB.
Item 1115(b) of Regulation AB, Certain Derivatives Instruments (Financial
Information).
No entity or group of affiliated entities provides any derivative instruments or
other support for the certificates within this transaction as described under
Item 1115 of Regulation AB.
Item 1117 of Regulation AB, Legal Proceedings.
The registrant knows of no material pending legal proceedings involving the
Trust and all parties related to such Trust, other than routine litigation
incidental to the duties of those respective parties.
Item 1119 of Regulation AB, Affiliations and Certain Relationships and Related
Transactions.
The information regarding this Item has been previously filed in a 424(b)(5)
filing dated November 16, 2011.
Item 1122 of Regulation AB, Compliance with Applicable Servicing Criteria.
The reports on assessment of compliance with the servicing criteria for
asset-backed securities and the related attestation reports on such assessments
of compliance are attached hereto under Item 15.
The following material instance of non-compliance has been disclosed by Wells
Fargo, National Association in its capacity as Certificate Administrator:
Material Instances of Noncompliance by the Company
Management's assessment of compliance with the Applicable Servicing Criteria
set forth by the Securities and Exchange Commission in paragraph (d) of Item
1122 of Regulation AB as of December 31, 2011 and for the Period, disclosed
that material noncompliance occurred with servicing criteria 1122(d)(3)(i)(B)
and 1122(d)(3)(ii), as fol1ows:
* With respect to servicing criterion 1122(d)(3)(i)(B), certain reports to
investors did not provide information calculated in accordance with the terms
specified in the transaction agreements.
* With respect to servicing criterion 1122(d)(3)(ii), certain amounts due to
investors were not allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction agreements.
Management's Discussion on Material Instances of Noncompliance by the Company
Disclosure: During the Period, (i) certain amounts allocated and remitted to
investors were not calculated in accordance with the terms specified in the
transaction agreements, and (ii) certain reports to investors did not provide
information calculated in accordance with the terms specified in the
transaction agreements with respect to waterfall calculations and/or reporting
disclosures. As part of its assessment of compliance with the Applicable
Servicing Criteria, Management identified that in certain instances the
material noncompliance reported in Schedule A hereto was attributable to
errors in the models impacting payments to investors and reporting
disclosures, including those for a subset of RMBS transactions in the Platform
that contain multi-group features, herein referred to as "Subject
Transactions". As Management has determined the modeling errors for Subject
Transactions to be the most significant issue resulting in material instances
of noncompliance, Management's analysis of this issue's impact on the Platform
for the Period is described below in the "Scope".
Scope: Management reviewed all of the distributions to investors during the
Period for the Subject Transactions and all of the models used to prepare
reports to investors for the Subject Transactions and determined that (i) the
total dollar amount of payment errors in excess of $5,000 for any particular
distribution during the Period when aggregating the payment errors for each
affected CUSIP, herein referred to as "Disclosed Errors", for the Subject
Transactions represented approximately one one-thousandth of one percent
(.001%) of the total dollar amount allocated and remitted to investors in all
transactions across the Platform during the Period, (ii) the tranches with
payment errors above $200 for the Subject Transactions with Disclosed Errors
comprised less than one-tenth of one percent (0.1%) of the number of tranches
in the Platform as of December 31, 2011, (iii) there were 17 Subject
Transactions with Disclosed Errors comprising less than one percent (1%) of
the total number of transactions in the Platform as of December 31, 2011, and
(iv) 340 of the Subject Transactions, including those transactions with
Disclosed Errors, required model revisions.
Remediation: For each of the instances of material noncompliance identified by
Management, including Subject Transactions, adjustments have been made to the
waterfall models, as applicable so that the models, in all material respects,
are expected to prepare the investor reports in accordance with the terms
specified in the transaction agreements. Revisions also have been made so that
the investor reports associated with the instances of material noncompliance
are expected to provide information that is, in all material respects,
calculated in accordance with the terms specified in the transaction
agreements.
