UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K/A
(Amendment
No. 1)
x ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
For
the fiscal year ended December 31, 2008
OR
o TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE
ACT OF 1934
For
the transition period
from to
Commission
File Number: 000-24843
AMERICA
FIRST TAX EXEMPT INVESTORS, L.P.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
47-0810385
|
|
(State
or other jurisdiction of incorporation or organization)
|
(I.R.S.
Employer Identification No.)
|
|
|
|
|
1004
Farnam Street, Suite 400
|
Omaha,
Nebraska 68102
|
|
(Address
of principal executive offices)
|
(Zip
Code)
|
|
|
|
|
(402)
444-1630
|
|
(Registrant's
telephone number, including area
code)
|
Securities
registered pursuant to Section 12(b) of the Act:
Beneficial
Unit Certificates representing assignments of limited partnership interests
in
America
First Tax Exempt Investors, L.P. (the “BUCs)
Securities
registered pursuant to Section 12(g) of the Act:
None
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. YES o NO x
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section (15) of the Act. YES o NO x
Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. YES x NO o
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K (§229.405 of the chapter) is not contained herein, and will not
be contained, to the best of the registrant’s knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting
company. See definition of “large accelerated filer”, “large
accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
|
Large
accelerated filer o
|
Accelerated
filer x
|
Non-
accelerated filer o
|
Smaller
reporting company o
|
|
|
|
(do
not check if a smaller reporting company)
|
|
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). [ ]
The
aggregate market value of the registrant’s BUCs held by non-affiliates based on
the final sales price of the BUCs on the last business day of the registrant’s
most recently completed second fiscal quarter was $86,493,729.
DOCUMENTS
INCORPORATED BY REFERENCE
None
Explanatory
Note
America
First Tax Exempt Investors, L.P. (the “Partnership”) is amending its Annual
Report on Form 10-K for the year ended December 31, 2008 as filed on March
4, 2009 (the “Original Report”) in order to properly reflect the ownership of
BUCs representing assigned limited partnership interests in the Partnership as
of December 31, 2008 by two of the managers of the Burlington Capital Group, LLC
which is the general partner of America First Capital Associates Limited
Partnership Two, the general partner of the Partnership. This
amendment is reflected in the revisions to Part III, Item 12 of this
amended report. After submission of the Original Filing it was
determined that additional BUCs had been acquired in the fourth quarter of 2008
by a self-employment retirement trust in which these managers have an interest,
but that reports on Form 4 had inadvertently not been filed for this
acquisition under Section 16 of the Securities Act of 1934, as
amended. Accordingly, the Partnership is also amending the Original
Report to reflect the late reporting of this acquisition. This
amendment is reflected on the cover page of this amended report and in Item 10
hereof under the heading “Section 16(a) Beneficial Ownership Reporting
Compliance.” The remaining information in Items 10 and 12 in
this amended report is the same as that reported in the Original
Report.
Item 10. Directors, Executive Officers and
Corporate Governance.
The
Partnership has no directors or officers of its own. Management of
the Partnership consists of the general partner of the Partnership, America
First Capital Associates Limited Partnership Two ("AFCA 2") and its general
partner, The Burlington Capital Group LLC (formerly America First Companies,
L.L.C.) (“Burlington”).
The
following individuals are the officers and managers of Burlington, and each
serves for a term of one year. BUC holders have no right to nominate
or elect managers of Burlington.
|
Name
|
|
Position
Held
|
|
Position
Held Since
|
|
Michael
B. Yanney
|
|
Chariman
Emeritus of the Board and Manager
|
|
2008/1984
|
|
Lisa
Y. Roskens
|
|
Chairman
of the Board President, Chief Executive Officer and
Manager
|
|
2008/2001/2000/1999
|
|
Michael
J. Draper
|
|
Chief
Financial Officer
|
|
2004
|
|
Mariann
Byerwalter
|
|
Manager(2)
|
|
1997
|
|
Dr.
William S. Carter
|
|
Manager(2)
|
|
2003
|
|
Patrick
J. Jung
|
|
Manager(1)(2)
|
|
2003
|
|
George
H. Krauss
|
|
Manager
|
|
2001
|
|
Dr.
Martin A. Massengale
|
|
Manager(1)(2)
|
|
1994
|
|
Dr.
