SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(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, 2003
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
----- EXCHANGE ACT OF 1934
Commission File Number 0-23972
AMERICAN MORTGAGE ACCEPTANCE COMPANY
(Formerly American Mortgage Investors Trust)
-----------------------------------
(Exact name of registrant as specified in its charter)
Massachusetts 13-6972380
----------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
625 Madison Avenue, New York, New York 10022
------------------------------ --------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 421-5333
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act: Shares of
Beneficial Interest, par value $.10 per share
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 if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K 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. [X]
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Exchange Act Rule 12b-2). Yes X No
----- -----
The approximate aggregate market value of the voting and non-voting
common equity held by non-affiliates of the Registrant as of June 30, 2003 was
$142,280,303, based on a price of $17.36 per share, the closing sales price for
the Registrant's shares of beneficial interest or the American Stock Exchange on
that date.
As of May 7, 2004 there were 8,338,180 outstanding shares of the
Registrant's shares of beneficial interest.
Explanatory Note
We are filing this Amendment No. 1 to our Annual Report on Form 10-K for
the fiscal year ended December 31, 2003, as filed with the Securities and
Exchange Commission on March 15, 2004, solely to include the Part III
information, which was previously omitted.
PART III
Item 10. Trustees and Executive Officers
The trustees and executive officers of our Company are as follows:
Year First Became
Name Age Office Held Officer/Trustee Term Expires
--- --- ----------- --------------- ------------
Stuart J. Boesky 47 Chairman of the Board,
Chief Executive Officer and
President 1991 2004
Alan P. Hirmes 49 Managing Trustee
Chief Financial Officer and
Interim Chief Operating Officer 1991 2004
Scott M. Mannes 44 Managing Trustee (Independent) 2001 2004
Stanley Perla 60 Managing Trustee (Independent) 2004 2004
Richard Rosan 62 Managing Trustee (Independent) 2004 2004
Denise L. Kiley 44 Senior Vice President 1999 --
Marc D. Schnitzer 43 Senior Vice President 1999 --
STUART J. BOESKY is Chairman, the President and Chief Executive Officer of our
Company and is the President and Director of our Advisor. Mr. Boesky is also
the Chief Executive Officer of CharterMac, Chairman of PW Funding Inc. and
Managing Director of RCC, two of CharterMac's subsidiaries. Mr. Boesky is
responsible for our strategic planning and new business development. He
oversees all of CharterMac's and our Company's debt products, including
CharterMac's portfolio investing and mortgage banking operations, capital
markets, strategic planning and new product development. Mr. Boesky practiced
real estate and tax law with the law firm of Shipley & Rothstein from 1984-1986,
when he joined RCC. From 1983-1984, he practiced law with the Boston office of
Kaye, Fialkow, Richman and Rothstein. Previously, Mr. Boesky was a consultant
at the accounting firm of Laventhol & Horwath. Mr. Boesky graduated with high
honors from Michigan State University with a Bachelor of Arts degree and from
Wayne State School of Law with a Juris Doctor degree. He then received a Master
of Laws degree in Taxation from Boston University School of Law. Mr. Boesky is
a regular speaker at industry conferences and on television. Mr. Boesky is also
a member of the board of directors of the National Association of Affordable
Housing Lenders and the Investment Program Association.
ALAN P. HIRMES is a Managing Trustee, Chief Financial Officer and the interim
Chief Operating Officer of our Company and is the Senior Vice President of our
Advisor. Mr. Hirmes is also a Managing Trustee, Chief Financial Officer and the
Chief Operating Officer of CharterMac, the President of RCC and a Board member
of PW Funding. Mr. Hirmes is responsible for managing the overall administration
of CharterMac, RCC and the Company, as well as any new initiatives or special
projects. In addition, Mr. Hirmes oversees RCC's finance and accounting, human
resources, information technology and investor services departments and the
joint venture development program. Mr. Hirmes has been a Certified Public
Accountant in New York since 1978. Mr. Hirmes currently serves as
Chairman Emeritus of the Affordable Housing Tax Credit Coalition, a national
organization dealing with issues relating to the Tax Credit Program. He is also
a member of the Advisory Board of the Low Income Housing Tax Credit Monthly
Report and of the National Housing Conference, and he serves on the Executive
Board of the National Multi Housing Council. Prior to joining RCC in October
1983, Mr. Hirmes was employed by Weiner & Co., certified public accountants,
where he specialized in real estate and partnership taxation. Mr. Hirmes
graduated from Hofstra University with a Bachelor of Arts degree.
SCOTT M. MANNES is an Independent Trustee of our Company. Mr. Mannes is a
Managing Director of the Norseman Group, LLC, which is a credit focused
mezzanine lender to single tenant property owners. Prior to Norseman, Mr. Mannes
was a principal of Drawbridge Capital, LLC, a company providing consulting
services to specialty and consumer finance companies. Prior to Drawbridge, Mr.
