Registration Statement No. 333-
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As filed with the Securities and Exchange Commission on May 2, 2002
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERICAN MORTGAGE ACCEPTANCE COMPANY
(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 Number)
625 Madison Avenue
New York, New York 10022
(212) 421-5333
(Address, Including Zip Code and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
Stuart J. Boesky
President and Chief Executive Officer
625 Madison Avenue
New York, New York 10022
(212) 421-5333
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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copy to:
Mark Schonberger, Esq.
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, New York 10022
(212) 318-6000
Approximate date of commencement of proposed sale to public: From time
to time after the effective date of this Registration Statement, as determined
by market conditions and other factors.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Title of each class Amount Proposed Maximum Proposed Maximum
of securities to be to be Offering Price per Aggregate Offering Amount of Registration
Registered Registered Unit Price (3) Fee
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Common Shares of Beneficial Interest (1)
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Preferred Shares of Beneficial Interest (1) N/A N/A (2) $200,000,000 $18,400
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1. Such indeterminate number of common shares and preferred shares
(including common shares which may be issued upon conversion) of the
registrant as may from time to time be issued at indeterminate prices.
2. Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act.
3. Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(o) under the Securities Act of 1933, and based
upon the maximum aggregate offering price of all securities being
registered.
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The information contained in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where such offer or sale is not permitted.
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Preliminary Prospectus Dated May 2, 2002
Subject to Completion
$200,000,000
AMERICAN MORTGAGE ACCEPTANCE COMPANY
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Common Shares of Beneficial Interest and
Preferred Shares of Beneficial Interest
We are American Mortgage Acceptance Company, a business trust formed
under the laws of the Commonwealth of Massachusetts. This prospectus relates to
the public offer and sale of our common and preferred shares of beneficial
interest which we may offer from time to time in one or more series, with an
aggregate public offering price of up to $200,000,000. Our shares may be
offered, separately or together, in separate series and in amounts, at prices
and on terms to be determined at the time of the offering of our shares.
The specific terms of our shares in respect of which this prospectus is
being delivered will be set forth in one or more supplements to this prospectus
and will include, in the case of preferred shares, the number of preferred
shares, the specific title and stated value, any distribution, liquidation,
redemption, conversion, voting and other rights, and any public offering price,
and in the case of common shares, the number of common shares and the terms of
the offering and sale. The supplement to this prospectus will also contain
information, where appropriate, about the risk factors and federal income tax
considerations relating to, and any listing on a securities exchange of, our
shares.
Our shares may be offered directly, through agents designated from time
to time by us, or to or through underwriters or dealers. If any agents or
underwriters are involved in the sale of any of our shares, their names, and any
applicable purchase price, fee, commission or discount arrangement between or
among them, will be set forth, or will be calculable from the information set
forth in the applicable supplement to this prospectus. See "Plan of
Distribution". No shares may be sold without delivery of the applicable
supplement to this prospectus describing the method of distribution and terms of
such shares.
Our common shares are traded on the American Stock Exchange under the
symbol "AMC".
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
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The date of this prospectus is _____, 2002
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TABLE OF CONTENTS
Page
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OUR COMPANY...................................................................1
DESCRIPTION OF OUR SHARES.....................................................2
USE OF PROCEEDS..............................................................12
PLAN OF DISTRIBUTION.........................................................12
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERENCE
DIVIDENDS..............................................................13
EXPERTS......................................................................13
LEGAL MATTERS................................................................14
WHERE YOU CAN FIND MORE INFORMATION..........................................14
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE..............................14
FORWARD-LOOKING INFORMATION
Certain information both included and incorporated by reference in this
prospectus may contain forward-looking statements within the meaning of Section
27A of the Securities Act of 1933 and Section 21E of the Securities and Exchange
Act of 1934 and as such may involve known and unknown risks, uncertainties and
other factors which may cause our actual results, performance or achievements to
be materially different from future results, performance or achievements
expressed or implied by such forward-looking statements. Forward-looking
statements, which are based on certain assumptions and describe our future
plans, strategies and expectations are generally identifiable by use of the
words "may," "will," "should," "expect," "anticipate," "estimate," "believe,"
"intend" or "project" or the negative thereof or other variations thereon or
comparable terminology. Factors which could have a material adverse effect on
the operations and future prospects of our Company include, but are not limited
to those set forth under the heading "Risk Factors" in any supplement to this
prospectus. These risks and uncertainties should be considered in evaluating any
forward-looking statements contained or incorporated by reference herein.
Throughout this prospectus, the terms "Company," "we," "our" and "us,"
are all used in reference to American Mortgage Acceptance Company and our
subsidiaries, except as the context otherwise requires. Additionally, the term
"shares" is used in reference to our common and preferred shares of beneficial
interest to which this prospectus, and any supplement thereto relates.
