As filed with the Securities and Exchange Commission on April 24, 2003
Registration No. 333-_____
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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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ACADIA REALTY TRUST
(Exact Name of Registrant as Specified in Its Charter)
Maryland 23-2715194
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
20 Soundview Marketplace
Port Washington, New York 11050
(516) 767-8830
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Kenneth F. Bernstein With copies to:
Acadia Realty Trust Mark Schonberger, Esq.
20 Soundview Marketplace Paul, Hastings, Janofsky & Walker LLP
Port Washington, New York 11050 75 East 55th Street
(516) 767-8830 New York, New York 10022
(Name, Address, Including Zip Code, (212) 318-6000
and Telephone Number, Including
Area Code, of Agent For Service)
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
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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 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. |_|
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of each class of securities Amount to Be Offering Price Aggregate Amount of
to be registered Registered Per Unit (1) Offering Price (1) Registration Fee (1)
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Common shares of beneficial interest, par value $.001 N/A N/A $75,000,000 $6,067.50
per share
Preferred shares of beneficial interest
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1.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.
2.Such indeterminate number of shares as may from time to time be issued at
indeterminate prices registered hereunder.
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant will file a
further amendment which specifically states that this Registration Statement
will thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement will 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 it 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 _______, 2003
Subject to Completion
$75,000,000
ACADIA REALTY TRUST
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Common and Preferred Shares of Beneficial Interest
We may offer, from time to time:
o common shares of beneficial interest, par value $0.001 per share;
and
o preferred shares of beneficial interest.
For each type of securities listed above, the amount, price and terms
will be determined at or prior to the time of sale.
The specific terms of these securities will be set forth in one or more
supplements to this prospectus, which will also contain information, where
appropriate, about the risk factors and federal income tax considerations
relating to these securities. You should read this prospectus and any
accompanying prospectus supplement carefully before you purchase our securities.
We may sell these securities directly to investors or to or through
underwriters, dealers or agents. More information about the way we will
distribute these securities is in the prospectus under the heading "Plan of
Distribution" on page 7. This prospectus may not be used to sell any of these
securities unless accompanied by a prospectus supplement.
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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 _____, 2003
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TABLE OF CONTENTS
Page
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INFORMATION ABOUT THIS PROSPECTUS..............................................1
FORWARD-LOOKING INFORMATION....................................................1
OUR COMPANY....................................................................2
DESCRIPTION OF OUR SHARES......................................................3
USE OF PROCEEDS................................................................8
INTERESTS OF NAMED EXPERTS AND COUNSEL.........................................8
PLAN OF DISTRIBUTION...........................................................8
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERENCE
DIVIDENDS.................................................................9
EXPERTS........................................................................9
LEGAL MATTERS..................................................................9
WHERE YOU CAN FIND MORE INFORMATION...........................................10
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...............................10
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INFORMATION ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission ("SEC") using a "shelf" registration
process. Under this shelf process, we may sell in one or more offerings, our
equity securities with an aggregate public offering price of up to $75,000,000.
This prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. Before you invest, you should read both this prospectus and the
applicable prospectus supplement together with the additional information
described in this prospectus under the headings "Where You Can Find More
Information" on page 9 and "Incorporation of Certain Documents by Reference" on
page 9.
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.
You should rely only on the information incorporated by reference or
provided in this prospectus and any accompanying prospectus supplement. We have
not authorized anyone to provide you with additional 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 or the
accompanying prospectus supplement is accurate as of any date other than the
date of this prospectus or the accompanying prospectus supplement.
Throughout this prospectus, the terms "Company," "we," "our" and "us,"
are all used in reference to Acadia Realty Trust, except as the context
otherwise requires.
OUR COMPANY
We are Acadia Realty Trust (formerly known as Mark Centers Trust), a
Maryland real estate investment trust ("REIT") formed on March 4, 1993. We are a
fully integrated, self-managed and self-administered equity REIT focused
primarily on the ownership, acquisition, redevelopment and management of
neighborhood and community shopping centers. All of our assets are held by, and
all of our operations are conducted through, Acadia Realty Limited Partnership,
a Delaware limited partnership formerly known as Mark Centers Limited
Partnership. We refer to Acadia Realty Limited Partnership and its
majority-owned subsidiaries as the "Operating Partnership" throughout this
prospectus. As of the date of this prospectus, we controlled 90% of the
Operating Partnership as the sole general partner. The limited partners
represent entities or individuals who contributed their interests in certain
properties or partnerships to the Operating Partnership in exchange for common
or preferred units of limited partnership interest, which we refer to as "OP
Units." The common OP Units are exchangeable for our common shares on a
one-for-one basis, subject to adjustment for certain events.