The following material instance of non-compliance has been disclosed by Wells
Fargo, National Association in its capacity as Master Servicer for Commercial
Mortgage-Backed Securities:
Material Instances of Noncompliance by the Company
Management's assessment of compliance with the Applicable Servicing Criteria
set forth by the Securities and Exchange Commission in paragraph (d) of Item
1122 of Regulation AB as of December 31, 2011 and for the Period, disclosed
that material noncompliance occurred with servicing criteria 1122(d)(4)(i), as
fol1ows:
Management's Discussion on Material Instances of Noncompliance by the Company
With respect to certain commercial mortgage loans, the Company failed to
timely file continuation statements for certain Uniform Commercial Code
("UCC") financing statements as required by the transaction agreements,
thereby causing such UCC financing statements to lapse. As a result of the
noncompliance described above, certain non-possessory security interests in
certain types of personal property collateral for these loans became
unperfected and, as a result, subject to a possible loss of priority.
Remediation Promptly following the Company's discovery of such omissions as
part of its normal internal compliance review process, the Company filed new
UCC financing statements in all cases. In order to reduce the possibility of
similar occurrences in the future, the Company has provided enhanced training
to the responsible personnel, improved the quality of the relevant computer
data feeds and generally tightened its procedures for the filing of
continuation statements.
Item 1123 of Regulation AB, Servicer Compliance Statement.
The servicer compliance statements are attached hereto under Item 15.
Part IV
Item 15. Exhibits, Financial Statement Schedules.
(a) Exhibits.
(4.1) Pooling and Servicing Agreement, dated as of November 1, 2011, by and
among Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells
Fargo Bank, National Association, as master servicer, Midland Loan Services,
a Division of PNC Bank, National Association, as special servicer, Wells Fargo
Bank, National Association, as certificate administrator, as tax administrator
and as custodian, TriMont Real Estate Advisors, Inc., as trust advisor, and
Deutsche Bank Trust Company Americas, as trustee.
(31) Rule 13a-14(d)/15d-14(d) Certification.
(33) Reports on assessment of compliance with servicing criteria for
asset-backed securities.
<s> <c>
33.1 CoreLogic Commercial Real Estate Services, Inc. as Sub-Servicer for
Wells Fargo Bank, N.A. as Master Servicer
33.2 Deutsche Bank National Trust Company as Trustee
33.3 Midland Loan Services, Inc. as Special Servicer
33.4 National Tax Search, LLC as Sub-Servicer for Wells Fargo Bank, N.A. as
Master Servicer
33.5 TriMont Real Estate Advisors, Inc. as Trust Advisor
33.6 Wells Fargo Bank, N.A. as Master Servicer
33.7 Wells Fargo Bank, N.A. as Certificate Administrator
33.8 Wells Fargo Bank, N.A. as Custodian
(34) Attestation reports on assessment of compliance with servicing criteria
for asset-backed securities.
<s> <c>
34.1 CoreLogic Commercial Real Estate Services, Inc. as Sub-Servicer for
Wells Fargo Bank, N.A. as Master Servicer
34.2 Deutsche Bank National Trust Company as Trustee
34.3 Midland Loan Services, Inc. as Special Servicer
34.4 National Tax Search, LLC as Sub-Servicer for Wells Fargo Bank, N.A. as
Master Servicer
34.5 TriMont Real Estate Advisors, Inc. as Trust Advisor
34.6 Wells Fargo Bank, N.A. as Master Servicer
34.7 Wells Fargo Bank, N.A. as Certificate Administrator
34.8 Wells Fargo Bank, N.A. as Custodian
(35) Servicer compliance statement.
<s> <c>
35.1 Midland Loan Services, Inc. as Special Servicer
35.2 Wells Fargo Bank, N.A. as Master Servicer
35.3 Wells Fargo Bank, N.A. as Certificate Administrator
(99.1) Mortgage Loan Purchase Agreement, dated as of November 1, 2011,
between The Royal Bank of Scotland plc, as seller, and Wells Fargo Commercial
Mortgage Securities, Inc., as purchaser.
(99.2) Mortgage Loan Purchase Agreement, dated as of November 1, 2011,
between Wells Fargo Bank, National Association, as seller, and Wells Fargo
Commercial Mortgage Securities, Inc., as purchaser.
(99.3) Mortgage Loan Purchase Agreement, dated as of November 1, 2011,
between Basis Real Estate Capital II, LLC, as seller, Wells Fargo Commercial
Mortgage Securities, Inc., as purchaser, and Basis Investment Group LLC.
(99.4) Mortgage Loan Purchase Agreement, dated as of November 1, 2011,
between RBS Financial Products Inc., as seller, and Wells Fargo Commercial
Mortgage Securities, Inc., as purchaser.
(99.5) Mortgage Loan Purchase Agreement, dated as of November 1, 2011,
between C-III Commercial Mortgage LLC, as seller, and Wells Fargo Commercial
Mortgage Securities, Inc., as purchaser.
