<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 22, 1998
REGISTRATION NO. 333-50513
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 5
TO
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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AMERICA FIRST TAX EXEMPT INVESTORS, L.P.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 47-0810385 6799
(State or other jurisdiction (I.R.S. Employer (Primary
of incorporation or Identification No.) Standard
organization) Industrial
Classification
Code Number)
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SUITE 400, 1004 FARNAM STREET
OMAHA, NEBRASKA 68102
(402) 444-1630
(Address, including ZIP Code, and telephone number, including
area code, of registrant's principal executive offices)
MICHAEL YANNEY
SUITE 400, 1004 FARNAM STREET
OMAHA, NEBRASKA 68102
(402) 444-1630
(Name, address, including ZIP Code, and telephone number, including
area code, of agent for service)
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COPIES TO:
STEVEN P. AMEN, ESQ.
Kutak Rock
1650 Farnam Street
Omaha, Nebraska 68102
(402) 346-6000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC:
As soon as practicable after this Registration Statement becomes effective
and after conditions in the Merger Agreement have been satisfied.
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If any of the securities being registered on the Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: / /
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TREATMENT OF THE NEW FUND AS A PUBLICLY TRADED PARTNERSHIP
The listing of the New Fund's BUCs for trading on The NASDAQ Stock Market
will cause the New Fund to be treated as a "publicly traded partnership" under
Section 7704 of the Code, thus continuing the publicly traded partnership status
of the Existing Fund. A publicly traded partnership is generally taxable as a
corporation unless 90% or more of its gross income is "qualifying" income.
Qualifying income includes interest, dividends, real property rents, gain from
the sale or other disposition of real property, gain from the sale or other
disposition of capital assets held for the production of interest or dividends
and certain other items.
Substantially all of the New Fund's gross income will continue to be
tax-exempt interest income on mortgage bonds, all of which constitutes
qualifying income. Kutak Rock is of the opinion that as long as 90% or more of
the New Fund's gross income consists of qualifying income, the New Fund will be
treated as a partnership for federal income tax purposes. If for any reason less
than 90% of the New Fund's gross income constituted qualifying income, the New
Fund would be taxable as a corporation rather than a partnership for federal
income tax purposes, with the consequences described above in "Partnership
Status."
TAX EXEMPT INTEREST
Kutak Rock is of the opinion that (i) the interest paid on the seven
tax-exempt mortgage bonds held by the Existing Fund is exempt from federal
income taxation and (ii) after completion of the Transaction, distributions made
by the New Fund to BUC holders of interest received from these bonds will be
exempt from federal income taxation.
CONSEQUENCES OF A MERGER
Kutak Rock is of the opinion that the merger of the Existing Fund and the
New Fund pursuant to the terms of the Merger Agreement will be treated as a
tax-free continuation of the Existing Fund for federal income tax purposes.
Accordingly, no gain or loss will be recognized by the Existing Fund, the New
Fund or the BUC holders as a result thereof. The adjusted basis of the New Fund
in the assets acquired from the Existing Fund will be equal to the adjusted
basis of the Existing Fund therein as of the effective date of the Transaction.
Since the New Fund will have the same adjusted basis in the transferred assets
as the Existing Fund, the holding period of the New Fund in the transferred
assets will include the holding period of the Existing Fund in such assets.
Likewise, the BUC holders' adjusted basis in the New Fund BUCs will be equal to
their adjusted basis in the Existing Fund BUCs. A BUC holder will include the
holding period of his or her Existing Fund BUCs in his or her holding period for
the New Fund BUCs.
NONDEDUCTIBILITY OF INTEREST EXPENSE
The Code generally prohibits the deduction of interest on indebtedness that
is either incurred or continued for the purpose of either purchasing or carrying
tax-exempt obligations. In the case of a partnership, the partners are required
to take into account their proportionate share of the tax-exempt obligations
held, and the indebtedness incurred, by the partnership in combination with such
obligations held, or any debt incurred, in their individual capacities. While
the New Fund's assets will consist primarily of tax-exempt mortgage bonds, it
does not intend to incur any significant amounts of indebtedness to purchase or
carry tax-exempt mortgage bonds. However, the New Fund is not prohibited from
borrowing and, to the extent that it does, any interest paid by it with respect
to indebtedness may not be deductible by BUC holders.