We currently operate 62 properties which we own or have an ownership
interest in, consisting of 58 neighborhood and community shipping centers, one
enclosed mall, one mixed-use property (retail/residential) and two multifamily
properties, all of which are located in the Northeast, Mid-Atlantic and Midwest
United States, totaling approximately 9.0 million square feet.
Our primary business objective is to acquire and manage commercial
retail properties that will provide cash for distributions to our shareholders
while also creating potential for capital appreciation to enhance investor
returns. Currently, the primary conduit for our acquisition program is through a
newly-formed joint venture, the Acadia Strategic Opportunity Fund, LP, which we
and four of our institutional shareholders formed in September 2001. Initially,
the investors committed $70 million. We committed an additional $20 million of
investor capital to the venture and will be entitled to receive standard
management, construction and leasing fees with respect to properties acquired by
the joint venture. In addition, we are entitled to an asset management fee equal
to 1.5% of the capital committed as well as an incentive payment of 20% after
the return of all investor capital with a 9% preferred return.
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.
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Investing in our securities involves various risks. In considering
whether to purchase our securities, you should carefully consider the matters
discussed under "Risk Factors" in the supplement relating to this prospectus.
Our principal executive offices are located at 20 Soundview Marketplace,
Port Washington, New York, 10050, and our telephone number is (516) 767-8830.
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 Maryland 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," on page 9.
Overview
Under our declaration of trust, our board of trustees has the authority
to issue 100,000,000 shares of beneficial interest in our Company, consisting of
common shares, preferred shares and other types or classes of securities
(including debt securities) representing a beneficial interest in our Company.
As of the date of this prospectus, our issued and outstanding shares of
beneficial interest consist of 25,561,216 common shares. There are also issued
and outstanding, 2,894,033 OP Units convertible into our common shares on a
one-for-one basis and 2,212 convertible preferred OP Units convertible into OP
Units at a conversion price of $7.50 per share based on a stated value of $1,000
per preferred OP Unit. The convertible preferred OP Units have a distribution
preference and entitle the holder thereof to a 9% dividend yield. We do not
currently have any preferred shares issued and outstanding.
Subject to the New York 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 Maryland 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 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 dividend, liquidation and other
rights, and have no preference, exchange or appraisal rights, except for any
appraisal rights provided by Maryland law. Holders of our common shares have no
conversion, sinking fund or redemption rights, or preemptive rights to subscribe
for any of our securities.
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Distributions. Holders of our common shares may receive distributions
out of assets that we can legally use to pay distributions, when and if they are
authorized and declared by our board of trustees. Each common shareholder shares
in the same proportion as other common shareholders out of the assets that we
can legally use to pay distributions after we pay or make adequate provision for
all of our known debts and liabilities in the event we are liquidated, dissolved
or our affairs are wound up.
Voting Rights. Holders of our common shares have the power to vote on
all matters presented to our common shareholders, including the election of
trustees, except as otherwise provided by Maryland law. Our declaration of trust
prohibits us from merging, if we are not the surviving entity, or selling all or
substantially all of our assets without the approval of two-thirds of the
outstanding shares that are entitled to vote on such matters; all other mergers
or consolidations require approval of a majority of the outstanding shares that
are entitled to vote on such matters. Holders of our common shares are entitled
to one vote per share.
There is no cumulative voting in the election of our trustees, which
means that holders of more than 50% of the common shares voting for the election
of trustees can elect all of the trustees if they choose to do so and the
holders of the remaining shares cannot elect any trustees.
Restrictions on Transfer. To qualify as a REIT under the Internal
Revenue Code of 1986, we must satisfy certain ownership requirements.
Specifically, not more than 50% in value of our outstanding common shares may be
owned, directly or indirectly, by five or fewer individuals (as defined in the
Internal Revenue Code of 1986 to include certain entities) during the last half
of a taxable year, and the common shares must be beneficially owned by 100 or
more persons during at least 335 days of a taxable year of twelve months or
during a proportionate part of a shorter taxable year. We must also satisfy
certain income requirements to maintain our REIT status. One such requirement is
that at least 75% of our Company's gross income for each calendar year must
consist of rents from real property and income from certain other real property
investments. This is complicated by the fact that the rents received by the
Operating Partnership will not qualify as rents from real property if we own,
actually or constructively, 10% or more of the ownership interests in our
lessees, within the meaning of section 856(d)(2)(B) of the Internal Revenue Code
of 1986, as amended. See "Federal Income Tax Considerations," in the applicable
supplement to this prospectus.
