<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 10, 1999.
REGISTRATION NO. 333-52117
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 7
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERICA FIRST REAL ESTATE INVESTMENT PARTNERS, L.P.
(Exact name of registrant as specified in its charter)
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DELAWARE 6513 39-1965590
(State or other (Primary Standard Industrial (I.R.S. Employer Identification No.)
jurisdiction of organization) Classification Number)
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1004 FARNAM STREET, SUITE 400
OMAHA, NEBRASKA 68102
(402) 444-1630
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
MICHAEL B. YANNEY
1004 FARNAM STREET, SUITE 400
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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WITH COPIES TO:
PAUL E. BELITZ, ESQ.
Kutak Rock
717 17th Street, Suite 2900
Denver, Colorado 80202
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APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE 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 the securities being registered on this 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. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering / /
If this Form is post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8 OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8, MAY
DETERMINE.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS/CONSENT
SOLICITATION STATEMENT
ITEM 20. INDEMNIFICATION
The Delaware Revised Uniform Limited Partnership Act provides that a limited
partnership may indemnify and hold harmless any partner or other person from and
against any and all claims and demands whatsoever, subject to any limitations
contained in its limited partnership agreement. The company's limited
partnership agreement provides generally that the general partner is indemnified
from losses, liabilities or damages relating to acts performed or omitted to be
performed in good faith and in the best interests of the company, provided the
conduct did not constitute fraud, gross negligence, willful misconduct, breach
of a fiduciary duty or a breach of obligations under the company's limited
partnership agreement. Such indemnification also includes expenses and
attorney's fees, which expenses and fees may be advanced as incurred.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) The following is a complete list of exhibits filed as part of the
Registration Statement. For electronic filing purposes only, this registration
statement contains Exhibit 27.1, the Financial Data Schedule. Exhibit numbers
correspond to the numbers in the Exhibit Table of Item 601 of Regulation S-K.
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EXHIBIT NO. DESCRIPTION
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2.01 Form of Agreement and Plan of Merger to be entered into by and among the partnerships and the company
is incorporated herein by reference to Appendix A to the Prospectus/ Consent Solicitation Statement.
3.01 Certificate of Limited Partnership of the company.(1)
3.02 Limited Partnership Agreement of the company.(1)
3.03 Form of Amended and Restated Limited Partnership Agreement of the company is incorporated herein by
reference to Appendix D to the Prospectus/Consent Solicitation Statement.
3.04 Limited Partnership Agreement and Amended Certificate of Limited Partnership of Capital Source
L.P.(1)
3.05 Limited Partnership Agreement and Amended Certificate of Limited Partnership of Capital Source II
L.P.-A.(1)
3.06 Amended Certificate of Limited Partnership of Capital Source L.P.(1)
3.07 Amended Certificate of Limited Partnership of Capital Source II L.P.-A(1)
3.08 Amendment to Limited Partnership Agreement of Capital Source L.P.(1)
3.09 Amendment to Limited Partnership Agreement of Capital Source II L.P.-A.(1)
4.01 The Certificate of Limited Partnership and Amended and Restated Agreement of Limited Partnership of
the company included as Exhibits 3.01 and 3.03 are incorporated herein by reference.
4.02 Form of indenture between the company and the trustee relating to the notes being registered pursuant
to this Registration Statement, including the form of Variable Rate Junior Notes Callable On or After
the Date of Issuance and the form of promissory notes.(1)
4.03 Form of Units Certificate of the company.(1)
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II-1
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EXHIBIT NO. DESCRIPTION
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4.04 Form of Variable Rate Junior Notes Callable On or After the Date of Issuance and Promissory Notes of
the company are included in Exhibit 4.02.