OUR COMPANY
We are American Mortgage Acceptance Company, a business trust formed in
June 1991 under the laws of the Commonwealth of Massachusetts. We have elected
to be treated as a real estate investment trust ("REIT") under the Internal
Revenue Code (the "Code"). From formation until April 1999, we were a
closed-end, finite-life REIT not permitted to finance or invest beyond the
proceeds raised in our initial public offering. In April 1999, we reorganized
the Company into an open-ended, infinite life REIT authorized to issue debt and
equity securities and make a broader range of investments. Also in April 1999,
we changed our name from American Mortgage Investors Trust to American Mortgage
Acceptance Company. Our shares of beneficial interest began trading on the
American Stock Exchange on July 1, 1999 under the symbol "AMC".
We are a REIT that seeks asset diversification, capital appreciation
and income for distributions to our shareholders primarily through the
acquisition and origination of both government insured and uninsured mortgages
secured by multifamily properties. These investments may take the form of
government insured first mortgages and uninsured mezzanine loans, construction
loans and bridge loans. We have also indirectly invested in subordinate
commercial mortgage-backed securities and may invest in other real estate
assets.
We finance the acquisition of our assets primarily through borrowing at
short term rates using demand repurchase agreements. Under our declaration of
trust, we may incur permanent indebtedness of up to 50% of our total market
value calculated at the time the debt is incurred. Permanent indebtedness and
working capital indebtedness may not exceed 100% of our total market value. Our
declaration of trust provides that we may not change our policy regarding
indebtedness without the consent of a majority in interest of our shareholders.
We have engaged Related AMI Associates, Inc., which we refer to as our
"Advisor," to manage our day-to-day affairs. Our Advisor has subcontracted its
management obligations to its affiliate, Related Capital Company, the nation's
largest non-agency financier of affordable multifamily housing. The management
team responsible for our day-to-day affairs has an average of 12 years of
experience with Related Capital and an average of 20 years experience in the
real estate industry.
We have elected to be treated as a REIT for federal income tax
purposes. This treatment permits us to deduct dividend distributions to our
shareholders for federal income tax purposes, thus effectively eliminating the
"double taxation" that generally results when a corporation earns income and
distributes that income to its shareholders by way of dividends. In order to
maintain our status as a REIT, we must comply with a number of requirements
under federal income tax law. See "Risk Factors" and "Certain Federal Income Tax
Considerations" in the supplement relating to this prospectus.
We are not registered under the Investment Company Act of 1940, as
amended (the "Investment Company Act") and believe that we are not required to
so register. If we were required to become registered, we would not be able to
conduct our activities as we currently conduct them. We at all times intend to
conduct our activities so as not to become regulated as an investment company
under the Investment Company Act. Additional information regarding this risks
associated with the failure to qualify for an exemption may be found in the
applicable supplement to this prospectus.
In considering whether to purchase our shares, you should also
carefully consider the matters discussed under "Risk Factors" in the supplement
relating to this prospectus.
Our principal executive offices are located at 625 Madison Avenue, New
York, New York 10022. Our phone number is (212) 421-5333.
DESCRIPTION OF OUR SHARES
The following description of our shares does not purport to be complete
and is qualified in its entirety by reference to applicable Massachusetts law,
and to provisions of our declaration of trust, as amended and restated, copies
of which are exhibits to the registration statement of which this prospectus is
a part. See "Where you can find more information."
Overview
This prospectus relates to the offer and sale from time to time of
common shares and/or preferred shares, which may be issued in one or more
series, with an aggregate public offering price of up to $200,000,000, in
amounts, at prices and on terms to be determined at the time of the offering.
Our authorized capital consists of 25,000,000 shares of beneficial
interest, par value $0.10 per share. All of our authorized and issued capital is
designated as common shares. We have not designated any of our shares of
beneficial interest as preferred shares. As of April 30, 2002, we had 6,363,630
outstanding common shares. In addition, we have reserved 383,863 common shares
for issuance under our Incentive Share Option Plan. We may sell and issue as
many shares of beneficial interest as the trustees determine in their sole
discretion. A majority of the trustees, including a majority of the independent
trustees, are authorized to determine from time to time the number of authorized
shares that will be sold and issued. The Board of Trustees may classify any
unissued shares in one or more classes or series of beneficial interests.
Subject to the American Stock Exchange rules which require shareholder
approval for certain issuances of securities, we may issue shares from time to
time in one or more series, generally without shareholder approval, with such
preferences, conversion and other rights, voting powers, restrictions,
limitations as to distributions, qualifications and terms and conditions of
redemption as are permitted by Massachusetts law and as established by our Board
of Trustees.
The following description sets forth certain general terms and
provisions of our shares to which a supplement to this prospectus may relate.
The particular terms of the shares being offered and the extent to which such
general provisions may apply will be described in the
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applicable supplement to this prospectus relating to such shares. If so
indicated in the applicable supplement to this prospectus, the terms of any
series of shares may differ from the terms set forth below, except those terms
required by our declaration of trust. The statements below describing our shares
are subject to and qualified by reference to the applicable provisions of our
declaration of trust.