Because our board of trustees believes it is essential for us to
continue to qualify as a REIT, our declaration of trust contains provisions
aimed at satisfying the requirements described above. In regard to the ownership
requirements, our declaration of trust provides that subject to certain
exceptions, no person may own, or be deemed to own by virtue of the attribution
provisions of the Internal Revenue Code of 1986, more than 4% of our outstanding
common shares. Our trustees may waive this 4% limitation if evidence
satisfactory to them or our tax counsel is presented that such ownership will
not jeopardize our status as a REIT. As a condition of such waiver, our trustees
may require opinions of counsel satisfactory to them and/or an undertaking from
the applicant with respect to preserving our REIT status.
The trustees of Mark Centers Trust waived the 4% ownership limitation in
August 1998 when certain affiliates of RD Capital, Inc. received shares in
consideration of their contribution to Mark Center Limited Partnership. Our
trustees waived the 4% ownership limitation in January 2002, when they permitted
Yale University to acquire 2,266,667 common shares. As a condition to allowing
the acquisition, a voting trust was created whereby all shares that Yale
University owns in excess of 30% of our outstanding common shares will be voted
in the same proportion as all other shares voted, excluding Yale. Our trustees
permitted investors owning in excess of 4% of the trust's outstanding shares to
acquire additional shares on three other occasions through open market purchases
transacted during specified three-month windows.
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In addition, our declaration of trust provides that any purported
transfer or issuance of shares or securities transferable into shares which
would (i) violate the 4% limitation described above, (ii) result in shares being
owned by fewer than 100 persons for purposes of the REIT provisions of the
Internal Revenue Code of 1986, (iii) result in our Company being "closely held"
with the meaning of Section 856(h) of the Internal Revenue Code of 1986, or (iv)
otherwise jeopardize our REIT status under the Internal Revenue Code (including
a transfer which would cause us to own, actually or constructively, 9.8% or more
of the ownership interests in one of our lessees) will be null and void ab
initio (from the beginning). Moreover, common shares transferred, or proposed to
be transferred, in contravention of the above will be subject to purchase by us
at a price equal to the lesser of (i) the price stipulated in the challenged
transaction and (ii) the fair market value of such shares (determined in
accordance with the rules set forth in our declaration of trust).
All certificates representing the common shares bear a legend referring
to the restrictions described above.
The ownership limitations described above could have the effect of
delaying, deferring or preventing a takeover or other transaction in which
holders of some, or a majority, of common shares might receive a premium for
their shares over the then prevailing market price or which such holders might
believe to be otherwise in their best interest.
Transfer Agent and Registrar. The transfer agent and registrar 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 Maryland law and our trust
agreement, our board of trustees is authorized to issue one or more series of
preferred shares from time to time and, with respect to any such series, to fix
the designations, numbers, preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends, qualifications and terms or
conditions of redemption of such series.
Reference is made to any supplement to this prospectus relating to the
preferred shares offered thereby for specific items, including:
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;
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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:
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,
common 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
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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 securities 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.
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 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.
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USE OF PROCEEDS
Unless otherwise described in a supplement to this prospectus, we expect
to use the net proceeds of the sale of our securities primarily to acquire,
redevelop and manage commercial retail properties, as described in detail in the
prospectus supplement depending upon the circumstances at the time of the
related offering, and for other general Company purposes. Any specific
allocation of the net proceeds of an offering of securities to a specific
purpose will be determined at the time of such offering and will be described in
the related supplement to this prospectus.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Martin L. Edelman, one of our trustees, is counsel to the law firm of
Paul, Hastings, Janofsky & Walker LLP. Paul Hastings is rendering an opinion as
to certain tax matters in the registration statement of which this prospectus is
a part.
PLAN OF DISTRIBUTION
We may sell our securities 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 securities, will
set forth the terms of the offering of our securities, 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 securities 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 securities will be named, and any
commissions payable by us to such agent will be set forth, in the supplement to
this prospectus relating thereto.
The distribution of our securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices.
In connection with the sale of our securities, underwriters or agents
may receive compensation from us or from purchasers of our securities, for whom
they may act as agents, in the form of discounts, concessions or commissions.