5.01 Opinion of Kutak Rock as to the legality of the units and the validity of the notes.(1)
8.01 Opinion of Kutak Rock as to certain tax matters.(1)
12.01 Ratio of Earnings to Fixed Charges.(1)
23.01 Consents of Independent Accountants.(1)
23.02 Consent of Kutak Rock (included in Exhibits 5.01 and 8.01).
23.03 Consent of Valuation Research Corporation to being named in the Registration Statement.(1)
23.04 Consent of Sutro & Co., Inc. to being named in the Registration Statement.(1)
24.01 The Power of Attorney, included on Page II-4 of the Registration Statement filed on July 21, 1999, is
incorporated herein by reference.
25.01 Statement of Eligibility of Trustee.(1)
27.01 Financial Data Schedule of the Company.(1)
99.01 Market Value Report of Valuation Research Corporation.(1)
99.02 Form of consent card for Capital Source I and Capital Source II.(1)
99.03 The Fairness Opinion of Sutro & Co., Inc. is incorporated herein by reference from Appendix B to the
Prospectus/Consent Solicitation Statement.
99.04 Solicitation Materials.(2)
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(1) Previously filed.
(2) Filed herewith.
(b) Not Applicable.
(c) The Fairness Opinion of Sutro & Co., Inc. is included as Appendix B
to the Prospectus/ Consent Solicitation Statement. The Market Value Report
of Valuation Research Corporation is included as Exhibit 99.01 to this
Registration Statement.
ITEM 22. UNDERTAKINGS
A. The Company hereby undertakes the following:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(b) 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; and
(c) 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.
(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
II-2
<PAGE>
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. (1) The undersigned Registrant hereby undertakes as follows: that prior
to any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this Registration Statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form.
(2) The undersigned Registrant undertakes that every prospectus
(i) that is filed pursuant to paragraph (1) immediately preceding, or
(ii) that purports to meet the requirements of Section 10(a)(3) of the
Securities Act of 1933 and is used in connection with an offering of
securities subject to Rule 415, will be filed as part of an amendment to the
registration statement and will not be used until such amendment is
effective, and that, for purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
C. 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 foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
D. The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the Prospectus/Consent
Solicitation Statement pursuant to Items 4, 10(b), 11 or 13 of this Form, within
one business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date of
this Registration Statement through the date of responding to the request.
E. The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Pre-Effective Amendment No. 7 to the Form S-4
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Omaha, State of Nebraska, on November 10, 1999.
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AMERICA FIRST REAL ESTATE INVESTMENT
PARTNERS, L.P.
By: America First Capital Source I L.L.C.,
general partner
By: America First Companies L.L.C., sole
member By: /s/ MICHAEL B. YANNEY
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Michael B. Yanney,
CHIEF EXECUTIVE OFFICER, PRESIDENT
AND CHAIRMAN OF THE BOARD OF MANAGERS
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Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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NAME TITLE DATE
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<C> <S> <C>
/s/ MICHAEL B. YANNEY Chief Executive Officer, November 10, 1999
- ------------------------------ President and Chairman
Michael B. Yanney of the Board of Managers
of America First
Companies L.L.C.
*** Chief Financial Officer, November 10, 1999
- ------------------------------ Principal Accounting
Michael Thesing Officer, Secretary,
Treasurer, and Manager
of America First
Companies L.L.C.
*** Manager of America First November 10, 1999
- ------------------------------ Companies L.L.C.
Martin A. Massengale
*** Manager of America First November 10, 1999
- ------------------------------ Companies L.L.C.
Alan Baer
*** Manager of America First November 10, 1999
- ------------------------------ Companies L.L.C.
Gail Walling Yanney
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NAME TITLE DATE
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<C> <S> <C>
*** Manager of America First November 10, 1999
- ------------------------------ Companies L.L.C.
Mariann Byerwalter
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***By: /s/ MICHAEL B. YANNEY
-------------------------
Michael B. Yanney,
AS ATTORNEY-IN-FACT
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EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION
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2.01 Form of Agreement and Plan of Merger to be entered into by and among the partnerships and the company
is incorporated herein by reference to Appendix A to the Prospectus/ Consent Solicitation Statement.