General Description of our Common Shares
General. Unless otherwise provided for in the applicable supplement to
this prospectus, our common shares have equal voting, dividend, distribution,
liquidation, redemption and other rights and have one vote per share on all
matters submitted to a vote of the shareholders. Common shares will be validly
issued, fully paid and non-assessable by us or on our behalf upon receipt of
full consideration for which they have been issued or without additional
consideration if issued by way of share dividend, share split, or upon the
conversion of convertible debt, and will not be subject to redemption by us
(except in the case of a redemption to prevent a violation of the concentration
of ownership provisions of the Code applicable to REITs). Unless otherwise
permitted by the Board of Trustees, the common shares do not entitle the
shareholders to preference, preemptive, appraisal, conversion or exchange rights
of any kind.
Distributions. Except as otherwise provided, our common shareholders
are entitled to receive distributions, when and as authorized by our Board of
Trustees, out of legally available funds. Distributions will be made at such
rates and on such dates as will be set forth in the applicable supplement to
this prospectus.
Voting Rights. Except as otherwise provided, all common shares shall
have equal voting rights. Shareholders do not have cumulative voting rights.
Excess Shares are not entitled to any voting rights and are not considered
outstanding for the purpose of determining a quorum.
Registrar and Transfer Agent. The registrar and transfer agent for our
common shares will be set forth in the applicable supplement to this prospectus.
General Description of our Preferred Shares
General. Subject to limitations prescribed by Massachusetts law and our
declaration of trust, our Board of Trustees is authorized to fix the number of
shares constituting each series of preferred shares and the designations and
terms, preferences, and relative, participating, optional or other special
rights and qualifications, limitations or restrictions thereof, including such
provisions as may be desired concerning voting, redemption, distributions,
dissolution or the distribution of assets, conversion or exchange, and such
other subjects or matters as may be fixed by resolution of our Board of Trustees
or a duly authorized committee thereof. The preferred shares will, when issued,
be fully paid and non assessable and, if so provided in a supplement to this
prospectus, will have no preemptive rights.
As of the date of this prospectus, we have not designated any of our
shares of beneficial interest as preferred shares. The Board of Trustees may
classify any unissued preferred shares of beneficial interest and reclassify any
previously classified but unissued preferred shares of any series from time to
time, in one or more series of shares. Reference is made to any supplement to
this prospectus relating to the preferred shares offered thereby for specific
items, including:
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o The title and stated value of such preferred shares;
o The number of shares of such preferred shares offered, the
liquidation preference per share and the offering price of
such preferred shares;
o The distribution rate(s), period(s), and/or payment date(s) or
method(s) of calculation thereof applicable to such preferred
shares;
o The date from which distributions on such preferred shares
shall accumulate, if applicable;
o The procedures for any auction and remarketing, if any, for
such preferred shares;
o The provisions for a sinking fund, if any, for such preferred
shares;
o The provision for redemption, if applicable, of such preferred
shares;
o Any listing of such preferred shares on any securities
exchange;
o The terms and conditions, if applicable, upon which such
preferred shares will be convertible into common shares,
including the conversion price (or manner of calculation
thereof);
o A discussion of federal income tax considerations applicable
to such preferred shares;
o The relative ranking and preferences of such preferred shares
as to distribution rights (including whether any liquidation
preference as to the preferred shares will be treated as a
liability for purposes of determining the availability of
assets for distributions to holders of shares ranking junior
to the preferred shares as to distribution rights) and rights
upon our liquidation or winding up of our affairs;
o Any limitations on issuance of any series of preferred shares
ranking senior to or on a parity with such series of preferred
shares as to distribution rights and rights upon the
liquidation, dissolution or winding up of our affairs; and
o Any other specific terms, preferences, rights, limitations or
restrictions of such preferred shares.
Rank. Unless otherwise indicated in the applicable supplement to this
prospectus, our preferred shares rank, with respect to payment of distributions
and rights upon our liquidation, dissolution or winding up, and allocation of
our earnings and losses:
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o senior to all classes or series of common shares, and to all
equity securities ranking junior to such preferred shares;
o on a parity with all equity securities issued by us, the terms
of which specifically provide that such equity securities rank
on a parity with the preferred shares; and
o junior to all equity securities issued by us, the terms of
which specifically provide that such equity securities rank
senior to the preferred shares.
Distributions. Subject to any preferential rights of any outstanding
shares or series of shares, our preferred shareholders are entitled to receive
distributions, when and as authorized by our Board of Trustees, out of legally
available funds, and share pro rata based on the number of preferred shares and
other parity equity securities outstanding. Distributions will be made at such
rates and on such dates as will be set forth in the applicable supplement to
this prospectus.
Voting Rights. Unless otherwise indicated in the applicable supplement
to this prospectus, holders of our preferred shares will not have any voting
rights.