Underwriters may sell our securities 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 securities 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 securities 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 securities will be subject to conditions
precedent and the underwriters will be obligated to purchase all our securities
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.
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Any securities sold pursuant to this prospectus and applicable
prospectus supplement, will be approved for trading, upon notice of issuance, on
the New York Stock Exchange.
Under agreements into which we may enter, underwriters, dealers and
agents who participate in the distribution of our securities 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 securities 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,
-----------------------
1998 1999 2000 2001 2002
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0.23 1.34 1.41 1.53 2.00
============================================================
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. Other than in 1998,
there are no years in which earnings were insufficient to cover combined fixed
charges and preference dividends. In 1998, earnings were adversely affected by
certain non-recurring charges associated with the acquisition of properties and
issuance of common shares and OP Units to affiliates of RD Capital, Inc., as
well as expenses recognized in connection with the settlement of certain
litigation.
EXPERTS
Our consolidated financial statements incorporated in this prospectus by
reference from our Annual Report on Form 10-K for the year ended December 31,
2002 have been audited by Ernst & Young LLP, independent auditors, as stated in
their report which is incorporated herein by reference, and has been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
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 securities will
be passed upon for us by Berliner, Corcoran & Rowe L.L.P., Washington, DC.
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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 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, 2002, filed with the SEC on March 28, 2003 (SEC File No.
001-12002);
o The description of our common shares of beneficial interest
contained in our registration statement on Form 8-A together with
all amendments and reports updating such description dated May 21,
1993 (SEC File No. 33-6008).
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:
Acadia Realty Trust
20 Soundview Marketplace
Port Washington, New York 11050
Attn: Jon Grisham
Telephone requests may be directed to (516) 767-8830.
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
10
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.
11
================================================================================
$75,000,000
ACADIA REALTY TRUST
-------------------------
Prospectus
-------------------------
______, 2003
================================================================================
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14 OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the offering are as follows:
Securities and Exchange Commission registration fee......... $ 6,067.50
Accounting fees and expenses................................ 5,000.00
Legal fees and expenses..................................... 15,000.00
Miscellaneous............................................... 1,000.00
-------------
TOTAL................................................. $ 27,067.50
=============
ITEM 15 INDEMNIFICATION OF TRUSTEES AND OFFICERS.
Our bylaws and declaration of trust authorize our Company, to the extent
permitted under Maryland law, to indemnify its trustees and officers in their
capacity as such. Section 8-301(15) of the Maryland General Corporation Law
("MGCL") permits a Maryland REIT to indemnify or advance expenses to trustees
and officers to the same extent as is permitted for directors and officers of a
Maryland corporation under the MGCL. The MGCL requires a Maryland corporation
(unless its charter provides otherwise, which our declaration of trust does not)
to indemnify a director or officer who has been successful, on the merits or
otherwise, in the defense of any proceeding to which he is made a party by
reason of his service in that capacity. The MGCL permits a Maryland corporation
to indemnify its present and former directors and officers, among others,
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service in those or other capacities unless it
is established that (a) the act or omission of the director or officer was
material to the matter giving rise to the proceeding and (i) was committed in
bad faith or (ii) was the result of active and deliberate dishonesty, (b) the
director or officer actually received an improper personal benefit in money,
property or services or (c) in the case of any criminal proceeding, the director
or officer had reasonable cause to believe that the act or omission was
unlawful. However, a Maryland corporation may not indemnify for an adverse
judgment in a suit by or in the right of the corporation or for a judgment of
liability on the basis that a personal benefit was improperly received, unless
in either case a court orders indemnification and then only for expenses. In
addition, the MGCL permits a corporation to advance reasonable expenses to a
director or officer upon the corporation's receipt of a written affirmation by
the director or officer of his or her good faith belief that he or she has met
the standard of conduct necessary for indemnification by the corporation and a
written undertaking by such director or officer on his or her behalf to repay
the amount paid or reimbursed by the corporation if it shall ultimately be
determined that the standard of conduct was not met.
Our bylaws also permit our Company, subject to the approval of our board
of trustees, to indemnify and advance expenses to any person who served as a
predecessor of our Company in any of the capacities described above and to any
employee or agent of our Company or a predecessor of our Company.
In addition to the above, our Company has purchased and maintains
insurance on behalf of all of its trustees and executive officers against
liability asserted against or incurred by them in their official capacities with
our Company, whether or not our Company is required or has the power to
indemnify them against the same liability.