Mannes was a key participant in the development and evolution of the investment
banking and merchant banking operations during his nine-year tenure at
ContiFinancial Corporation, most notably as Co-President of ContiFinancial
Services Corporation. Prior to joining ContiFinancial in 1990, Mr. Mannes spent
seven years with Financial Guaranty Insurance Company, developing the first
financial guaranties applied to sub-prime mortgage loan securitizations. Mr.
Mannes is a graduate of Statue University at Albany and received a Master of
Public Administration degree from the Rockefeller School of Public Affairs and
Policy at SUNY Albany. Mr. Mannes is a member of the audit committee, the
nominating and governance committee and the compensation committee
STANLEY PERLA is an Independent Trustee of our Company. Mr. Perla, a licensed
Certified Public Accountant, was with the firm of Ernst & Young LLP for 35
years, the last 25 of which he was a partner. His area of expertise for the past
40 years was real estate, and he was also responsible for the auditing of public
and private companies. Mr. Perla served as Ernst & Young's National Director of
Real Estate Accounting, as well as on Ernst & Young's National Accounting and
Auditing Committee. He is an active member of the National Association of Real
Estate Investment Trusts and the National Association of Real Estate Companies.
Mr. Perla also served on the real estate committees of the New York State
Society of Certified Public Accountants and the American Institute of Certified
Public Accountants. In addition, Mr. Perla has been a frequent speaker on real
estate accounting issues at numerous real estate conferences. He is currently on
the Board of Trustees and Chairman of the Audit Committee of Lexington Corporate
Properties Trust and is a Vice President and the Director of Internal Audit of
Vornado Realty Trust. Mr. Perla is the chairman of the audit committee and is a
member of the nominating and governance committee
RICHARD ROSAN is an Independent Trustee of our Company and is the President of
the Urban Land Institute ("ULI"), a post he has held since 1992. ULI, a globally
focused organization with an international membership of over 20,000 real estate
professionals, is considered the preeminent "think tank" in land use
development. In addition to the duties of leading ULI, Mr. Rosan is also the
President of the ULI Foundation, the philanthropic arm of the Urban Land
Institute. Mr. Rosan is an architect and Fellow of the American Institute of
Architects. Prior to his service at ULI, Mr. Rosan spent 22 years in New York
City in several capacities including 12 years with the City of New York, ending
as its Economic Development Director, six years as President of the Real Estate
Board of New York, and five years in the private development business working as
Project Director on several large New York City development projects. Mr. Rosan
holds a B.A. from Williams College and a Masters of Architecture from The School
of Architecture at the University of Pennsylvania. He completed Post Graduate
work in Urban Planning at the University of Cambridge, England. Mr. Rosan is a
member of both the audit and compensation committees
DENISE L. KILEY is a Senior Vice President of our Company. Ms. Kiley is a
Managing Trustee and the Chief Credit Officer of CharterMac, the Chief Operating
Officer of RCC and a member of the board of directors of PW Funding Inc. Ms.
Kiley is the Director of the Asset Management and Underwriting Divisions, where
she is responsible for overseeing the due diligence and asset management of all
multifamily residential properties invested in by CharterMac, our Company and
RCC. Prior to joining RCC in 1990, Ms. Kiley was a First Vice President with
Resources Funding Corporation, where she was responsible for acquiring,
financing, and asset managing multifamily residential properties. From 1981-1985
she was an auditor with Price Waterhouse. Ms. Kiley is a Member of the Advisory
Committee for the Joint Center for Housing at Harvard University; she is on the
Multifamily Leadership Board for the
National Association of Home Builders; and she is a member of the National
Housing & Rehabilitation Association. Ms. Kiley received a Bachelor of Science
degree in accounting from The Carroll School of Management at Boston College.
MARC D. SCHNITZER is a Senior Vice President of our Company. Mr. Schnitzer is a
Managing Trustee and President of CharterMac, the Chief Executive Officer of RCC
and a member of the board of directors of PW Funding Inc. Mr. Schnitzer directs
RCC's Tax Credit Group, which has invested in excess of $4.5 billion in
affordable housing tax credit properties since 1987. Mr. Schnitzer is also
responsible for structuring and marketing RCC's institutional tax credit
offerings. Mr. Schnitzer is a member of the executive committee of the board of
directors of the National Multi Housing Council and a Vice President and member
of the Executive Committee of the Affordable Housing Tax Credit Coalition. He
is a frequent speaker at industry conferences sponsored by the National Council
of State Housing Agencies and the National Housing and Rehabilitation
Association. Mr. Schnitzer joined RCC in 1988 after receiving a Master of
Business Administration degree from The Wharton School of The University of
Pennsylvania in December 1987. From 1983-1986, Mr. Schnitzer was a Financial
Analyst in the Fixed Income Research Department of The First Boston Corporation,
an international investment bank. Mr. Schnitzer received a Bachelor of Science
degree, summa cum laude, in Business Administration from the School of
Management at Boston University in 1983.
