Attached files
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: 333-167764-01
Morgan Stanley Capital I Trust 2011-C3
(exact name of issuing entity as specified in its charter)
Morgan Stanley Capital I Inc.
(exact name of the depositor as specified in its charter)
Bank of America, National Association
Morgan Stanley Mortgage Capital Holdings LLC
(exact names of the sponsors as specified in their charters)
New York 38-3851381
(State or other jurisdiction of 38-3851382
incorporation or organization) 38-3851383
38-7003238
(I.R.S. Employer
Identification No.)
c/o Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
(Address of principal executive (Zip Code)
offices)
Telephone number, including area code: (212) 761-4000
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).
4.1 Pooling and Servicing Agreement, dated as of October 1, 2011, by and
among Morgan Stanley Capital I Inc. as Depositor, Wells Fargo Bank, National
Association, as Master Servicer, Midland Loan Services, a Division of PNC
Bank, National Association, as Special Servicer, U.S. Bank National
association, as Trustee, Trimont Real Estate Advisors, Inc., as Trust
Advisor, Wells Fargo Bank, National Association, as Custodian, Certificate
Administrator, Certificate Registrar and Authenticating Agent. (Filed as
Exhibit 4.1 to the Registrant's Current Report on Form 8-K filed on October
11, 2011 and incorporated by reference herein)
99.1 Mortgage Loan Purchase Agreement, dated as of September 14, 2011,
between Morgan Stanley Capital I Inc. and Morgan Stanley Mortgage Capital
Holdings LLC. (Filed as Exhibit 99.1 to the Registrant's Current Report on
Form 8-K filed on October 11, 2011 and incorporated by reference herein)
99.2 Mortgage Loan Purchase Agreement, dated as of September 14, 2011,
between Morgan Stanley Capital I Inc. and Bank of America, National
Association. (Filed as Exhibit 99.2 to the Registrant's Current Report on
Form 8-K filed on October 11, 2011 and incorporated by reference herein)
99.3 Primary Servicing Agreement, dated as of October 1, 2011, between Wells
Fargo Bank, National Association, as master servicer, and Bank of
America, National Association, as primary servicer. (Filed as Exhibit 99.3
to the Registrant's Current Report on Form 8-K filed on October 11, 2011 and
incorporated by reference herein)
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 on March 30, 2012 (the "Form 10-K"), is to update the disclosure
under the heading "Item 1122 of Regulation AB, Compliance with Applicable
Servicing Criteria." No other changes have been made to the Form 10-K other
than the change described above. This Amendment No. 1 does not reflect
subsequent events occurring after the original filing date of the 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 mortgaged property securing the Park City Center loan constitutes a
significant obligor within the meaning of 1101(k)(2) of Regulation AB. The
most recent (unaudited) net operating income of the significant obligor for
the 2011 fiscal year is $19,865,370.00.
Item 1114(b)(2) of Regulation AB, Significant Enhancement Provider Financial
Information.
No entity or group of affiliated entities provides any enhancement or other
support for the certificates 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
for the certificates as described under Item 1115 of Regulation AB.
Item 1117 of Regulation AB, Legal Proceedings.
The registrant knows of no pending legal proceeding (or legal proceeding
contemplated by governmental authorities) against the sponsors, depositor,
trustee, issuing entity, servicers, originators or other parties contemplated
by Item 1100(d)(1) of Regulation AB, or of which any property of the foregoing
is the subject, that is material to security holders as described under
Item 1117 of Regulation AB.
Item 1119 of Regulation AB, Affiliations and Certain Relationships and Related
Transactions.
The information regarding this Item has been disclosed in the Prospectus of
the Issuing Entity filed in a 424(b)(5) filing dated September 30, 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 report on assessment of compliance with servicing criteria prepared by
Wells Fargo Bank, National Association, as certificate administrator, and
attached to this report on Form 10-K describes the following material instance
of noncompliance on Schedules A and B thereto:
"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
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". " Wells Fargo Bank, National Association's
Management's analysis of the payment and reporting errors on the
Subject Transactions and their impact on the Platform for the Period is
described below under "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."
