SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
AMENDMENT NO. 1
(Mark One)
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
- ------- EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2004
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
(Exact name of registrant as specified in its charter)
Delaware 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) 317-5700
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
--------------------------------------------------
Shares of Beneficial Interest, par value $.10
per share
Name of each exchange on which registered:
--------------------------------------------------
American Stock Exchange
Securities registered pursuant to Section 12(g) of the Act:
None
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 December 31, 2004 was
approximately $140,763,000 based on a price of $17.20 per share, the closing
sales price for the Registrant's common shares of beneficial interest on the
American Stock Exchange on that date.
As of March 1, 2005 there were 8,336,803 outstanding common shares of the
Registrant's shares of beneficial interest.
DOCUMENTS INCORPORATED BY REFERENCE
None
EXPLANATORY NOTE
This amendment to the Annual Report on Form 10-K/A for the year ended December
31, 2004 of American Mortgage Acceptance Company ("the Company") is being filed
to include:
(i) a copy of the amendment to the Company's declaration of trust which
was approved by shareholders at last year's annual meeting; and
(ii) the audited consolidated financial statements of ARCap Investors, LLC
("ARCap") for the years ended December 31, 2004, 2003 and 2002, as
required by Rule 3-09 of Regulation S-X. The Company has an investment
in ARCap which it accounts for under the equity method of accounting
and the financial statements were not available at the time the
Company filed its Annual Report on Form 10-K on March 16, 2005.
The consent of Ernst & Young LLP, independent registered public accounting firm
for ARCap, is also filed as an exhibit hereto.
There were no changes made to the Company's Form 10-K for the year ended
December 31, 2004.
2
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(c) Exhibits.
EXHIBIT NO. EXHIBIT TITLE
- ---------- -------------
3 Amendment to Declaration of Trust*
23(a) Consent of Ernst & Young LLP with respect to incorporation by
reference of its report relating to the 2004, 2003 and 2002
consolidated financial statements of ARCap Investors, LLC in the
Company's Registration Statement on Form S-3 and Form S-8*
24.1 Power of Attorney (previously filed as part of the Company's
filing on Form 10-K on March 16, 2005)
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*
99. Additional Exhibits
99(a) The 2004 consolidated financial statements of ARCap Investors,
LLC which invests primarily in subordinated commercial
mortgage-backed securities, as required by Regulation S-X, Rule
3-09*
99(b) The 2003 consolidated financial statements of ARCap Investors,
LLC which invests primarily in subordinated commercial
mortgage-backed securities, as required by Regulation S-X, Rule
3-09*
99(c) The 2002 consolidated financial statements of ARCap Investors,
LLC which invests primarily in subordinated commercial
mortgage-backed securities, as required by Regulation S-X, Rule
3-09*
* Filed herewith
3
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: March 31, 2005 By: /s/ Stuart J. Boesky
--------------------
Stuart J. Boesky
Chairman of the Board of Trustees,
President and Chief Executive Officer
Date: March 31, 2005 By: /s/ Alan P. Hirmes
------------------
Alan P. Hirmes
Managing 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
- -------------------- ------------------------------------- ---------------
/s/ Stuart J. Boesky
- --------------------
Stuart J. Boesky Chairman of the Board of Trustees,
President and Chief Executive Officer March 31, 2005
/s/ Alan P. Hirmes
- ------------------
Alan P. Hirmes Managing Trustee
and Chief Financial Officer March 31, 2005
*
- --------------------
Stanley R. Perla Trustee March 31, 2005
*
- --------------------
Richard M. Rosan Trustee March 31, 2005
*
- --------------------
Scott M. Mannes Trustee March 31, 2005
* by: /s/ Alan P. Hirmes
------------------
Attorney-in-Fact
4
Exhibit 3
AMENDMENT TO DECLARATION OF TRUST
To the Secretary of State of
Commonwealth of Massachusetts
It is herby stated that:
1. This document constitutes an Amendment to the Second Amended
and Restated Declaration of Trust (hereinafter called the "Declaration") of
AMERICAN MORTGAGE ACCEPTANCE COMPANY (hereinafter called the "business trust").
2. The Declaration amended by this document was filed with the
Secretary of State of the Commonwealth of Massachusetts on April 6, 1999.
3. The amendment to the Declaration effected by this document is
as follows:
Deleting the first sentence of Article IV, Section 4.8 in its entirety
and restating said sentence in its entirety as follows:
"COMPENSATION. Independent Trustees may receive fixed sums, Common Shares in the
Trust or other compensation per year and/or per meeting and/or for any service
or activity they perform or engage in as Trustees, as determined by resolution
of the Board of Trustees. Additionally, Independent Trustees shall be reimbursed
for travel expenses and other out-of-pocket disbursements incurred in connection
with attending any meetings. Non-Independent Trustees shall not receive any
compensation from the Trust. Nothing herein shall be construed to preclude any
non-Independent Trustee from serving the Trust in any other capacity as an
officer, agent or otherwise, and receiving compensation therefor. Independent
Trustees shall not perform any services for the Trust except as Trustees."