(99.6) Mortgage Loan Purchase Agreement, dated as of November 1, 2011,
between General Electric Capital Corporation, as seller, and Wells Fargo
Commercial Mortgage Securities, Inc., as purchaser.
(b) Not applicable.
(c) Omitted.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized.
Wells Fargo Commercial Mortgage Securities, Inc.
(Depositor)
/s/ Anthony Sfarra
Anthony Sfarra, President
(senior officer in charge of securitization of the depositor)
Date: August 8, 2012
Exhibit Index
Exhibit No.
(4.1) Pooling and Servicing Agreement, dated as of November 1, 2011, by and
among Wells Fargo Commercial Mortgage Securities, Inc., as depositor, Wells
Fargo Bank, National Association, as master servicer, Midland Loan Services,
a Division of PNC Bank, National Association, as special servicer, Wells Fargo
Bank, National Association, as certificate administrator, as tax administrator
and as custodian, TriMont Real Estate Advisors, Inc., as trust advisor, and
Deutsche Bank Trust Company Americas, as trustee.
(31) Rule 13a-14(d)/15d-14(d) Certification.
(33) Reports on assessment of compliance with servicing criteria for
asset-backed securities.
<s> <c>
33.1 CoreLogic Commercial Real Estate Services, Inc. as Sub-Servicer for
Wells Fargo Bank, N.A. as Master Servicer
33.2 Deutsche Bank National Trust Company as Trustee
33.3 Midland Loan Services, Inc. as Special Servicer
33.4 National Tax Search, LLC as Sub-Servicer for Wells Fargo Bank, N.A. as
Master Servicer
33.5 TriMont Real Estate Advisors, Inc. as Trust Advisor
33.6 Wells Fargo Bank, N.A. as Master Servicer
33.7 Wells Fargo Bank, N.A. as Certificate Administrator
33.8 Wells Fargo Bank, N.A. as Custodian
(34) Attestation reports on assessment of compliance with servicing
criteria for asset-backed securities.
<s> <c>
34.1 CoreLogic Commercial Real Estate Services, Inc. as Sub-Servicer for
Wells Fargo Bank, N.A. as Master Servicer
34.2 Deutsche Bank National Trust Company as Trustee
34.3 Midland Loan Services, Inc. as Special Servicer
34.4 National Tax Search, LLC as Sub-Servicer for Wells Fargo Bank, N.A. as
Master Servicer
34.5 TriMont Real Estate Advisors, Inc. as Trust Advisor
34.6 Wells Fargo Bank, N.A. as Master Servicer
34.7 Wells Fargo Bank, N.A. as Certificate Administrator
34.8 Wells Fargo Bank, N.A. as Custodian
(35) Servicer compliance statement.
<s> <c>
35.1 Midland Loan Services, Inc. as Special Servicer
35.2 Wells Fargo Bank, N.A. as Master Servicer
35.3 Wells Fargo Bank, N.A. as Certificate Administrator
(99.1) Mortgage Loan Purchase Agreement, dated as of November 1, 2011,
between The Royal Bank of Scotland plc, as seller, and Wells Fargo
Commercial Mortgage Securities, Inc., as purchaser.
(99.2) Mortgage Loan Purchase Agreement, dated as of November 1, 2011,
between Wells Fargo Bank, National Association, as seller, and Wells Fargo
Commercial Mortgage Securities, Inc., as purchaser.
(99.3) Mortgage Loan Purchase Agreement, dated as of November 1, 2011,
between Basis Real Estate Capital II, LLC, as seller, Wells Fargo
Commercial Mortgage Securities, Inc., as purchaser, and Basis
Investment Group LLC.
(99.4) Mortgage Loan Purchase Agreement, dated as of November 1, 2011,
between RBS Financial Products Inc., as seller, and Wells Fargo
Commercial Mortgage Securities, Inc., as purchaser.
(99.5) Mortgage Loan Purchase Agreement, dated as of November 1, 2011,
between C-III Commercial Mortgage LLC, as seller, and Wells Fargo
Commercial Mortgage Securities, Inc., as purchaser.
(99.6) Mortgage Loan Purchase Agreement, dated as of November 1, 2011,
between General Electric Capital Corporation, as seller, and Wells Fargo
Commercial Mortgage Securities, Inc., as purchaser.