3.01 Certificate of Limited Partnership of the company.(1)
3.02 Limited Partnership Agreement of the company.(1)
3.03 Form of Amended and Restated Limited Partnership Agreement of the company is incorporated herein by
reference to Appendix D to the Prospectus/Consent Solicitation Statement.
3.04 Limited Partnership Agreement and Amended Certificate of Limited Partnership of Capital Source
L.P.(1)
3.05 Limited Partnership Agreement and Amended Certificate of Limited Partnership of Capital Source II
L.P.-A.(1)
3.06 Amended Certificate of Limited Partnership of Capital Source L.P.(1)
3.07 Amended Certificate of Limited Partnership of Capital Source II L.P.-A(1)
3.08 Amendment to Limited Partnership Agreement of Capital Source L.P.(1)
3.09 Amendment to Limited Partnership Agreement of Capital Source II L.P.-A.(1)
4.01 The Certificate of Limited Partnership and Amended and Restated Agreement of Limited Partnership of
the company included as Exhibits 3.01 and 3.03 are incorporated herein by reference.
4.02 Form of indenture between the company and the trustee relating to the notes being registered pursuant
to this Registration Statement, including the form of Variable Rate Junior Notes Callable On or After
the Date of Issuance and the form of promissory notes.(1)
4.03 Form of Units Certificate of the company.(1)
4.04 Form of Variable Rate Junior Notes Callable On or After the Date of Issuance and Promissory Notes of
the company are included in Exhibit 4.02.
5.01 Opinion of Kutak Rock as to the legality of the units and the validity of the notes.(1)
8.01 Opinion of Kutak Rock as to certain tax matters.(1)
12.01 Ratio of Earnings to Fixed Charges.(1)
23.01 Consents of Independent Accountants.(1)
23.02 Consent of Kutak Rock (included in Exhibits 5.01 and 8.01).
23.03 Consent of Valuation Research Corporation to being named in the Registration Statement.(1)
23.04 Consent of Sutro & Co., Inc. to being named in the Registration Statement.(1)
24.01 The Power of Attorney, included on Page II-4 of the Registration Statement filed on July 21, 1999, is
incorporated herein by reference.
25.01 Statement of Eligibility of Trustee.(1)
27.01 Financial Data Schedule of the Company.(1)
99.01 Market Value Report of Valuation Research Corporation.(1)
99.02 Form of consent card for Capital Source I and Capital Source II.(1)
99.03 The Fairness Opinion of Sutro & Co., Inc. is incorporated herein by reference from Appendix B to the
Prospectus/Consent Solicitation Statement.
99.04 Solicitation Materials.(2)
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(1) Previously filed.
(2) Filed herewith.
<PAGE>
Exhibit 99.04
Form of Solicitation Materials
___________, 1999
Dear Investor:
The general partners of Capital Source L.P. and Capital Source II L.P.-A are
seeking your consent to a merger of the two partnerships, changing the
business plan of the two partnerships and listing the units of the new
company on the NASDAQ National Market.
The proposed merger will:
- - offer liquidity to sell or purchase additional units;
- - offer the company the opportunity to grow by increasing assets through
leverage and addition of new equity; and
- - create the opportunity to increase cash distributions, which may add to
market value.
In evaluating the proposed merger, we strongly encourage you to carefully
review the enclosed prospectus/consent solicitation statement. The proposed
merger has risks and benefits which are described both in the enclosed
question and answer materials, and more fully in the enclosed
prospectus/consent solicitation statement. As described in the enclosed
materials, we have some economic interests in the proposed merger.
We, as the general partners of your partnership, encourage you to vote
"Yes" in favor of the proposed merger.
BACKGROUND
The two partnerships were formed in the mid-1980s by the then general
partners, TIG Insured Mortgage Equities I and II and Hutton Insured Mortgage
Equities I and II. Prior to our involvement, both TIG and Hutton gave up
their interests in the general partners to other entities. In 1997, America
First Companies purchased controlling interest in the general partners.
Since that time, we have considered various options to offer you for the
future of the Capital Source partnerships.