TAX ELECTIONS
In the event the New Fund issues additional BUCs, the General Partner
intends to cause the New Fund to make an election under Section 754 of the Code.
The effect of such election will be to have the
55
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 21. EXHIBITS AND FINANCIAL STATEMENTS SCHEDULES
(a) EXHIBITS
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4.1 Form of Beneficial Unit Certificate*
4.2 Form of Agreement of Limited Partnership of the Registrant (included as
Appendix A to Consent Solicitation Statement/Prospectus contained in
Part I hereof)*
4.3 Amended Agreement of Merger, dated June 12, 1998, between the Registrant
and America First Tax Exempt Mortgage Fund Limited Partnership (included
as Appendix B to Consent Solicitation Statement/Prospectus contained in
Part I hereof)*
5.1 Revised opinion of Kutak Rock as to the legality of securities*
8.1 Revised opinion of Kutak Rock as to certain tax matters
23.1 Consent of PricewaterhouseCoopers LLP*
23.2 Consent of Mueller, Prost, Purk & Willbrand, P.C.*
23.3 Consent of Kutak Rock (included in Exhibits 5.1 and 8.1)*
24.1 Powers of Attorney*
99.1 Supplemental Material to be Delivered to BUC Holders*
99.2 Letter to BUC Holders
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* previously filed
II-1
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 5 to this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Omaha, State of Nebraska, on the 21st day of September, 1998.
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AMERICA FIRST TAX EXEMPT INVESTORS, L.P.
By America First Capital Associates Limited
Partnership Two, Its General Partner
By America First Companies L.L.C.,
Its General Partner
By: /s/ MICHAEL YANNEY
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Michael Yanney
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 5 to the Registration Statement has been signed by the following persons in
the capacities indicated on dates indicated opposite their names.
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<CAPTION>
SIGNATURE DATE TITLE
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<C> <C> <S>
/s/ MICHAEL YANNEY Chairman of the Board,
- ------------------------------ September 21, 1998 President and Chief
Michael Yanney Executive Officer
/s/ MICHAEL THESING*
- ------------------------------ September 21, 1998 Secretary and Chief
Michael Thesing Financial Officer
/s/ WILLIAM S. CARTER*
- ------------------------------ September 21, 1998 Manager
William S. Carter
/s/ GEORGE KUBAT*
- ------------------------------ September 21, 1998 Manager
George Kubat
/s/ MARTIN MASSENGALE*
- ------------------------------ September 21, 1998 Manager
Martin Massengale
/s/ ALAN BAER*
- ------------------------------ September 21 ,1998 Manager
Alan Baer
/s/ GAIL WALLING YANNEY*
- ------------------------------ September 21, 1998 Manager
Gail Walling Yanney
/s/ MARIANN BYERWALTER*
- ------------------------------ September 21, 1998 Manager
Mariann Byerwalter
</TABLE>
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*By MICHAEL YANNEY
ATTORNEY-IN-FACT
/s/ MICHAEL YANNEY
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Michael Yanney
</TABLE>
II-2
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EXHIBIT 8.1
September 22, 1998
America First Capital Associates
Limited Partnership Two
Suite 400
1004 Farnam Street
Omaha, NE 68102
Re: America First Tax Exempt Investors, L.P.