Liquidation Preference. Upon the voluntary or involuntary liquidation,
dissolution or winding up of our affairs, then, before any distribution or
payment shall be made to the holders of any common shares or any other class or
series of shares ranking junior to the preferred shares in our distribution of
assets upon any liquidation, dissolution or winding up, the holders of each
series of preferred shares are entitled to receive, after payment or provision
for payment of our debts and other liabilities, out of our assets legally
available for distribution to shareholders, liquidating distributions in the
amount of the liquidation preference per share (set forth in the applicable
supplement to this prospectus), plus an amount, if applicable, equal to all
distributions accrued and unpaid thereon (which shall not include any
accumulation in respect of unpaid distributions for prior distribution periods
if such preferred shares do not have a cumulative distribution). After payment
of the full amount of the liquidating distributions to which they are entitled,
the holders of preferred shares will have no right or claim to any of our
remaining assets. In the event that, upon any such of our voluntary or
involuntary liquidation, dissolution or winding up, the legally available assets
are insufficient to pay the amount of the liquidating distributions on all of
our outstanding preferred shares and the corresponding amounts payable on all of
our shares of other classes or series of equity security ranking on a parity
with the preferred shares in the distribution of assets upon liquidation,
dissolution or winding up, then the holders of our preferred shares and all
other such classes or series of equity security shall share ratably in any such
distribution of assets in proportion to the full liquidating distributions to
which they would otherwise be respectively entitled.
If the liquidating distributions are made in full to all holders of
preferred shares, our remaining assets shall be distributed among the holders of
any other classes or series of equity security ranking junior to the preferred
shares upon our liquidation, dissolution or winding up, according to their
respective rights and preferences and in each case according to their respective
number of shares.
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Conversion Rights. The terms and conditions, if any, upon which shares
of any series of preferred shares are convertible into common shares will be set
forth in the applicable supplement to this prospectus. Such terms will include
the number of common shares into which the preferred shares are convertible, the
conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the holders of the
preferred shares or us, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the redemption of such
preferred shares.
Redemption. If so provided in the applicable supplement to this
prospectus, our preferred shares will be subject to mandatory redemption or
redemption at our option, in whole or in part, in each case upon the terms, at
the times and at the redemption prices set forth in the such supplement to this
prospectus.
Registrar and Transfer Agent. The registrar and transfer agent for our
preferred shares will be set forth in the applicable supplement to this
prospectus.
Restrictions on Transfer
In order for us to qualify as a REIT, our shares must be beneficially
owned by 100 or more persons for at least 335 days of a taxable year of 12
months or during a proportionate part of a shorter taxable year. Also, not more
than 50% of the number or value of the outstanding shares may be owned, directly
or indirectly, by five or fewer individuals (as defined in the Internal Revenue
Code of 1986, as amended, to include certain exempt entities) during the last
half of a taxable year or during a proportionate part of a shorter taxable year
(other than during its first taxable year). In order to prevent five or fewer
individuals from acquiring more than 50% of our outstanding shares, and a
resulting failure to qualify as a REIT, we intend to limit the ownership and
transfer of shares in order to comply with such limitations.
Certain transfers or purchases may be prohibited by the Board of
Trustees to ensure our continued qualification as a REIT under the Code. The
Board of Trustees may require each proposed transferee of shares to deliver a
statement or affidavit setting forth the number of shares, if any, already
owned, directly or indirectly, by such transferee and may refuse to permit any
transfer of shares which would cause an accumulation of shares that would
jeopardize our status as a REIT.
Our declaration of trust provides that the Board of Trustees may redeem
shares in order to maintain our REIT status. The redemption price is determined
in good faith by our independent trustees.
Our declaration of trust provides that, subject to certain exceptions,
if at any time, a person becomes an owner of, or is deemed to own by virtue of
the attribution provisions of the Code, more than 9.8% of the outstanding
shares, then the shares most recently acquired by such person which are in
excess of the 9.8% limit (the "Excess Shares") will have the following
characteristics:
o not have any voting rights;
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o not be deemed outstanding for the purpose of determining a
quorum at the annual meeting or any special meeting of
shareholders or for determining the number of outstanding
shares for purposes of determining a "majority of the
outstanding shares" in connection with a shareholders' vote
without a meeting;
o any dividends or distributions with respect to the Excess
Shares will be held by us in a savings account for the benefit
of the holders of such Excess Shares until such time as the
Excess Shares cease to be Excess Shares; and
o Excess Shares shall be deemed to have been offered for sale to
us or our designee for a period of 120 days from the date of
(i) the transfer that created the Excess Shares, if we had
actual knowledge of the transfer or (ii) if we do not have
actual knowledge of the transfer, the determination by the
trustees in good faith that a transfer creating Excess Shares
has taken place. The price for such Excess Shares shall be
their fair market value as of the date of either (i) or (ii)
above.
After we give notice of our intention to purchase the Excess Shares
such shares shall have no further rights beyond the right of the shareholder to
receive payment for them.
Any person who acquires Excess Shares is obliged to immediately give
written notice to us and provide us with any information we may request in order
to determine the effect of the acquisition on our status as a REIT.