Over the years, the partnerships have paid consistent distributions. Some of
the distributions were in the form of return of capital. If the partnerships
were liquidated now, it would be impossible for the partnerships to pay back
original capital, as a portion
<PAGE>
of the distribution was a return of capital. The new plan creates an
opportunity to increase capital.
OPPORTUNITY FOR GROWTH
The new plan will allow the new company to acquire additional properties
through the use of reasonable leverage and the addition of new equity. These
new properties should increase cash flows and, if distributions are
increased, the market value should, in time, reflect that increase.
The listing on NASDAQ will give greater liquidity, which was rejected by most
limited partners some time ago, to those partners who wish to sell their
units or purchase additional units.
Implementing the new business plan will take time. We will be subject to
interest rate moves, as all real estate investments are, but we are
confident, based on experience, that we have the staff and market environment
to succeed.
Please read the enclosed materials, which go into greater detail, and call
our investor services at 1-800-239-8787 if you have questions.
Sincerely,
<PAGE>
QUESTIONS AND ANSWERS
Q: What is the proposed transaction?
A: We, as the general partners of Capital Source L.P. and Capital Source II
L.P.-A, are proposing a merger of the two partnerships with and into a new
company named America First Real Estate Investment Partners, L.P., a newly
formed Delaware limited partnership. The new company will have the long-term
objective of generating increased income through the acquisition of
additional multifamily residential properties.
Q: Why are the general partners proposing this transaction?
A: We have proposed the transaction in order to enhance the liquidity of
your investment and to increase the cash flow and net asset values of the
partnerships. We plan to accomplish this by:
1. Listing the new company's units on the NASDAQ;
2. Increasing the new company's assets through leverage and raising new
equity to acquire additional multifamily residential properties; and
3. Actively managing the makeup of the new company's real estate portfolio
with the objective of increasing cash flow from operations with the
expectation of increasing distributions to investors.
We believe that completion of the proposed transaction and achieving the new
company's business plan will permit you to realize a value greater than your
investment in the partnerships, as opposed to liquidating your partnership or
continuing your partnership unchanged. However, we can not assure you that
the new company's business plan will be successfully achieved.
Q: What are the general partners asking me to do?
A: After you have reviewed the enclosed prospectus/consent solicitation
statement relating to the proposed transaction, please indicate your vote on
the consent card, sign it and return it in the enclosed envelope.
We, as the general partners of the partnerships, strongly recommend that you
vote "YES" in favor of the transaction.
We urge you to return your consent card as soon as possible. Your vote IS
IMPORTANT. If the holders of a majority of the BACs in each fund approve the
transaction, you will be notified and will receive further instructions.
<PAGE>
Q: What will be the business plan of the company?
A: The company's plan is to acquire additional properties through
leveraging of existing assets and, in the longer term, issuing new equity.
The new properties should give the general partner the chance to increase
cash flow and market value.
The company's primary business objective will be to provide unit holders with
increased distributions, an increase in net asset value and to increase the
liquidity and market value of the units of the company. The company expects
to achieve this objective by listing the units on the NASDAQ and by making
equity investments, primarily in multifamily residential properties. There
can be no assurance, however, that this objective will be met.
Q: How does the business plan of the company differ from the plan of the
original partnerships?
A: The original partnerships do not have the ability to raise additional
capital to acquire additional multifamily properties. The company will have
the ability to more actively manage its real estate portfolio as compared to
the partnerships. It will have the ability to raise capital and invest in
additional properties, thereby growing the portfolio. This should allow for
an increase in cash flow and, over time, an increase in the amount available
for distribution to investors.
Q: Why not just liquidate the existing partnerships?
A: Liquidation would be time consuming and expensive. In today's relatively
low interest rate environment, the general partners believe they can finance
new properties, increase cash flow and build unit value by doing so. If the
company is successful, the units may trade in the open market at values
higher than current liquidation value.
Q: How many units of the new company will I receive if the transaction is
completed and how will my distribution be affected?