Other Officers of Our Company
Other officers of our Company are as follows:
JOHN J. SOREL, 43, is a Senior Vice President of our Company and is a Senior
Vice President of RCC. Mr. Sorel is responsible for overseeing construction
risk management and loan servicing for us. Prior to joining RCC in November
1999, Mr. Sorel was a Vice President for BankBoston in its real estate
department from 1993-1999, where he originated and managed over $150 million of
corporate and construction loan facilities for the low-income housing tax credit
industry. From 1991-1993, Mr. Sorel worked as an Assistant Vice President for
Recoll Management. Mr. Sorel holds a Bachelor of Arts degree in economics from
Syracuse University.
MARK J. SCHLACTER, 53, is a Vice President of our Company and is responsible for
our mortgage acquisition programs. Mr. Schlacter is also a Vice President of
RCC and has been with RCC since June 1989. Prior to joining RCC, Mr. Schlacter
garnered 16 years of direct real estate experience, covering retail and
residential construction, single and multifamily mortgage origination and
servicing, commercial mortgage origination and servicing, property acquisition
and financing, and mortgage lending program underwriting and development. He
was a Vice President with Bankers Trust Company from 1986 to June 1989, and held
prior positions with Citibank, Anchor Savings Bank and the Pyramid Companies
covering the 1972-1986 period. Mr. Schlacter holds a Bachelor of Arts degree in
political science from Pennsylvania State University.
GARY PARKINSON, 55, is the Controller of our Company. Mr. Parkinson is also an
Assistant Vice President of RCC. Mr. Parkinson has been a Certified Public
Accountant in New York since 1987. Prior to joining RCC in September 2000, Mr.
Parkinson was employed by American Real Estate Partners, L.P. from July 1991 to
September 2000, Integrated Resources, Inc. from August 1988 to July 1991 and
Ernst and Young from September 1984 to August 1988. Mr. Parkinson graduated
from Northeastern University and The Johnson Graduate School of Business at
Cornell University.
TERESA WICELINSKI, 38, is the Secretary of our Company. Ms. Wicelinski joined
RCC in June 1992, and prior to that date was employed by Friedman, Alpren &
Green, certified public accountants. Ms. Wicelinski graduated from Pace
University with a Bachelor of Arts Degree in accounting.
Code of Ethics
We have adopted a Code of Business Conduct and Ethics as defined under
the rules of the Securities and Exchange Commission, that applies to our
Trustees and Executive Officers, including our Chief Financial Officer, as well
as all employees of our Advisor in finance and finance-related departments.
We regularly monitor developments in the area of corporate governance and
continue to enhance our corporate governance structure based upon a review of
new developments and recommended best practices. Our corporate governance
materials, including our Corporate Governance Guidelines, Code of Business
Conduct and Ethics, Whistle Blower Policy and standing committee charters may be
found on our website at http://www.americanmortgageco.com in the "Investor
Relations" section. We will post amendments and waivers of these materials on
our website. Copies of these materials are also available to shareholders upon
written request to our secretary, American Mortgage Acceptance Company, 625
Madison Avenue, New York, New York 10022.
Committees of the Board of Trustees
Our board of trustees has standing audit, compensation and nominating and
governance committees. The functions of each committee are detailed in its
respective committee charter, which are available on our website at
http://www.americanmortgageco.com in the "Investor Relations" section. Please
note that the information on our website is not incorporated by reference in
this Form 10-K.
Audit Committee
The audit committee's duties include the periodic review of our financial
statements and meetings with our independent auditors. The audit committee must
have three members and be comprised solely of independent trustees. The audit
committee held four meetings during our fiscal year ended December 31, 2003 and
is currently comprised of Messrs. Mannes, Perla and Rosan, each of whom the
board of trustees has determined is independent within the meaning of SEC
regulations and the listing standards of the American Stock Exchange. In
addition, our board of trustees has determined that Mr. Perla is qualified as an
audit committee financial expert within the meaning of SEC regulations and the
listing standards of the American Stock Exchange.
Our Advisor
The officers of our Advisor provide services to our Company. All of the
voting shares of our Advisor are indirectly owned by CharterMac.
The directors and officers of our Advisor are set forth below.
Related AMI Associates, Inc.
Year First Became
Name Age Offices Held Officer/Director
---- --- ------------ -----------------
Stuart J. Boesky 47 Director and President 1991
Alan P. Hirmes 49 Senior Vice President 1991
Michael J. Brenner 58 Director 1999
Gary Parkinson 55 Treasurer 2000
Teresa Wicelinski 38 Secretary 1998
Biographical information with respect to Mr. Parkinson and Ms. Wicelinski is set
forth under "Other Officers of Our Company" above and with respect to Messrs.
Hirmes and Boesky is set forth under "Trustees and Executive Officers" above.
MICHAEL J. BRENNER is a Director of our Advisor, and is the Executive Vice
President and Chief Financial Officer of The Related Companies, LP ("TRCLP").