4. The amendment herein provided for was authorized in accordance
with law.
IN WITNESS WHEREOF, the undersigned has executed this amendment this 20th day of
August, 2004.
By: /s/ Alan P. Hirmes
------------------
Name: Alan P. Hirmes
Title: Managing Trustee and Chief Financial Officer
5
Exhibit 23(a)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in Registration Statement (Form S-3
No. 33-87440 and Form S-8 No. 33-118572) of American Mortgage Acceptance Company
and in the related Prospectus of our reports dated March 29, 2005, February 6,
2004 and February 4, 2003, with respect to the consolidated financial statements
of ARCap Investors, L.L.C. included in this Annual Report (Form 10-K) for the
year ended December 31, 2004.
/s/ Ernst & Young LLP
Dallas, Texas
March 29, 2005
6
Exhibit 31.1
CERTIFICATION
I, Stuart J. Boesky, hereby certify that:
1. I have reviewed this annual report on Form 10-K of American Mortgage
Acceptance Company;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements made, in light of the circumstances
under which such statements were made, not misleading with respect to
the period covered by this annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all
material respects the financial condition, results of operations and
cash flows of the registrant as of, and for, the periods presented in
this annual report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and we have:
a) designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure the material information relating to the
registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in
which this annual report is being prepared;
b) designed such internal control over financial reporting, or caused
such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting
principals;
c) evaluated the effectiveness of the registrant's disclosure controls
and procedures presented in this annual report our conclusions about
the effectiveness of the disclosure controls and procedures, as of the
end of the period covered by this report based on such evaluation; and
d) disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter that has materially affected, or is
reasonably likely to materially affect, the registrant's internal
control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of
registrant's board of directors or persons performing the equivalent
functions:
a) all significant deficiencies and material weaknesses in the design
or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's
internal control over financial reporting.
Date: March 31, 2005 By: /s/ Stuart J. Boesky
-------------- --------------------
Stuart J. Boesky
Chief Executive Officer
7
Exhibit 31.2
CERTIFICATION
I, Alan P. Hirmes, hereby certify that:
1. I have reviewed this annual report on Form 10-K of American Mortgage
Acceptance Company;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements made, in light of the circumstances
under which such statements were made, not misleading with respect to
the period covered by this annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all
material respects the financial condition, results of operations and
cash flows of the registrant as of, and for, the periods presented in
this annual report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and we have:
a) designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure the material information relating to the
registrant, including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the period in
which this annual report is being prepared;
b) designed such internal control over financial reporting, or caused
such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting
principals;
c) evaluated the effectiveness of the registrant's disclosure controls
and procedures presented in this annual report our conclusions about
the effectiveness of the disclosure controls and procedures, as of the
end of the period covered by this report based on such evaluation; and
d) disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter that has materially affected, or is
reasonably likely to materially affect, the registrant's internal
control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of
registrant's board of directors or persons performing the equivalent
functions:
a) all significant deficiencies and material weaknesses in the design
or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's
internal control over financial reporting.
Date: March 31, 2005 By: /s/ Alan P. Hirmes
-------------- ------------------
Alan P. Hirmes
Chief Financial Officer
8
Exhibit 32.1
CERTIFICATION PURSUANT TO
18.U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of American Mortgage Acceptance Company
(the "Company") on Form 10-K for the year ending December 31, 2004, as filed
with the Securities and Exchange Commission on the date hereof (the "Report"),
I, Stuart J. Boesky, Chief Executive Officer of the Company, certify, pursuant
to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations of the
Company.
By: /s/ Stuart J. Boesky
--------------------
Stuart J. Boesky
Chief Executive Officer
March 31, 2005
A signed original of this written statement required by Section 906 has been
provided to the Company and will be retained by the Company and furnished to the
Securities and Exchange Commission or its staff upon request.
9
Exhibit 32.2
CERTIFICATION PURSUANT TO
18.U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of American Mortgage Acceptance Company
(the "Company") on Form 10-K for the year ending December 31, 2004, as filed
with the Securities and Exchange Commission on the date hereof (the "Report"),
I, Alan P. Hirmes, Chief Financial Officer of the Company, certify, pursuant to
18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations of the
Company.
By: /s/ Alan P. Hirmes
------------------
Alan P. Hirmes
Chief Financial Officer
March 31, 2005
A signed original of this written statement required by Section 906 has been
provided to the Company and will be retained by the Company and furnished to the
Securities and Exchange Commission
10