Restrictions on Certain Conversion Transactions
Our declaration of trust requires that 80% in interest of the
shareholders and all the independent trustees approve "conversion transactions,"
which are exchange offers, mergers, consolidations or similar transactions
involving us in which the shareholders receive securities in a surviving entity
having a substantially longer duration or materially different investment
objectives and policies, or that is anticipated to provide significantly greater
compensation to management, except for any such transaction affected because of
changes in applicable law, or to preserve tax advantages for a majority in
interest of the shareholders. It should be noted that standards such as
"substantially longer duration," "materially different investment objectives and
policies" or "provides significantly greater compensation to management" are not
defined and are by their nature potentially ambiguous. Any ambiguities will be
resolved by the Board of Trustees (a majority of whom are independent trustees).
Certain Provisions of our Declaration of Trust
Our organizational document, our declaration of trust, binds each
trustee and each shareholder. Each shareholder is deemed to have agreed to the
terms of our declaration of trust by electing to become a shareholder.
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Shareholder Meetings
An annual meeting of shareholders will be held not less than 30 days
after delivery of the annual report, but in no event later than June 30 of each
year. Special meetings may be called by the Chairman of the Board, by the
President, by a majority of the trustees or by a majority of the independent
trustees, or by shareholders holding, in the aggregate, not less than 10% of the
outstanding common shares. At any meeting of shareholders, each shareholder is
entitled to one vote for each common share owned of record (other than Excess
Shares) on the applicable record date. In general, the presence in person or by
proxy of a majority of the outstanding common shares shall constitute a quorum,
and a majority vote of the shareholders will be binding on all our shareholders.
Shareholder Voting
All elections for trustees are decided by a plurality vote at a meeting
or without a meeting provided that at least a majority of the outstanding shares
cast a vote in such election. Unless otherwise provided by our declaration of
trust, all other questions are decided by a majority of the votes cast at a
meeting at which a quorum is present or a majority of outstanding shares cast,
without a meeting.
Each shareholder entitled to vote may do so (i) at a meeting, in
person, by written proxy or by a signed writing or consent directing the manner
in which the shareholder desires that the shareholder's vote be cast (which must
be received by the trustees prior to such meeting) or (ii) without a meeting, by
a signed writing or consent directing the manner in which the shareholder
desires that the shareholder's vote be cast (which must be received by the
trustees prior to the date the votes of the shareholders are to be counted).
Shareholder Lists
An alphabetical list of names, record addresses and business telephone
numbers of all shareholders with the number of shares held by each, is
maintained as part of our books and records at our principal office. Such list
is updated at least quarterly, and is open for inspection by a shareholder or
the shareholder's designated agent upon such shareholder's request. Such list
will be mailed to any shareholder requesting the list within 10 days of the
request. We may require the shareholder requesting such shareholder's list to
represent that the list is not requested for a commercial purpose unrelated to
the shareholder's interest in us.
Inspection of Books and Records
Any shareholder and any designated representative thereof is permitted
access to all of our records at all reasonable times, and may inspect and copy
any of them. In addition, our books and records are open for inspection by state
securities administrators upon reasonable notice and during normal business
hours at our principal place of business.
Trustees
A majority of the trustees must at all times be independent trustees.
Independent trustees are trustees who are not affiliated with the Advisor, not
serving as a director or trustee for more
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than three other REITs organized by our sponsor and not performing other
services for us except as trustees. Our declaration of trust requires that we
have not less than three nor more than nine trustees as fixed from time to time
by the Board of Trustees. On June 12, 2001, the Board of Trustees fixed the
number of trustees at five.
A trustee may be removed by a majority of the other trustees only for
cause. A trustee may be removed, with or without cause, by vote of the majority
of the outstanding shares entitled to vote. Any vacancy, except a vacancy
created by the removal of a trustee by the shareholders, may be filled by a
majority of the remaining trustees, except that independent trustees must
nominate replacements for vacancies in independent trustee positions. Vacancies
caused as a result of the removal of a trustee by the shareholders must be
filled by the shareholders. Each trustee serves a term of one year.
No bond is required to secure the performance of a trustee unless the
Board of Trustees so provide or as required by law. The trustees are empowered
to fix the compensation of all officers whom they select. The independent
trustees will be paid $10,000 per year. Non-independent trustees will not be
compensated by us.
None of the Advisor, the trustees nor their affiliates may vote any
shares held by them on matters submitted to the shareholders regarding the
removal of or on any transaction between us and the Advisor, the trustees or
their affiliates. Shares held by the Advisor, the trustees and their affiliates
may not be included in determining the number of outstanding shares entitled to
vote on these matters, nor in the shares actually voted thereon.
Amendment of the Declaration of Trust
Our declaration of trust may be amended by the vote of the holders of a
majority of the outstanding common shares and a majority of the trustees,
including a majority of the independent trustees, except that the amendment of
the provision contained in our declaration of trust regarding supermajority
shareholder approval of certain roll-up or conversion transactions requires the
vote of the holders of 80% of the outstanding shares. Notwithstanding the
foregoing, a majority of the trustees, including a majority of the independent
trustees, are authorized to amend our declaration of trust without the consent
of shareholders (i) to the minimum extent necessary, based on an opinion of
counsel, to comply with the provisions of the Code applicable to REITs, the
regulations thereunder, and any ruling on or interpretation of the Code or the
regulations thereunder (ii) to delete or add any provision required to be
deleted or added by the Securities and Exchange Commission or a state "blue sky"
commissioner, which addition or deletion is deemed by such official to be for
the benefit or protection of shareholders or (iii) to clarify any ambiguities or
correct any inconsistencies.