TRCLP owns a 15.5% economic interest in CharterMac. Prior to joining TRCLP in
1996, Mr. Brenner was a partner with Coopers & Lybrand, having served as
managing partner of its Industry Programs and Client Satisfaction initiatives
from 1993-1996, managing partner of the Detroit group of offices from 1986-1993
and Chairman of its National Real Estate Industry Group from 1984-1986. Mr.
Brenner graduated summa cum laude from the University of Detroit with a
Bachelors degree in Business Administration and from the University of Michigan
with a Masters of Business Administration, with distinction.
Compliance with Section 16(a) of the Securities Exchange Act of 1934
Section 16(a) of the Securities Exchange Act of 1934, as amended,
requires our executive officers and trustees, and persons who own more than ten
percent of a registered class of our equity securities, to file reports of
ownership and changes in ownership with the Commission. These persons are
required by regulation of the Commission to furnish us with copies of all
Section 16(a) forms they file.
During the fiscal year ended December 31, 2003, one of our executive
officers, Stuart J. Boesky, did not comply with all applicable Section 16(a)
filing requirements. Mr. Boesky purchased shares of our Company through a
partnership in which he is a 25% equity holder on July 18, 2003 and he did not
file the applicable Section 16(a) filing until July 25, 2003, which is longer
than the two business day requirement of the Securities and Exchange Commission
for filing Section 16(a) filings. Other than Mr. Boesky, the remaining
trustees, executive officers and greater than ten percent beneficial owners
complied with all applicable Section 16(a) filing requirements.
Item 11. Executive Compensation
Trustees and Management
We currently have four executive officers and five Trustees (three of
whom are Independent Trustees). We do not pay or accrue any fees, salaries or
other forms of compensation to our officers other than options which may be
received under the Share Option Plan. Independent Trustees receive compensation
for serving as Independent Trustees at the rate of $10,000 per year payable in
cash, in addition to an expense reimbursement for attending meetings of our
board of trustees.
Our Advisor, at its expense, provides all personnel necessary to conduct
our regular business. Our Advisor receives various fees and reimbursements for
advisory and other services performed under our Advisory Agreement, as further
described in the "Certain Relationships and Related Transactions - Advisory
Agreement" section of this Form 10-K. An affiliate of our Advisor pays all
salaries, bonuses and other compensation (other than options which may be
received under the Share Option Plan) to the officers of our Advisor (including
such officers who also serve as officers of our Company). Certain officers of
our Advisor and certain officers of our Company receive compensation from our
Advisor and its affiliates for services performed for various affiliated
entities, which may include services performed for us. Such compensation may be
based in part on our performance; however, our Advisor believes that any such
compensation attributable to services performed for us is immaterial.
Share Option Plan
We have adopted an Incentive Share Option Plan (the "Plan"), the purpose
of which is (i) to attract and retain qualified persons as trustees and officers
and (ii) to incentivize and more closely align the
financial interests of our Advisor and its employees and officers with the
interests of the holders of our common shares by providing our Advisor with a
substantial financial interest in our success. The compensation committee,
which is comprised of Messrs. Mannes and Rosan, administers the Plan. Pursuant
to the Plan, if our distributions per common share in the immediately preceding
calendar year exceed $1.45 per common share, the compensation committee has the
authority to issue options to purchase, in the aggregate, that number of common
shares which is equal to three percent of the common shares outstanding as of
December 31 of the immediately preceding calendar year, provided that the
compensation committee may only issue, in the aggregate, options to purchase a
maximum number of common shares over the life of the Plan equal to 383,863
common shares ( i.e., 10% of the common shares outstanding on December 31, 1999,
the end of the year in which our common shares commenced trading on the American
Stock Exchange).
Subject to the limitations described in the preceding paragraph, if the
compensation committee does not grant the maximum number of options in any year,
then the excess of the number of authorized options over the number of options
granted in such year will be added to the number of authorized options in the
next succeeding year and will be available for grant by the compensation
committee in such succeeding year.
All options granted by the compensation committee will have an exercise
price equal to or greater than the fair market value of the common shares on the
date of the grant. The maximum option term is ten years from the date of grant.
All common share options granted pursuant to the Plan may vest immediately upon
issuance or in accordance with the determination of the compensation committee.
No options were granted for the years ended December 31, 1999, December 31,
2000, and December 31, 2001. In 2002, we distributed $1.51 per common share.
Therefore, the compensation committee was authorized to issue options for the
year ended December 31, 2002. On April 11, 2003, the compensation committee
granted 190,000 options to 25 employees of RCC and to our Advisor. In 2003, we
distributed $1.60 per common share. Therefore, the compensation committee is
authorized to issue options for the year ended December 31, 2003. To date,
there have not been any options issued.