With respect to the assessment of compliance with the Applicable Servicing
Criteria and the schedules thereto prepared by Wells Fargo Bank, National
Association, as certificate administrator and attached to this Form 10-K as
Exhibit 33.6, the use of the plural phrase "material instances of
noncompliance" (emphasis added) refers to the fact that Wells Fargo Bank,
National Association identified (i) reporting errors pertaining to servicing
criteria 1122(d)(3)(i)(B) that in the aggregate amounted to a material instance
of noncompliance, and (ii) payment allocation and remittance reporting errors
pertaining to servicing criteria 1122(d)(3)(ii) that in the aggregate amounted
to a material instance of noncompliance. Based on Wells Fargo Bank, National
Association's management's review, it has determined that the errors that led
to the disclosure of these two material instances of noncompliance did not
involve or relate to the transaction to which this Form 10-K relates.
The report on assessment of compliance with servicing criteria prepared by
Wells Fargo Bank, National Association, as master servicer, and attached
to this report on Form 10-K describes the following material instance
of noncompliance therein:
"The Company's management has assessed the Company's compliance with the
applicable servicing criteria set forth in Item 1122(d) of Regulation AB with
respect to the Platform as of and for the year ended December 31, 2011. In
making this assessment, management used the criteria set forth by the
Securities and Exchange Commission in paragraph (d) of Item 1122 of Regulation
AB. Based on such assessment, the Company's management believes that as of and
for the year ended December 31, 2011, the Company has complied in all material
respects with the applicable servicing criteria set forth in Item 1122(d) of
Regulation AB with respect to the Platform, except for the following material
noncompliance with servicing criterion 1122(d)(4)(i):
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 October 1, 2011, by and
among Morgan Stanley Capital I Inc. as Depositor, Wells Fargo Bank, National
Association, as Master Servicer, Midland Loan Services, a Division of PNC
Bank, National Association, as Special Servicer, U.S. Bank National
Association, as Trustee, Trimont Real Estate Advisors, Inc., as Trust
Advisor, Wells Fargo Bank, National Association, as Custodian, Certificate
Administrator, Certificate Registrar and Authenticating Agent. (Filed as
Exhibit 4.1 to the Registrant's Current Report on Form 8-K filed on October
11, 2011 and incorporated by reference herein)
(31) Rule 13a-14(d)/15d-14(d) Certification.
(33) Reports on assessment of compliance with servicing criteria for
asset-backed securities.
33.1 Bank of America, National Association as Primary Servicer
33.2 CoreLogic Commercial Real Estate Services, Inc. as Servicing Function Participant
33.3 Midland Loan Services, a Division of PNC Bank, National Association as Special
Servicer
33.4 National Tax Search, LLC as Servicing Function Participant
33.5 TriMont Real Estate Advisors, Inc. as Trust Advisor
33.6 Wells Fargo Bank, National Association as Certificate Administrator
33.7 Wells Fargo Bank, National Association as Custodian
33.8 Wells Fargo Bank, National Association as Master Servicer
(34) Attestation reports on assessment of compliance with servicing criteria
for asset-backed securities.
34.1 Bank of America, National Association as Primary Servicer
34.2 CoreLogic Commercial Real Estate Services, Inc. as Servicing Function Participant
34.3 Midland Loan Services, a Division of PNC Bank, National Association as Special
Servicer
34.4 National Tax Search, LLC as Servicing Function Participant
34.5 TriMont Real Estate Advisors, Inc. as Trust Advisor
34.6 Wells Fargo Bank, National Association as Certificate Administrator
34.7 Wells Fargo Bank, National Association as Custodian
34.8 Wells Fargo Bank, National Association as Master Servicer
(35) Servicer compliance statement.
35.1 Bank of America, National Association as Primary Servicer
35.2 CoreLogic Commercial Real Estate Services, Inc. as Servicing Function Participant
35.3 Midland Loan Services, a Division of PNC Bank, National Association as Special
Servicer
35.4 TriMont Real Estate Advisors, Inc. as Trust Advisor
35.5 Wells Fargo Bank, National Association as Certificate Administrator
35.6 Wells Fargo Bank, National Association as Custodian
35.7 Wells Fargo Bank, National Association as Master Servicer
(99.1) Mortgage Loan Purchase Agreement, dated as of September 14, 2011,
between Morgan Stanley Capital I Inc. and Morgan Stanley Mortgage Capital
Holdings LLC. (Filed as Exhibit 99.1 to the Registrant's Current Report on
Form 8-K filed on October 11, 2011 and incorporated by reference herein)
(99.2) Mortgage Loan Purchase Agreement, dated as of September 14, 2011,
between Morgan Stanley Capital I Inc. and Bank of America, National
Association. (Filed as Exhibit 99.2 to the Registrant's Current Report on
Form 8-K filed on October 11, 2011 and incorporated by reference herein)
(99.3) Primary Servicing Agreement, dated as of October 1, 2011, between
Wells Fargo Bank, National Association, as master servicer, and Bank of
America, National Association, as primary servicer. (Filed as Exhibit 99.3
to the Registrant's Current Report on Form 8-K filed on October 11, 2011
and incorporated by reference herein)
(b) See (a) above.