Responsibility of Trustees
The Board of Trustees is responsible for our general policies and for
such general supervision and management of our business as may be necessary to
insure that such business conforms to the provisions of our declaration of
trust.
The trustees are accountable to the shareholders as fiduciaries and are
required to perform their duties in good faith and in a manner each trustee
believes to be in our best interest and our
9
shareholders, with such care, including reasonable inquiry, as a prudent person
in a like position would use under similar circumstances.
Our declaration of trust provides that the trustees shall have full,
absolute and exclusive power, control, management and authority over our assets
and over our business and affairs to the same extent as if the trustees were the
sole owners thereof in their own right. The trustees have the power to enter
into commitments to make any investment, purchase or acquisition or to exercise
any power authorized by our declaration of trust, including the power to retain
an advisor and to delegate any of the trustees' powers and duties to an advisor.
The trustees have the responsibility to establish written policies on
investments and borrowings and shall monitor our and the Advisor's
administrative procedures, investment operations and performance to assure that
such policies are carried out. A majority in interest of the shareholders must
approve any change in our investment objectives.
Indemnification
We agreed to indemnify and hold harmless our trustees, our Advisor and
their affiliates who are performing services on our behalf ("Indemnified
Parties") against expense or liability, including attorneys' fees and
disbursements, in any action arising out of any act performed or omitted to be
performed by them in connection with our operation or business; provided, that,
(i) our trustee or the Advisor has determined, in good faith, that the course of
conduct which caused the loss or liability was in our best interests (ii) such
liability or loss was not the result of negligence or misconduct on the part of
the Indemnified Party and (iii) such indemnification or agreement to hold
harmless is recoverable only out of our assets and not from the shareholders. In
addition, our declaration of trust contains provisions limiting the personal
liability of our trustees, officers and shareholders.
We do not indemnify the Indemnified Parties for any liability imposed
by a judgment, and costs associated with a judgment, including attorneys' fees,
arising from or out of a violation of state or federal securities laws. However,
we may indemnify the Indemnified Parties for settlements and related expenses of
lawsuits alleging securities laws violations and for expenses incurred in
successfully defending such lawsuits, but only if: (a) a court either (i)
approves the settlement and finds that indemnification of the settlement and
related costs should be made or (ii) approves indemnification of litigation
costs if there has been a successful defense or (b) there has been a dismissal
on the merits with prejudice (without a settlement).
Possible Shareholder Liability
It is possible that certain states may not recognize the limited
liability of shareholders, although our declaration of trust provides that our
shareholders shall not be subject to any personal liability for our acts or
obligations. Our declaration of trust also provides that every written agreement
entered into by us shall contain a provision that our obligations are not
enforceable against our shareholders personally. No personal liability should
attach to our shareholders under any agreement containing such a provision;
however, not every written agreement entered into by us contains such a
provision. In certain states, our shareholders may be held personally liable for
claims against us (such as contract claims where the underlying
10
agreement does not specifically exclude shareholder liability, claims for taxes,
certain statutory liability and tort claims). Upon payment of any such
liability, however, the shareholder will, in the absence of willful misconduct
on the shareholder's part, be entitled to reimbursement from our general assets,
to the extent such assets are sufficient to satisfy the claim.
11
USE OF PROCEEDS
Unless otherwise described in a supplement to this prospectus, we
expect to use the net proceeds of the sale of our shares primarily to acquire
and originate government insured and uninsured mortgage investments consistent
with our investment policy limitations as stated in our declaration of trust, in
each case, as described in detail in the prospectus supplement depending upon
the circumstances at the time of the related offering, and for other general
trust purposes. Any specific allocation of the net proceeds of an offering of
shares to a specific purpose will be determined at the time of such offering and
will be described in the related supplement to this prospectus.
PLAN OF DISTRIBUTION
We may sell our shares in or outside the United States to or through
underwriters or dealers, through agents or directly to other purchasers. The
applicable supplement to this prospectus with respect to our shares, will set
forth the terms of the offering of our shares, including the name or names of
any underwriters, dealers or agents, the public offering price, any underwriting
discounts and other items constituting underwriter compensation, any discounts
or concessions allowed or reallowed or paid to dealers, and any securities
exchanges on which the securities may be listed.
Our shares may be sold directly by us or through agents designated by
us from time to time at fixed prices, which may be changed. Any agent involved
in the offer or sale of our shares will be named, and any commissions payable by
us to such agent will be set forth, in the supplement to this prospectus
relating thereto.
In connection with the sale of our shares, underwriters or agents may
receive compensation from us or from purchasers of our shares, for whom they may
act as agents, in the form of discounts, concessions or commissions.