Gail Walling Yanney
|
|
Manager
|
|
1996
|
|
Clyaton
K. Yeutter
|
|
Manager(1)(2)
|
|
2001
|
(1) Member of the Burlington
Audit Committee. The Board of Managers has designated Mr. Jung as the “audit
committee financial expert” as such term is defined in Item 401(h) of SEC
Regulation S-K.
(2) Determined
to be independent under both Section 10A of the Securities Act of 1934 and under
the NASDAQ Marketplace rules.
Michael
B. Yanney, 75, Chairman Emeritus, served as the Chairman of the Board of
Burlington and its predecessors from 1984 through 2008. From 1977
until the organization of Burlington in 1984, Mr. Yanney was
principally engaged in the ownership and management of commercial
banks. From 1961 to 1977, Mr. Yanney was employed by Omaha National
Bank and Omaha National Corporation (now part of U.S. Bank), where he held
various positions, including the position of Executive Vice President and
Treasurer of the holding company. Mr. Yanney also serves as a member
of the boards of directors of Level 3 Communications, Inc., Streck Laboratories,
and Magnum Resources, Inc. Mr. Yanney is the husband of Gail
Walling Yanney and the father of Lisa Y. Roskens.
Lisa Y.
Roskens, 42, is the Chairman of the Board of Burlington, Chief Executive Officer
and President of Burlington. From 1999 to 2000, Ms. Roskens was
managing Director of Twin Compass, LLC. From 1997 to 1999, Ms.
Roskens was employed by Inacom Corporation where she held the position of
Director of Business Development and Director of Field Services
Development. From 1995 to 1997, Ms. Roskens served as Finance
Director for the U.S. Senate campaign of Senator Charles Hagel of
Nebraska. From 1992 to 1995, Ms. Roskens was an attorney with the
Kutak Rock LLP law firm in Omaha, Nebraska, specializing in commercial
litigation. Ms. Roskens is the daughter of Michael B. Yanney and Gail
Walling Yanney.
Michael
J. Draper, 43, is Chief Financial Officer of Burlington. From April
2004 to September 2004, he was the Director of Finance and Accounting for
Burlington. From April 2000 through March 2004, he was employed at
Transgenomic, Inc., where he served as Chief Financial Officer and prior to that
as Controller. Prior to Transgenomic, Mr. Draper was Vice President
of Accounting and Finance for MSI Systems Integrators for over 2 years and
was with Deloitte & Touche LLP for over eight years.
Mariann
Byerwalter, 48, is Chairman of JDN Corporate Advisory LLC. She was
Vice President of Business Affairs and Chief Financial Officer of Stanford
University from 1996 to 2001. Ms. Byerwalter was Executive Vice
President of America First Eureka Holdings, Inc. ("AFEH") and EurekaBank from
1988 to January 1996. Ms. Byerwalter was Chief Financial Officer and
Chief Operating Officer of AFEH, and Chief Financial Officer of EurekaBank from
1993 to January 1996. She was an officer of BankAmerica Corporation
and its venture capital subsidiary from 1984 to 1987. She served as
Vice President and Executive Assistant to the President of Bank of America and
was a Vice President in the bank's Corporate Planning and Development
Department. She was also on the Stanford Board of Trustees from 1992
to 1996 and was re-appointed to such in 2002. Ms. Byerwalter
currently serves on the board of directors of LookSmart, Inc., Redwood Trust,
Inc., SRI International, the PMI Group Inc., the Stanford Hospital and
Clinics, the Lucile Packard Children’s Hospital and certain investment companies
affiliated with Charles Schwab Corporation.
Dr.
William S. Carter, 82, is retired from medical practice. He is a
graduate of Butler University and the Nebraska University College of
Medicine. He served his residency at the University of Missouri and
was appointed a diplomat of the American Board of Otorhinolaryngology. He was in
private practice in Omaha, Nebraska, until 1993. He is currently on the board of
directors of Murphy Drug Co. and is a director of the Happy Hollow Club in Omaha
and the Thunderbird Club in Rancho Mirage, California.
Patrick
J. Jung, CPA, 61, currently is the Chief Operating Officer with Surdell
Partners, LLC. Prior to joining Surdell, Mr. Jung was with KPMG LLP
for 30 years. During that period, he served as a partner for 20 years
and as the managing partner of the Nebraska business unit for the last six
years. Mr. Jung also serves on the boards of directors of Werner
Enterprises, Inc, including its audit and compensation committees, and Supertel
Hospitality, Inc, including its audit and nominating committees.