The following table sets forth information concerning the grant of share
options to AMAC's Trustees or executive officers:
Percentage
----------
of total
--------
options Potential realized value
-------- ------------------------
granted to Per at assumed annual rates
---------- ---- -----------------------
Options employees Share of stock appreciation at
-------- ---------- ------ ------------------------
Granted in fiscal exercise Expiration the end of 10 years (2)
----------- ---------- --------- ----------- -----------------------
Name Title (1) year price Date 5% 10%
---- ----- ---- ----- ---- -- ---
Stuart Rothstein CFO 52,000 27% $15.03 4/11/13 $ 491,519 $1,245,605
Related Capital Affiliate 30,000 16% $15.03 4/11/13 $ 283,569 $ 119,770
Company of Advisor
Others Various 108,000 57% $15.03 4/11/13 $1,020,846 $2,587,027
(24 people)
Total 190,000 100%
(1) Options become exercisable one-third on each of the first three
anniversaries of the date of grant.
(2) Assumed annual rates of share price appreciation, as determined by the
rules of the Commission, for illustrative purposes only. Actual share
prices will vary from time to time based upon market factors and the
Company's financial performance. No assurance can be given that such rates
will be achieved.
Report of the Compensation Committee
The compensation committee of our board of trustees is comprised of two
independent trustees (Messrs. Rosan and Mannes). The role of the compensation
committee is to administer the policies governing the Plan. Because we do not
pay salaries and bonuses to our officers or our Advisor, the compensation
committee does not determine executives' salary levels. Subject to the
restrictions contained in the Plan, option compensation is intended to be set at
a level competitive with the amounts paid to the management of similarly sized
companies in similar industries. The compensation committee also evaluates the
performance of management when determining the number of options to be issued.
Our grants of share options are structured to link the compensation of
our officers and the officers and employees of our Advisor with our performance.
Through the establishment of the Plan, we have aligned the financial interests
of our executives (and the executives and employees of our Advisor) with the
results of our performance, which is intended to enhance shareholder value. The
compensation committee may only grant options if certain performance levels are
met and is limited in the number of options which may be granted each year (See
"Share Option Plan" above). The amount of options which may be granted will be
set at levels that the compensation committee believes to be consistent with
others in our industry, with such compensation contingent upon our level of
annual and long-term performance.
Section 162(m) was added to the Internal Revenue Code as part of the
Omnibus Budget Reconciliation Act of 1993. Section 162(m) limits the deduction
for compensation paid to the Chief Executive Officer and the other executive
officers to the extent that compensation of a particular executive exceeds
$1,000,000 (less the amount of any "excess parachute payments" as defined in
Section 280G of the
Code) in any one year. However, under Section 162(m), the deduction limit does
not apply to certain "performance-based" compensation established by an
independent compensation committee which conforms to certain restrictive
conditions stated under the Code and related regulations. It is our goal to
have compensation paid to our executive officers qualify as performance-based
compensation deductible for federal income tax purposes under Section 162(m).
Given the fact that we are currently externally managed and the only
compensation that currently may be paid to our executive officers are options
pursuant to the Plan, it is unlikely that Section 162(m) will present any
concerns.
COMPENSATION COMMITTEE
Scott Mannes
Richard Rosan - Chairman
Stock Performance Graph
The following stock performance graph compares our performance to the S&P
500 and the NAREIT Mortgage REIT Index. The graph assumes a $100 investment on
July 1, 1999 (which is the month in which our common shares commenced trading on
the American Stock Exchange). All stock price performance figures include the
reinvestment of dividends.
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
Cumulative Total Return
7/1/99 12/99 12/00 12/01 12/02 12/03
------ ----- ----- ----- ----- -----
AMAC $ 100.00 $ 74.05 $ 78.78 $161.93 $175.36 $223.61
S & P 500 100.00 107.71 97.90 86.26 67.20 86.48
NAREIT MORTGAGE 100.00 58.84 68.23 121.00 158.60 249.61
Item 12. Security Ownership of Certain Beneficial Owners and Management
The following table provides information related to our Incentive Share
Option Plan as of December 31, 2003:
Equity Compensation Plan Information
(a) (b) (c)
----------------------- --------------------- -----------------------
Number of securities
remaining available for
future issuance under
Number of securities Weighted-average equity compensation
issued upon exercise exercise price of plans (excluding
of outstanding options, outstanding options, securities
warrants and rights warrants and rights reflected in column a)
----------------------- --------------------- -----------------------
Equity compensation plans approved
by security holders 0 $ 15.03 190,000
Equity compensation plans not
approved by security holders -- -- --
---------------------- --------------------- ---------------------
Totals 0 $ 15.03 190,000
---------------------- --------------------- ---------------------
As of April 16, 2004, no one was known by us to be the beneficial owner
of more than five percent of the outstanding common shares of our Company.