(c) Not Applicable.
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.
Morgan Stanley Capital I Inc.
(Depositor)
/s/ Steven Stern
Steven Stern, President
(senior officer in charge of securitization of the depositor)
Date: September 4, 2012
Exhibit Index
Exhibit No.
(4.1) Pooling and Servicing Agreement, dated as of October 1, 2011, by and
among Morgan Stanley Capital I Inc. as Depositor, Wells Fargo Bank, National
Association, as Master Servicer, Midland Loan Services, a Division of PNC
Bank, National Association, as Special Servicer, U.S. Bank National
Association, as Trustee, Trimont Real Estate Advisors, Inc., as Trust
Advisor, Wells Fargo Bank, National Association, as Custodian, Certificate
Administrator, Certificate Registrar and Authenticating Agent. (Filed as
Exhibit 4.1 to the Registrant's Current Report on Form 8-K filed on October
11, 2011 and incorporated by reference herein)
(31) Rule 13a-14(d)/15d-14(d) Certification.
(33) Reports on assessment of compliance with servicing criteria for
asset-backed securities.
33.1 Bank of America, National Association as Primary Servicer
33.2 CoreLogic Commercial Real Estate Services, Inc. as Servicing Function Participant
33.3 Midland Loan Services, a Division of PNC Bank, National Association as Special
Servicer
33.4 National Tax Search, LLC as Servicing Function Participant
33.5 TriMont Real Estate Advisors, Inc. as Trust Advisor
33.6 Wells Fargo Bank, National Association as Certificate Administrator
33.7 Wells Fargo Bank, National Association as Custodian
33.8 Wells Fargo Bank, National Association as Master Servicer
(34) Attestation reports on assessment of compliance with servicing
criteria for asset-backed securities.
34.1 Bank of America, National Association as Primary Servicer
34.2 CoreLogic Commercial Real Estate Services, Inc. as Servicing Function Participant
34.3 Midland Loan Services, a Division of PNC Bank, National Association as Special
Servicer
34.4 National Tax Search, LLC as Servicing Function Participant
34.5 TriMont Real Estate Advisors, Inc. as Trust Advisor
34.6 Wells Fargo Bank, National Association as Certificate Administrator
34.7 Wells Fargo Bank, National Association as Custodian
34.8 Wells Fargo Bank, National Association as Master Servicer
(35) Servicer compliance statement.
35.1 Bank of America, National Association as Primary Servicer
35.2 CoreLogic Commercial Real Estate Services, Inc. as Servicing Function Participant
35.3 Midland Loan Services, a Division of PNC Bank, National Association as Special
Servicer
35.4 TriMont Real Estate Advisors, Inc. as Trust Advisor
35.5 Wells Fargo Bank, National Association as Certificate Administrator
35.6 Wells Fargo Bank, National Association as Custodian
35.7 Wells Fargo Bank, National Association as Master Servicer
(99.1) Mortgage Loan Purchase Agreement, dated as of September 14, 2011,
between Morgan Stanley Capital I Inc. and Morgan Stanley Mortgage Capital
Holdings LLC. (Filed as Exhibit 99.1 to the Registrant's Current Report on
Form 8-K filed on October 11, 2011 and incorporated by reference herein)
(99.2) Mortgage Loan Purchase Agreement, dated as of September 14, 2011,
between Morgan Stanley Capital I Inc. and Bank of America, National
Association. (Filed as Exhibit 99.2 to the Registrant's Current Report on
Form 8-K filed on October 11, 2011 and incorporated by reference herein)
(99.3) Primary Servicing Agreement, dated as of October 1, 2011, between
Wells Fargo Bank, National Association, as master servicer, and Bank of
America, National Association, as primary servicer. (Filed as Exhibit 99.3
to the Registrant's Current Report on Form 8-K filed on October 11, 2011
and incorporated by reference herein)