Item 16. Exhibits.
1.1 Underwriting Agreement To be filed by amendment
4.1 Specimen Share Certificate Filed herewith
5.1 Opinion of Berliner, Corcoran & Rowe Filed herewith
L.L.P. regarding the legality of the
securities being registered
8.1 Opinion of Paul, Hastings, Janofsky & Filed herewith
Walker LLP regarding certain tax matters
12.1 Statement regarding computation of Ratios Filed herewith
of Earnings to Fixed Charges
23.1 Consent of Berliner, Corcoran & Rowe Filed herewith
L.L.P. (included in Exhibit 5.1)
23.2 Consent of Paul, Hastings, Janofsky & Filed herewith
Walker LLP (included in Exhibit 8.1)
23.3 Consent of Ernst & Young LLP (New York, Filed herewith
New York)
24.1 Power of Attorney (included on signature Filed herewith
page hereto)
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% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(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 offering 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 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.
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 SEC 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 as to 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Acadia
Realty Trust 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 Port Washington, State of New York,
on this 24th day of April, 2003.
ACADIA REALTY TRUST
A Maryland real estate investment trust (registrant)
By: /s/ Kenneth F. Bernstein
------------------------
Name: Kenneth F. Bernstein
Title: Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
[Kenneth F. Bernstein] and [Robert Masters], 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, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Kenneth F. Bernstein Chief Executive Officer, April 24, 2003
- ------------------------ President and Trustee
Kenneth F. Bernstein (Principal Executive Officer)
/s/ Michael Nelsen Senior Vice President and April 24, 2003
- ------------------ Chief Financial Officer
Michael Nelsen (Principal Financial and
Accounting Officer)
/s/ Ross Dworman Chairman and Trustee April 24, 2003
- ----------------
Ross Dworman
/s/ Martin L. Edelman Trustee April 24, 2003
- ---------------------
Martin L. Edelman
/s/ Alan S. Forman Trustee April 24, 2003
- ------------------
Alan S. Forman
/s/ Marvin L. Levine Trustee April 24, 2003
- --------------------
Marvin L. Levine
/s/ Lawrence J. Longua Trustee April 24, 2003
- ----------------------
Lawrence J. Longua
/s/ Gregory White Trustee April 24, 2003
- -----------------
Gregory White
/s/ Lee S. Wielansky Trustee April 24, 2003
- --------------------
Lee S. Wielansky
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
1.1 Underwriting Agreement
4.1* Specimen Share Certificate
5.1* Opinion of Berliner, Corcoran & Rowe
L.L.P. regarding the legality of the
securities being registered
8.1* Opinion of Paul, Hastings, Janofsky &
Walker LLP regarding certain tax matters
12.1* Statement regarding computation of Ratios
of Earnings to Fixed Charges
23.1* Consent of Berliner, Corcoran & Rowe
L.L.P. (included in Exhibit 5.1)
23.2* Consent of Paul, Hastings, Janofsky &
Walker LLP (included in Exhibit 8.1)
23.3* Consent of Ernst & Young LLP (New York,
New York)
24.1* Power of Attorney (included on signature
page hereto)
- ------------------------
* Filed herewith
Exhibit 4.1
Exhibit 5.1
April 23, 2003
Acadia Realty Trust
20 Soundview Marketplace
Port Washington, New York 11050
re: Acadia Realty Trust Registration of Common Shares of
Beneficial Interest and Preferred Shares of Beneficial
Interest on Form S-3
Ladies and Gentlemen:
We have acted as special counsel for Acadia Realty Trust, a Maryland real
estate investment trust (the "Trust"), in connection with the preparation and
filing of a registration statement on Form S-3 (the "Registration Statement")
under the Securities Act of 1933, as amended, pursuant to which the Trust
intends to register a maximum aggregate offering amount of $75,000,000 of (i)
shares of its Common Shares of Beneficial Interest, par value $.001 per share
("Common Shares"), and (ii) shares of its Preferred Shares of Beneficial
Interest ("Preferred Shares"), for issuance by the Trust, as described in the
Registration Statement and the prospectus included therein. This opinion is
being furnished to you as a supporting document for such Registration Statement.