As of April 16, 2004, trustees and executive officers of our Company and
directors and executive officers of our Advisor own, directly or beneficially,
common shares as follows :
Amount and Nature of
Name Title Beneficial Ownership Percent of Class
---- ----- -------------------- ----------------
Stuart J. Boesky Chairman, President and 119,971 Common Shares(1)(2) 1.44%
CEO of our Company and Director
and President of our Advisor
Alan P. Hirmes Trustee, Chief Financial Officer 106,471 Common Shares(1) 1.28%
and Interim COO of our Company,
SVP of Advisor
Stanley Perla Trustee of our Company 0 Common Shares --
Richard Rosan Trustee of our Company 0 Common Shares --
Scott M. Mannes Trustee of our Company 0 Common Shares --
Denise L. Kiley Senior VP of our Company 94,471 Common Shares(1) 1.13%
Marc D. Schnitzer Senior VP of our Company 94,471 Common Shares(1) 1.13%
Michael J. Brenner Director of our Advisor 2,500 Common Shares *
All Executive Officers and trustees and directors of
our Company and our Advisor as a group (8 persons) 139,310 Common Shares(1) 1.69%
1 92,858 of these common shares are owned by RelCap Holdings, LLC, of which
Messrs. Hirmes, Boesky and Schnitzer and Ms. Kiley are equity owners.
2 4,000 of these common shares are owned by the Eastside Investment Partners, of
which Mr. Boesky is a 25% equity owner.
* Less than 1% of the common shares outstanding
Item 13. Certain Relationships And Related Transactions
We have and will continue to have certain relationships with our Advisor
and its affiliates. However, there have been no direct financial transactions
between us and our trustees and officers or the directors and officers of our
Advisor.
Advisory Agreement
Our Company and our Advisor entered into an Advisory Agreement pursuant
to which our Advisor is obligated to use its best efforts to seek out and
present to us, whether through its own efforts or those of third parties
retained by it, suitable and a sufficient number of investment opportunities
which are consistent with our investment policies and objectives and consistent
with investment programs our board of trustees may adopt from time to time in
conformity with our Declaration of Trust.
Although our board of trustees has continuing exclusive authority over
our management, the conduct of its affairs, and the management and disposition
of our assets, our board of trustees has delegated to our Advisor, subject to
the supervision and review of our board of trustees and consistent with the
provisions of our Declaration of Trust, the power and duty to: (i) obtain,
furnish and/or supervise the services necessary to perform any ministerial
functions in connection with the management of our day-to-day operations; (ii)
seek out and present to us, whether through its own efforts or those of third
parties retained by it, suitable and a sufficient number of investment
opportunities which are consistent with our investment objectives and policies
as adopted by our trustees from time to time; (iii) exercise absolute
discretion, subject to our trustees' review, in decisions to originate, acquire,
retain, sell or negotiate for the prepayment or restructuring of mortgages and
our other investments; (iv) recommend investment opportunities consistent with
our investment objectives and policies and negotiate on our behalf with respect
to potential investments or the disposition thereof; (v) upon request, cause an
affiliate to serve as the mortgagee of record for our mortgages if such
affiliate is qualified to do so and in that capacity to hold escrows on behalf
of mortgagors in connection with the servicing of mortgages, which it may
deposit with various banks including banks with which it may be affiliated; (vi)
obtain for us such other services as may be required in acquiring or disposing
of investments, disbursing and collecting our funds, paying our debts and
fulfilling our obligations, and handling, prosecuting and settling any of our
claims, including foreclosing and otherwise enforcing mortgages and other liens
securing investments; (vii) obtain for us such services as may be required for
property management, mortgage brokerage and servicing, and other activities
relating to our investment portfolio; (viii) evaluate, structure and negotiate
potential prepayments or sales of mortgages and other investments and, if
applicable, coordinate with government agencies and Fannie Mae and Freddie Mac
in connection therewith; (ix) monitor annual participating interest payments,
monitor operations and expenses of the developments, and verify computations of
annual Participating Interest payments; (x) from time to time, or as requested
by our board of trustees, make reports to us as to its performance of the
foregoing services; and (xi) do all things necessary to assure its ability to
render the services contemplated herein.
Our Advisory Agreement is renewable annually by us, subject to an
evaluation of the performance of our Advisor by our board of trustees. Our
Advisory Agreement may be terminated (i) without cause by our Advisor or (ii)
for Cause by a majority of the independent trustees, each without penalty, and
each upon 60 days' prior written notice to the non-terminating party.
Pursuant to the terms of our Advisory Agreement, our Advisor is entitled
to receive the fees and other compensation set forth below:
Fees/Compensation/Points* Amount
------------------------- ------
Asset Management Fee Equal to .625% on existing Original Mortgage
Investments; .355% on new Original Mortgage
Investments; .355% on investment grade
Additional Mortgage Investments; .750% on
non-investment grade Additional Mortgage
Investments; and 1.000% on unrated Additional
Mortgage Investments.**
Annual Incentive Fee Subject to (1) a minimum annual distributions
being made to Shareholders from CAD of $1.45
per Share and (2) our Company achieving at
least annual GAAP net income per share of
$1.60 (net of the Annual Incentive Fee), our
Advisor shall be entitled to receive
incentive compensation for each fiscal year
in an amount equal to the product of: (A) 25%
of the dollar amount by which (1) (a) Funds
From Operations of our Company (before the
Annual Incentive Fee) per Share (based on the
weighted average number of common shares
outstanding), plus (b) gains (or minus
losses) from debt restructuring and sales of
property per share (based on the weighted
average number of common shares outstanding),
exceed (2) an amount equal to the greater of:
(a) (i) the weighted average of (x) $20 (the
price per Share of the initial public
offering) and (y) the prices per Share of any
secondary offerings by our Company multiplied
by (ii) the Ten-Year U.S. Treasury Rate plus
2% per annum; and (b) $1.45 multiplied by (B)
the weighted average number of common shares
outstanding during such year.