Underwriters may sell our shares to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers and agents that participate in the distribution of
our shares may be deemed to be underwriters under the Securities Act, and any
discounts or commissions they receive from us and any profit on the resale of
our shares they realize may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from us will be described, in the
applicable supplement to this prospectus. Unless otherwise set forth in the
supplement to this prospectus relating thereto, the obligations of the
underwriters or agents to purchase our shares will be subject to conditions
precedent and the underwriters will be obligated to purchase all our shares if
any are purchased. The public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
Any common shares sold pursuant to this prospectus and applicable
prospectus supplement, will be approved for trading, upon notice of issuance, on
the American Stock Exchange.
12
Under agreements into which we may enter, underwriters, dealers and
agents who participate in the distribution of our shares may be entitled to
indemnification by us against and contribution toward certain liabilities,
including liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us in the ordinary course of business.
In order to comply with the securities laws of certain states, if
applicable, our shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states
securities may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration or
qualification requirement is available and complied with.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERENCE
DIVIDENDS
The following table sets forth our historical ratio of earnings to
combined fixed charges and preference dividends for the periods indicated:
Year Ended December 31,
----------------------
1997 1998 1999 2000 2001
------------------------------------------------------------
N/A N/A 8:1 2:1 4:1
============================================================
For the purposes of computing the ratio of earnings to fixed charges
and preference dividends, earnings were calculated using income before minority
interests, adding back total fixed charges less preference security dividend
requirements of consolidated subsidiaries. Fixed charges consist of interest
expense, minority interest in income of subsidiary, recurring fees and
amortization of capitalized costs related to indebtedness and preference
security dividend requirements of consolidated subsidiaries. There are no
periods in which earnings were insufficient to cover combined fixed charges and
preference dividends. We had no debt outstanding prior to 1999.
EXPERTS
The consolidated financial statements of American Mortgage Acceptance
Company and of ARCap Investors, L.L.C. incorporated in this prospectus by
reference from the Annual Report on Form 10-K of American Mortgage Acceptance
Company for the year ended December 31, 2001 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports which are
incorporated herein by reference, and have been so incorporated in reliance upon
the reports of such firm given upon their authority as experts in accounting and
auditing.
13
LEGAL MATTERS
Certain legal matters will be passed upon for us by Paul, Hastings,
Janofsky & Walker LLP, New York, New York. The validity of the shares will be
passed upon for us by Goodwin Procter LLP, Boston, Massachusetts.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). As a result, we file
annual, quarterly and special reports, proxy statements and other information
with the Securities and Exchange Commission ("SEC"). You may read and copy any
document we file at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549, as well as at the SEC's regional offices at Citigroup
Center, 500 West Madison Street, Room 1400, Chicago, Illinois 60661-2511. Please
call the SEC at 1-800-SEC-0330 for further information on the operation of the
Public Reference Rooms. The SEC maintains an internet site that contains
reports, proxy and information statements, and other information that we file
electronically with the SEC and which are available at the SEC's web site at:
http://www.sec.gov.
We have filed with the SEC a registration statement on Form S-3 under
the Securities Act to register the shares offered by this prospectus. This
prospectus is part of the registration statement. This prospectus does not
contain all the information contained in the registration statement because we
have omitted certain parts of the registration statement in accordance with the
rules and regulations of the SEC. You can obtain a copy of the registration
statement from the SEC at the address listed above or from the SEC's web site
listed above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act:
o Our Annual Report on Form 10-K for the fiscal year ended
December 31, 2001, filed with the SEC on April 1, 2002 (SEC
File No. 001-14583); and
o Form 8-A12B, filed with the SEC on October 30, 1998 (SEC File
No. 001-14583).
You may request a copy of these filings (not including the exhibits to
such documents unless the exhibits are specifically incorporated by reference in
the information contained in this prospectus), at no cost, by writing or
telephoning us at the following address:
14
American Mortgage Acceptance Company
625 Madison Avenue
New York, New York 10022
Attn: Hilary Forman
Telephone requests may be directed to (212) 421-5333.
This prospectus is part of a registration statement we filed with the
SEC. You should rely only on the information or representations provided in this
prospectus. We have authorized no one to provide you with different information.
We are not making an offer of these securities in any state where the offer is
not permitted. You should not assume that the information in this prospectus is
accurate as of any date other than the date on the front of the document.
Statements contained in this prospectus as to the contents of any
contract or document are not necessarily complete and in each instance reference
is made to the copy of that contract or document filed as an exhibit to the
registration statement or as an exhibit to another filing, each such statement
being qualified in all respects by such reference and the exhibits and schedules
thereto.
15
================================================================================
$200,000,000
AMERICAN
MORTGAGE ACCEPTANCE COMPANY
-------------------------
Prospectus
-------------------------
______, 2002
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Set forth below is an estimate of the approximate amount of the fees and
expenses (other than underwriting discounts and commissions) incurred in
connection with the sale and distribution of the securities being registered
hereby. All amounts except the Securities and Exchange Commission registration
fee are estimated.