In this connection we have examined and considered the original or copies,
certified or otherwise identified to our satisfaction, of the following:
(i) The Declaration of Trust of the Trust including all amendments
thereto, as in effect on the date hereof,
(ii) The By-Laws of the Trust, including all amendments thereto, as in
effect on the date hereof,
(iii) The Resolutions of the Board of Trustees of the Trust, adopted at a
meeting of the Board of Trustees on April 22, 2003, which, among other things,
authorize the filing of a Registration Statement on Form S-3 relating to the
issuance of up to an aggregate of $75,000,000 of Common Shares and Preferred
Shares as is necessary or appropriate in connection with acquiring,
redeveloping, and managing commercial retail properties and other general Trust
purposes,
Acadia Realty Trust 2 April 23, 2003
(iv) The Registration Statement filed with the Securities and Exchange
Commission, and
(v) A Certificate of the Secretary of the Trust dated April 22, 2003.
In addition, we have obtained from public officials, officers and other
representatives of the Trust, and others such certificates, documents and
assurances as we considered necessary or appropriate for purposes of rendering
this opinion. In our examination of the documents listed in (i)-(v) above and
the other certificates and documents referred to herein, we have assumed the
legal capacity of all natural persons, the genuineness of all signatures on
documents not executed in our presence and facsimile or photostatic copies of
which we reviewed, the authenticity of all documents submitted to us as
originals, the conformity to the original documents of all documents submitted
to us as certified or photostatic copies and the authenticity of the originals
of such documents. Without limiting the generality of the foregoing we have
relied upon the representations of the Trust as to (i) the accuracy and
completeness of (a) the Declaration of Trust, (b) the By-laws of the Trust, and
(c) the Registration Statement; and (ii) the representations of the Trust that
(x) the resolutions of the Trustees, dated April 22, 2003, (y) the Declaration
of Trust, and (z) the By-laws of the Trust have not been rescinded, modified or
revoked and no proceedings for the amendment, modification, or rescission of any
of such documents are pending or contemplated.
Based upon the assumptions, qualifications, and limitations set forth
herein, and relying upon the statements of fact contained in the documents that
we have examined, we are of the opinion, as of the date hereof, that when issued
and sold, and when full payment therefor has been received by the Trust, as
described in the Registration Statement, the Common Shares and (when duly
authorized and designated as such by the Trust's Board of Trustees in accordance
with the Trust's Declaration of Trust, as amended) the Preferred Shares, as the
case may be, shall constitute legally issued, fully paid and nonassessable, and
valid and binding obligations of the Trust.
In addition to the assumptions set forth above, the opinions set forth
herein are also subject to the following qualifications and limitations:
(a) The opinions expressed in this letter are based upon the assumption
that the Trust will keep the Registration Statement effective.
(b) The opinions expressed in this letter are specifically limited to the
matters set forth in this letter and no other opinions should be inferred beyond
the matters expressly stated herein.
(c) The opinions expressed in this letter are based on the laws of the
jurisdictions
Acadia Realty Trust 3 April 23, 2003
referred to in the next paragraph as they may be in effect on the
date hereof and we assume no obligation to supplement this opinion if any
applicable laws change after the date hereof.
The opinions herein expressed are limited in all respects solely to
matters governed by the internal laws of the State of Maryland, and the federal
laws of the United States of America, insofar as each may be applicable. We
express no opinion herein with respect to matters of local, county or municipal
law, or with respect to the laws, regulations, or ordinances of local agencies
within any state. Subject to the foregoing, any reference herein to "law" means
applicable constitutions, statutes, regulations and judicial decisions. To the
extent that this opinion relates to the laws of the State of Maryland, it is
based upon the opinion of members and lawyers of this firm who are members of
the bar of that State.
This opinion letter is rendered solely to you in connection with the above
referenced matter and may not be relied upon by you for any other purpose or
delivered to, or quoted or relied upon by, any other person without our prior
written consent. This opinion letter is rendered as of the date hereof, and we
assume no obligation to advise you of any facts, circumstances, events or
developments that may be brought to our attention in the future, which facts,
circumstances, events or developments may alter, affect or modify the opinions
or beliefs expressed herein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Registration Statement and the prospectus included therein.
Very truly yours,
/s/ Berliner, Corcoran & Rowe, LLP
Exhibit 8.1
PaulHastings /
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street, New York, New York, 10022-3205
telephone 212-318-6000 / facsimile 212-319-4090 / internet www.paulhastings.com
Atlanta
Beijing
Hong Kong
London
Los Angeles
New York
Orange County
San Francisco
Stamford
Tokyo
Washington, D.C.