Ladies and Gentlemen:
We have acted as special tax counsel to America First Capital Associates
Limited Partnership Two (the "General Partner"), a Delaware limited
partnership which is the general partner of America First Tax Exempt
Investors, L.P., a Delaware limited partnership (the "Partnership"), in
connection with the merger (the "Merger") of America First Tax Exempt
Mortgage Fund Limited Partnership, a Delaware limited partnership (the "Tax
Exempt Partnership"), with and into the Partnership pursuant to the Amended
Agreement of Merger, dated June 12, 1998, by and between the Partnership and
the Tax Exempt Partnership (the "Merger Agreement") under which (i) the
separate existence of the Tax Exempt Partnership will cease, and the
Partnership will be the surviving partnership and will succeed to all of the
assets and liabilities of the Tax Exempt Partnership and (ii) persons holding
Beneficial Unit Certificates representing assigned limited partnership
interests ("BUCs") in the Tax Exempt Partnership will become BUC holders of
the Partnership. As a result thereof, the General Partner and limited
partner of the Tax Exempt Partnership will acquire the same interests in the
Partnership as they had in the Tax Exempt Partnership, and the persons
holding BUCs in the Tax Exempt Partnership will acquire one BUC in the
Partnership for each BUC they held in the Tax Exempt Partnership as of the
effective date of the Merger. In connection therewith, we have been asked by
the General Partner to render an opinion regarding the status of the
Partnership for United States federal income tax purposes and certain federal
income tax considerations relevant to the Merger. Any terms used in this
letter but not herein defined will have the meanings ascribed to them in the
Registration Statement on Form S-4 (the "Registration Statement") filed with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, in connection with the issuance of BUCs of the Partnership and the
solicitation of the consent of the BUC holders of the Tax Exempt Partnership
to the Merger.
<PAGE>
American First Capital Associates
Limited Partnership Two
September 22, 1998
Page 2
In rendering our opinion, we have examined certain documents, including:
1. the Registration Statement, including the Consent Solicitation
Statement/Prospectus contained therein (the "Prospectus");
2. the form of Agreement of Limited Partnership of the Partnership
(the "Partnership Agreement");
3. the Certificate of Limited Partnership of the Partnership, as filed
with the Secretary of State of the State of Delaware on April 2, 1998, and
4. the Merger Agreement.
As to various questions of fact which are material to the opinion set forth
in this letter, we have relied upon certain representations, statements and
information set forth in the foregoing documents. In addition, we have made
such other investigations as we deemed necessary in connection with our opinion.
As to matters of federal income tax law, we have based our opinion upon the
provisions of the Internal Revenue Code of 1986, as amended (the "Code"), the
legislative history of the Code, the Treasury Department Income Tax Regulations
promulgated and proposed under the Code (the "Regulations") and the
interpretations of the Code and the Regulations by the Internal Revenue Service
(the "Service") and by the courts as of the date of this letter. The provisions
of the Code or of the Regulations may be amended or the interpretations of the
Service or of the courts may change in a manner which would affect our opinions,
and any such changes may have retroactive effect.
DISCUSSION OF PARTNERSHIP STATUS
The Partnership was formed as a limited partnership under the Delaware
Revised Uniform Limited Partnership Act on April 2, 1998. We have been advised
by the General Partner that it has not filed, and will not file, an election
with the Service for the Partnership to be treated as an association taxable as
a corporation. Accordingly, we are of the opinion that the Partnership will be
treated as a partnership for federal income tax purposes and that the holders of
BUCs of the Partnership will be recognized as partners for federal income tax
purposes.
ADDITIONAL FEDERAL INCOME TAX CONSIDERATIONS
In addition to the foregoing opinion, we also confirm each of our opinions
set forth in the Prospectus under the heading "CERTAIN MATERIAL FEDERAL INCOME
TAX CONSEQUENCES OF THE TRANSACTION."
<PAGE>
American First Capital Associates
Limited Partnership Two
September 22, 1998
Page 3
We are rendering no opinions regarding federal income tax or other matters
except for those expressly set forth in this letter. This letter is being
furnished in connection with the Merger to you solely for your benefit and the
benefit of persons holding BUCs, and it may not be
used, circulated, relied upon, filed or quoted by or to any other person, or
used for any other purpose, without our prior written consent.
<PAGE>
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to our name under the heading "LEGAL
MATTERS" therein. In giving such consent, we do not hereby admit that we come
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Securities and Exchange Commission
promulgated pursuant thereto.
Sincerely,
KUTAK ROCK