Origination Points Advisor receives, with respect to each
mortgage investment originated by us, a
portion of the origination points paid by
borrowers equal to up to 1% of the principal
amount and we receive the portion of the
origination points paid by borrowers in
excess of 1% of the principal amount of such
mortgage investment.
Operating Expense
Reimbursement For direct expenses incurred by our Advisor.
_______________
* Our Advisor is also permitted to earn miscellaneous compensation, which may
include, without limitation, construction fees, escrow interest, property
management fees, leasing commissions and insurance brokerage fees. The payment
of any such compensation is generally limited to the competitive rate for the
services being performed.
** "Original Mortgage Investments" means investments authorized under our
original investment policy, which include originated Mortgages, acquired
Mortgages and additional loans (and within such terms are also included REMICS,
CMOs, GNMA, FHA and FHLMC Pass-Through Certificates). "Additional Mortgage
Investments" shall mean uninsured mortgage loans, construction loans, bridge
loans, mezzanine loans, mortgage derivatives, and commercial mortgage backed
securities ("CMBS") subordinated interests (including subordinated interests in
CMBS).
Incentive Share Options Our Advisor may receive options to acquire
to acquire additional common shares pursuant
to our Incentive Share Option Plan only if
our distributions in any year exceed $1.45
per common share and the compensation
committee of our board of trustees determines
to grant such options.
Our Advisor may engage in other business activities related to real
estate, mortgage investments or other investments whether similar or dissimilar
to ours, or act as Advisor to any other person or entity having investment
policies whether similar or dissimilar to ours. Before our Advisor, the
officers and directors of our Advisor and all persons controlled by our Advisor
and its officers and directors may take advantage of an opportunity for their
own account or present or recommend it to others, they are obligated to present
such investment opportunity to us if (i) such opportunity is of a character
which could be taken by us, (ii) such opportunity is compatible with our
investment objectives and policies and (iii) we have the financial resources to
take advantage of such opportunity.
The Declaration of Trust and Advisory Agreement provide that we will
indemnify our Advisor and its affiliates under certain circumstances.
Our Advisor is entitled to subcontract its obligations under our Advisory
Agreement to an affiliate. In accordance with the foregoing, our Advisor has
assigned its rights and obligations to RCC.
Pursuant to our Advisory Agreement, our Advisor is entitled to receive as
compensation a number of shares equal to 1% of all common shares issued by us.
In connection with a 1,955,000 common share offering we completed in April,
2003, our Advisor was issued 19,550 common shares. These shares were
subsequently distributed to RelCap Holdings, LLC.
Affiliated Transactions
In September 2003, we and our Advisor agreed to amend the Advisory
Agreement regarding the payment of an incentive management fee to the Advisor.
Under the terms of the amended agreement, there is no change to the calculation
of the incentive management fee. However, the incentive management fee is only
earned by the Advisor if the Company attains $1.60 in GAAP earnings per share
for the calendar year. Based on the amendment to the agreement and our 2003
earnings per share of $1.52, we did not pay the Advisor an incentive
management fee in 2003.
Also in September 2003, we entered into a letter of agreement with PW
Funding Inc. ("PWF"), a subsidiary of CharterMac, which is the parent of our
Advisor , under which we transferred and assigned all of our rights and
obligations to the two loans we originated under our Fannie Mae Virtual DUS
program to PWF. There was no payment made or received by us in connection with
this transfer. CharterMac has agreed to guarantee PWF's performance with regard
to this program, which in turn, allowed for the release of approximately $8.3
million in collateral pledged by us to secure our obligations under the loan
program. In turn, we indemnified PWF against any losses to Fannie Mae on the
loans and indemnified CharterMac against any obligation under its guaranty. The
maximum aggregate exposure to us under this agreement is approximately $7.5
million. However, we believe that we will not be called upon to fund any of
these guarantees and, accordingly, that the fair value of the guarantees is
insignificant.
In October 2003, we purchased nine taxable revenue bonds at a discount
(99% of par) from CharterMac in the amount of $7.6 million. The nine taxable
revenue bonds, each of which is secured by a first mortgage position, held by
CharterMac, on a multifamily property, carry a weighted average interest rate of
8.69%. The price paid was determined by an independent third party valuation of
the taxable revenue bonds. This transaction was approved by the independent
members of our Board of Trustees.