April 23, 2003 41193.00001
Acadia Realty Trust
20 Soundview Marketplace
Port Washington, NY 11050
Re: Tax Opinion
Gentlemen:
We have acted as counsel to Acadia Realty Trust, a Maryland real estate
investment trust (the "Company"), in connection with the registration of up to
common shares of beneficial interest of the Company (the "Shares"), $0.001 par
value. The Shares may be offered for sale by the Company (the "Offering")
pursuant to a registration statement (the "Registration Statement") to be filed
by the Company with the Securities and Exchange Commission on Form S-3. All of
the net proceeds of the Offering will be contributed to the Company. You have
requested our opinion as to certain federal income tax matters in connection
with the Offering.
Acadia Realty Limited Partnership, a Delaware limited partnership (the
"Operating Partnership"), owns equity interests in existing shopping centers
(and certain other real property) and associated personal property (the
"Properties"). The Operating Partnership owns some of the Properties directly
and owns the remaining Properties through limited liability companies or
subsidiary partnerships (collectively, the "Subsidiary Partnerships").
In connection with the opinions rendered below, we have examined the following:
I. the Declaration of Trust of the Company, as amended, as filed with the
Secretary of State of Maryland;
II. the Company's Amended Bylaws;
III. the Registration Statement, including the prospectus contained as part of
the Registration Statement (the "Prospectus");
IV. the Amended and Restated Agreement of Limited Partnership of the Operating
Partnership dated as of March 22, 1999 (the "Operating Partnership
Agreement"), among the Company, as general partner and several other
limited partners;
V. the first and second amendments to the Operating Partnership Agreement
dated, respectively, as of November 15, 1999 and November 18, 1999;
Acadia Realty Trust
April 23, 2003
Page 2
VI. the partnership agreements or operating agreements of the Subsidiary
Partnerships; and
VII. such other documents as we have deemed necessary or appropriate for
purposes of this opinion.
In connection with the opinions rendered below, we have assumed generally that:
I. each of the documents referred to above has been duly authorized,
executed, and delivered; is authentic, if an original, or is accurate, if
a copy; and has not been amended;
II. during each taxable year, including its short taxable year ending December
31, 1993, the Company has operated and will operate in such a manner that
will make the representations contained in the Representation Letter,
dated April 23, 2003 and executed by the President of the Company (the
"Representation Letter"), true for such years;
III. the Company will not make any amendments to its organizational documents
or the Operating Partnership Agreement, after the date of this opinion,
that would affect the Company's qualification as a real estate investment
trust (a "REIT") for any taxable year; and
IV. neither the Operating Partnership or any Subsidiary Partnership will make
an election to be taxed as an association taxable as a corporation or
other than as a partnership pursuant to Treasury Regulation Section
301.7701-3(c).
In connection with the opinions rendered below, we also have relied upon the
correctness of the representations contained in the Representation Letter.
For purposes of our opinions, we made such factual and legal inquiries,
including examination of the documents set forth above, as we have deemed
necessary or appropriate for purposes of our opinion. For purposes of rendering
our opinion, however, we have not made an independent investigation of the facts
contained in the documents and assumptions set forth above, the representations
set forth in the Representation Letter, or the Prospectus. We consequently have
relied upon the representations in the Representation Letter that the
information presented in such documents or otherwise furnished to us is accurate
and complete in all material respects relevant to our opinion.
We have acted as counsel to the Company since August 12, 1998. Accordingly, the
first full taxable year for which we have acted as counsel to the Company is the
taxable year ending December 31, 1999, and our opinion rendered below does not
address any period before January 1, 1999. We have assumed that, for periods
prior to January 1, 1999, the
Acadia Realty Trust
April 23, 2003
Page 3
Company qualified to be taxed as a REIT pursuant to sections 856 through 860 of
the Code and that the Operating Partnership and the Subsidiary Partnerships were
properly treated for federal income tax purposes as partnerships and not as
associations taxable as corporations or as publicly traded partnerships.
In addition, to the extent that any of the representations provided to us in the
Representation Letter are with respect to matters set forth in the Internal
Revenue Code of 1986, as amended (the "Code"), or the Treasury regulations
thereunder (the "Regulations"), we have reviewed with the individual making such
representation the relevant portion of the Code and the applicable Regulations
and are reasonably satisfied that such individual understands such provisions
and is capable of making such representations.