Securities and Exchange Commission, registration fee....................$18,400
American Stock Exchange listing fee......................................17,500
Printing and engraving costs..............................................1,000
Mailing expenses..........................................................1,000
Accounting fees and expenses..............................................6,000
Legal fees and expenses..................................................20,000
Miscellaneous expenses....................................................5,000
Total.....................................................$68,900
=======
Item 15. Indemnification of Trustees, Officers, and Advisor
In our declaration of trust, we agreed to indemnify and hold harmless
our trustees, our Advisor and their affiliates who are performing services on
our behalf ("Indemnified Parties") against expense or liability, including
attorneys' fees and disbursements, in any action arising out of any act
performed or omitted to be performed by them in connection with our operation or
business; provided, that, (i) our trustee or the Advisor has determined, in good
faith, that the course of conduct which caused the loss or liability was in our
best interests (ii) such liability or loss was not the result of negligence or
misconduct on the part of the Indemnified Party and (iii) such indemnification
or agreement to hold harmless is recoverable only out of our assets and not from
the shareholders. In addition, our declaration of trust contains provisions
limiting the personal liability of our trustees, officers and shareholders.
We do not indemnify the Indemnified Parties for any liability imposed by
a judgment, and costs associated with a judgment, including attorneys' fees,
arising from or out of a violation of state or federal securities laws. However,
we may indemnify the Indemnified Parties for settlements and related expenses of
lawsuits alleging securities laws violations and for expenses incurred in
successfully defending such lawsuits, but only if: (a) a court either (i)
approves the settlement and finds that indemnification of the settlement and
related costs should be made or (ii) approves indemnification of litigation
costs if there has been a successful defense or (b) there has been a dismissal
on the merits with prejudice (without a settlement).
We purchased and maintain insurance on behalf of our trustees and
officers against liability asserted against such trustees and officers in their
capacities as such.
Item 16. Exhibits
1.1* Underwriting Agreement
4.1** Specimen Copy of Share Certificate for shares of beneficial
interest of the Registrant
5.1*** Opinion of Goodwin Procter LLP regarding the legality of the
shares being registered
12.1*** Statement regarding computation of Ratios of Earnings to Fixed
Charges
23.1*** Consent of Deloitte & Touche LLP regarding American Mortgage
Acceptance Company
23.2*** Consent of Deloitte & Touche LLP regarding ARCap Investors
L.L.C.
23.3*** Consent of Goodwin Procter LLP (included in the opinion filed as
Exhibit 5.1)
24.1*** Power of Attorney (included on signature page hereto).
--------------------
* To be filed by amendment.
** Incorporated by reference to Exhibit 4.1 of Registrant's Form S-2 filed
with the Securities and Exchange Commission on November 30, 2001
pursuant to the Securities Act of 1933 (Commission File No. 333- 74288).
*** Filed herewith.
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the form of a
prospectus pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post- effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
2
(2) For purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions referred to in Item 15 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of New York, New York on this 2nd day of May, 2002.
AMERICAN MORTGAGE ACCEPTANCE COMPANY
(Registrant)
By:/s/ Stuart J. Boesky
--------------------------------------
Stuart J. Boesky
Chairman of the Board,
President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Stuart J. Boesky, Alan P. Hirmes and Michael I. Wirth, and each or
either of them, his true and lawful attorney-in-fact with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement (or any registration statement for
the same offering that is to be effective upon filing pursuant to Rule 462(b)
under the Securities Act of 1933), and to cause the same to be filed, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby granting to said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing whatsoever requisite or desirable to be done in and
about the premises, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all acts and things
that said attorneys-in-fact and agents, or either of them, or their substitutes
or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons on behalf
of the registrant and in the capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Stuart J. Boesky
------------------------
Stuart J. Boesky Chairman of the Board, President May 2, 2002
and Chief Executive Officer
/s/ Peter T. Allen
------------------------
Peter T. Allen Trustee May 2, 2002
/s/ Arthur P. Fisch
------------------------
Arthur P. Fisch Trustee May 2, 2002
/s/ Alan P. Hirmes
------------------------
Alan P. Hirmes Trustee May 2, 2002
/s/ Scott M. Mannes
------------------------
Scott M. Mannes Trustee May 2, 2002
/s/ Michael I. Wirth
------------------------
Michael I. Wirth Senior Vice President and Chief May 2, 2002
Financial Officer
5
EXHIBIT INDEX
1.1 Underwriting Agreement
4.1 Specimen Copy of Share Certificate for shares of beneficial
interest of the Registrant
5.1 Opinion of Goodwin Procter LLP regarding the legality of the
shares being registered
12.1 Statement regarding computation of Ratios of Earnings to Fixed
Charges
23.1 Consent of Deloitte & Touche LLP regarding American Mortgage
Acceptance Company
23.2 Consent of Deloitte & Touche LLP regarding ARCap Investors
L.L.C.
23.3 Consent of Goodwin Procter LLP (included in the opinion filed as
Exhibit 5.1)
24.1 Power of Attorney (included on signature page hereto).