On October 15, 2003, we funded a bridge loan to Related Capital
Guaranteed Corporate Partners II, L.P. Series A, an affiliate of our Advisor, in
the approximate amount of $1.3 million. We received a fee of $10,000 for
funding the loan. The loan was repaid on October 31, 2003.
During 2003, the Advisor agreed to waive approximately $67,000 in asset
management fees relating to additional work the Advisor performed on certain
properties owned by us which were acquired as the result of us foreclosing on
troubled loans. As the Advisor was paid a fee at the time the loans were
originated, the Advisor agreed to waive certain additional fees to which it was
entitled.
In December 2003, we borrowed approximately $11.3 million from CharterMac
in order to aid in the purchase of the Concord at Gulfgate first mortgage in the
total amount of $14.1 million. CharterMac charged us interest at an annual rate
of 3.17% on the borrowings, which was based on LIBOR plus 2%, which is the same
rate paid by us on our Fleet Warehouse Facility. Shortly thereafter, we
received a loan from Fleet on the warehouse facility in the amount of $14
million, the proceeds of which were used to repay the loan to CharterMac.
Item 14. Principal Accounting Fees and Services
Deloitte & Touche LLP have been and are presently our independent
auditors.
The following table presents fees for professional audit services
rendered by Deloitte & Touche LLP, the member firms of Deloitte Touche Tohmatsu,
and their respective affiliates (collectively, "Deloitte & Touche") for the
audit of our financial statements for the fiscal years ended December 31, 2003
and December 31, 2002, and fees for other services rendered by Deloitte & Touche
during those periods.
-------------------------------------------------------------------------------
| | 2003 | 2002 |
|-----------------------------------------------------------------------------|
|Audit Fees (a) | $196,500 | $221,000 |
|-----------------------------------------------------------------------------|
|Audit-Related Fees (b) | - | - |
|-----------------------------------------------------------------------------|
|Tax Fees (c) | 42,000 | 35,500 |
|-----------------------------------------------------------------------------|
|All Other Fees (d) | - | - |
|-----------------------------------------------------------------------------|
| Total | $238,500 | $256,500 |
-------------------------------------------------------------------------------
(a) Fees for audit services billed in 2003 and 2002 consisted of the audit of
the Company's annual financial statements, reviews of the Company's
quarterly financial statements, comfort letters, consents and other
services related to Securities and Exchange Commission matters.
(b) No audit-related services were rendered by Deloitte & Touche in 2003 or
2002.
(c) Fees for tax services billed in 2003 and 2002 consisted of tax compliance
services. Tax compliance services are services rendered based upon facts
already in existence or transactions that have already occurred to
document, compute, and obtain government approval for amounts to be
included in tax filings and consisted of Federal, state and local income
tax return assistance and REIT compliance testing.
(d) No other services were rendered by Deloitte & Touche during 2003 or 2002.
All audit-related services, tax services and other services were
pre-approved by the audit committee, which concluded that the provision of those
services by Deloitte & Touche was compatible with the maintenance of Deloitte &
Touche's independence in the conduct of its auditing functions.
Policy on Pre-Approval of Independent Auditor Services
The audit committee is responsible for appointing, setting compensation
and overseeing the work of the independent auditors. The audit committee has
established a policy regarding pre-approval of all audit and non-audit services
provided by our Company's independent auditors.
On an on-going basis, management communicates specific projects and
categories of service for which the advance approval of the audit committee is
requested. The audit committee reviews these requests and advises management if
the audit committee approves the engagement of the independent auditors. The
audit committee may also delegate the ability to pre-approve audit and permitted
non-audit services to one or more of its members, provided that any
pre-approvals are reported to the audit committee at its next regularly
scheduled meeting.
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.
AMERICAN MORTGAGE ACCEPTANCE COMPANY
(Registrant)
Date: May 7, 2004 By: /s/ Stuart J. Boesky
--------------------
Stuart J. Boesky
Trustee, Chairman of the Board,
President and Chief Executive Officer
Date: May 7, 2004 By: /s/ Alan P. Hirmes
-----------------------
Alan P. Hirmes
Trustee and Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
this report has been signed by the following persons on behalf of the registrant
and in the capacities and on the dates indicated:
Signature Title Date
---------------------- -------------------------------------- --------------
*
--------------------
Stanley R. Perla Trustee May 7, 2004
*
--------------------
Richard M. Rosan Trustee May 7, 2004
*
------------------ Chief Financial Officer
Alan P. Hirmes Trustee May 7, 2004
*
-------------------
Scott M. Mannes Trustee May 7, 2004
* /s/ Stuart J. Boesky
-------------------- Trustee, Chairman of the Board,
Stuart J. Boesky President and Chief Executive Officer May 7, 2004
Attorney-in-fact
Exhibit Index
-------------
31.1 Chief Executive Officer certification pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
31.2 Chief Financial Officer certification pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
32.1 Certification pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
32.2 Certification pursuant to Section 906 of the Sarbanes-Oxley Act of 2002