Based on the documents and assumptions set forth above, the representations set
forth in the Representation Letter, and the discussion in the Prospectus under
the caption "Federal Income Tax Considerations" (which is incorporated herein by
reference), we are of the opinion that:
(A) commencing with the Company's taxable year ending December 31, 1999,
the Company qualified and will qualify to be taxed as a REIT pursuant
to sections 856 through 860 of the Code, and the Company's proposed
method of operation will enable it to continue to meet the
requirements for qualification and taxation as a REIT under the Code;
(B) the descriptions of the law and the legal conclusions contained in
the Prospectus under the caption "Federal Income Tax Considerations"
are correct in all material respects, and the discussion contained
therein fairly summarizes the federal tax considerations that are
material to a holder of the Common Shares; and
(C) the Operating Partnership and the Subsidiary Partnerships will be
treated for federal income tax purposes as partnerships and not as
associations taxable as corporations or as publicly traded
partnerships.
We assume no obligation to advise you of any changes in our opinion subsequent
to the delivery of this opinion letter. The Company's qualification and taxation
as a REIT depends upon the Company's ability to meet on a continuing basis,
through actual annual operating and other results, the various requirements
under the Code with regard to, among other things, the sources of its gross
income, the composition of its assets, the level of its distributions to
stockholders, and the diversity of its stock ownership. We will not review on a
continuing basis the Company's compliance with the documents or assumptions set
forth above, or the representations set forth in the Representation Letter.
Accordingly, no assurance can be given that the actual results of the Company's
operations the sources of its income, the nature of its assets, the level of the
Company's
Acadia Realty Trust
April 23, 2003
Page 4
distributions to its stockholders and the diversity of the Company's stock
ownership for any given taxable year will satisfy the requirements for
qualification and taxation as a REIT.
The foregoing opinions are based on current provisions of the Code and the
Regulations, published administrative interpretations thereof, and published
court decisions. The Internal Revenue Service has not issued Regulations or
administrative interpretations with respect to various provisions of the Code
relating to REIT qualification. No assurance can be given that the law will not
change in a way that will prevent the Company from qualifying as a REIT, or the
Operating Partnership or the Subsidiary Partnerships from being classified as
partnerships for federal income tax purposes.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the references to Paul, Hastings,
Janofsky & Walker LLP under the captions "Federal Income Tax Considerations" and
"Legal Matters" in the Prospectus.
The foregoing opinions are limited to the federal income tax matters addressed
herein, and no other opinions are rendered with respect to other federal tax
matters or to any issues arising under the tax laws of any state or locality. We
undertake no obligation to update the opinions expressed herein after the date
of this letter.
Very truly yours,
/s/ Paul, Hastings, Janofsky & Walker LLP
PAUL, HASTINGS, JANOFSKY & WALKER LLP
Exhibit 12.1
Statement Regarding Computation of Ratios of Earnings to Fixed Charges
Statement Regarding Computation of Ratios of Earnings to Fixed Charges
2002 2001 2000 1999 1998
--------------------------------------------------------------
Fixed charges:
Interest expensed $ 11,017 $ 12,370 $ 15,877 $ 13,686 $ 9,532
Interest capitalized 931 372 439 1,299 857
Amortization of capitalized fees related to indebtedness 773 578 649 532 495
Distributions to preferred Operating Partnership unitholders 199 199 199 23 -
--------------------------------------------------------------
Total fixed charges $ 12,920 $ 13,519 $ 17,164 $ 15,540 $ 10,884
==============================================================
Earnings:
Continuing operations before minority interest and income
from equity investees $ 12,986 $ 6,473 $ 6,346 $ 5,939 $ (7,488)
Add:
Total fixed charges above 12,920 13,519 17,164 15,540 10,884
Distributions of income from equity investees 1,049 1,252 1,324 637 -
Subtract:
Capitalized interest (931) (372) (439) (1,299) (857)
Distributions to preferred Operating Partnership unitholders (199) (199) (199) (23) -
--------------------------------------------------------------
Total earnings $ 25,825 $ 20,673 $ 24,196 $ 20,794 $ 2,539
==============================================================
Ratio of Earnings to Fixed Charges 2.00 1.53 1.41 1.34 0.23
==============================================================
Exhibit 23.3
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement and related Prospectus of Acadia Realty Trust for the
registration of $75,000,000 of its common and preferred shares of beneficial
interest and to the incorporation by reference therein of our report dated
February 25, 2003, with respect to the consolidated financial statements and
schedule of Acadia Realty Trust included in its Annual Report on Form 10-K for
the year ended December 31, 2002, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
New York, New York
April 22, 2003