A: If you are currently a holder of Capital Source BACs, you will receive
1.3957 BACs of the new company for each BAC of Capital Source you hold. If
you are currently a holder of Capital Source II BACs, you will receive .7620
BACs of the new company for each unit of Capital Source II you hold. The new
distribution amount is expected to be approximately $.7236 per unit annually,
paid on a quarterly basis. For example:
If you held 100 BACs of Capital Source, you would receive 139 units of the
new company. You would receive $.7236 for each unit annually, for a total
annual distrib ution of $1.01 per Capital Source BAC.
If you held 100 BACs of Capital Source II, you would receive 76 units of the
new company. You would receive $.7236 for each unit annually, for a total
annual
<PAGE>
distribution of $.55 per Capital Source II BAC, an increase of $.20 per BAC
over the current distribution rate.
Q: When the units of the new company begin trading, do you expect them to
trade near the liquidation value?
A: It is impossible to be certain how the units will trade. History of
similar partnership transactions suggests they will trade down as some unit
holders may wish to liquidate. It will take time to see added unit value
created through additional property acquisitions.
Q: What are the benefits of voting for the transaction?
A: In deciding whether to recommend the transaction to you, and in
structuring its terms, the general partners considered the benefits to be
derived as a result of the transaction. We consider those benefits to be:
- - Substantially enhanced liquidity potential
- - Potential for company growth; enhanced access to capital
- - Waiver by affiliates of amounts potentially payable by some of the
operating Partnerships
- - Diversification of assets
Q: What are the risks involved in this transaction?
A: There are business risks associated with the transaction:
- - The units may trade at prices below the value of the company's assets and
the $10 per unit price arbitrarily assigned for the sole purpose of
allocating the units in the transaction. We do not expect a public market
for the notes to develop. If the notes are sold, they may sell at prices
substantially below their issuance price.
- - We initiated and participated in the structuring of the transaction and
have conflicts of interests with respect to its completion.
- - An unaffiliated third party has not been retained to represent your
interests in the transaction. Had a representative been retained, they may
have been able to negotiate, on your behalf, more favorable terms for the
transaction and different consideration may have been distributed to you.
- - If the transaction is completed, compensation, reimbursements and
distributions to our successor may increase.
- - There can be no guarantee of the level of the company's future cash
distributions.
- - The company is newly formed and has no operating history.
- - If you vote "NO" against the transaction, but your partnership approves
it, you do not have any appraisal or other dissenters' rights under Delaware
law and none will be offered in the transaction.
- - There are alternatives to the transaction. By approving the transaction,
you will effectively preclude the pursuit of some of the alternatives.
<PAGE>
- - The company intends to use debt financing to increase its real estate
asset portfolio. An increase in debt may increase the possibility of
default on the company's obligations. This could affect the company's
ability to pay distributions to you.
- - If your partnership approves the transaction, you will be bound even if
you vote "NO" against the transaction.
- - If you choose to receive notes, you will not hold an equity interest in
the company and will not be ab le to participate in the company's growth or
benefit from any increases in the value of the units. The notes are
unsecured obligations of the company and may be redeemed before maturity at
the company's option.
Q: Do I have any options other than receiving units?
A: You may elect to receive either units of limited partner interests in the
company or the company's variable rate junior notes. The notes are being
offered as an alternative to the units. The notes will not be listed on a
national securities exchange, will be unsecured obligations of the company
and will, in most cases, rank junior to all other debt of the company. The
interest rate on the notes will be adjusted annually and the notes may be
redeemed at any time at the company's option. If the notes had been issued
on September 30, 1999, the interest rate would have been 6.52 percent.
Q: Do the general partners have any interest in the transaction?
A: We participated in the initiation and structuring of the transaction and
expect to receive benefits as a result of its completion. We will hold a 1%
interest in the company as its general partner, which continues our 1%
interest in the partnerships. We will also receive management and
administrative fees from the company as compensation for serving as its
general partner. In addition, the company will retain America First
Properties Management L.L.C., one of our affiliates and the entity that
currently manages the partnerships' properties, to manage the company's
properties.