George H.
Krauss, 67, has been a consultant to Burlington since 1996. Mr.
Krauss was also of counsel to Kutak Rock LLP, a national law firm headquartered
in Omaha, Nebraska until December 2006. Mr. Krauss was associated
with Kutak Rock LLP since 1972 and served as its managing partner from 1983 to
1993. Mr. Krauss also serves on the board of directors of MFA
Mortgage Investments, Inc. and InfoUSA, Inc.. Mr. Krauss is a member of the
compensation committees, corporate governance and nominating committees and
audit committees of both such companies.
Dr.
Martin A. Massengale, 75, is President Emeritus of the University of Nebraska,
Director of the Center for Grassland Studies and a Foundation Distinguished
Professor. Prior to becoming President Emeritus in 1994, he served as Interim
President from 1989 to 1991 and as President until 1994, as Chancellor of the
University of Nebraska Lincoln from 1981 until 1991 and as Vice Chancellor for
Agriculture and Natural Resources from 1976 to 1981. Prior to that
time, he was a professor and associate dean of the College of Agriculture at the
University of Arizona. Dr. Massengale currently serves on the board
of managers of AAFL Enterprises, LLC, including as a member of its executive
committee and the chairman of its communications committee.
Dr. Gail
Walling Yanney, 71, is a retired physician. Dr. Yanney practiced
anesthesiology and was the Executive Director of the Clarkson Foundation until
October of 1995. In addition, she was a director of FirsTier Bank,
N.A., Omaha, Nebraska, prior to its merger with First Bank, N.A. Dr.
Yanney is the wife of Michael B. Yanney and the mother of Lisa Y.
Roskens.
Clayton
K. Yeutter, 78, is Senior Advisor – International Trade to Hogan & Hartson,
a Washington D.C. law firm. From 1978 to 1985 he served as the
President and Chief Executive Officer of the Chicago Mercantile
Exchange. Mr. Yeutter served as U.S. Secretary of Agriculture from
1989 to 1991, and has served in cabinet and sub-cabinet posts under four U.S.
Presidents. Mr. Yeutter currently serves on the board of directors of
Neogen Corp. and American Commercial Lines, Inc.
Section
16(a) Beneficial Ownership Reporting Compliance
Section
16(a) of the Securities Exchange Act of 1934 requires the managers and executive
officers of Burlington and persons who own more than 10% of the Partnership's
BUCs to file reports of their ownership of BUCs with the SEC. Such
officers, managers and BUC holders are required by SEC regulation to furnish the
Partnership with copies of all Section 16(a) reports they file. Based
solely upon review of the copies of such reports received by the Partnership and
written representations from each such person who did not file an annual report
with the SEC (Form 5) that no other reports were required, the Partnership
believes that there was compliance for the year ended December 31, 2008 with all
Section 16(a) filing requirements applicable to such executive officers,
managers and beneficial owners of BUCs, except that Michael Yanney, Chairman
Emeritus of the Board and a manager of Burlington and his spouse Dr. Gail
Walling Yanney, a manager of Burlington, filed late reports on Form 4 with
respect to the acquisition of 7,800 BUCs on October 7, 2008 by a self-employment
retirement trust maintained by Dr. Yanney. The reports on Form 4
for this transaction were filed on March 9, 2009.
Code
of Ethical Conduct and Code of Conduct
Burlington
has adopted the Code of Ethical Conduct for its senior executive and financial
officers as required by Section 406 of the Sarbanes-Oxley Act of
2002. As such, this Code of Ethical Conduct covers all executive
officers of Burlington, who perform such duties for the
Partnership. Burlington has also adopted the Code of Conduct
applicable to all directors, officers and employees which is designed to comply
with the listing requirements of the NASDAQ Stock Market. Both the
Code of Ethical Conduct and the Code of Conduct are available on the
Partnership’s website at www.ataxfund.com.
Item
12. Security Ownership of Certain Beneficial Owners and
Management.
(a) No
person is known by the Partnership to own beneficially more than 5% of the
Partnership's BUCs.
(b) The
Partnership does not have any directors or officers of its
own. Management of the Partnership consists of the general partner of
the Partnership, and its general partner, Burlington. The following
table and notes set forth information with respect to the beneficial ownership
of the Partnership’s BUCs by each of the managers and executive officers of
Burlington and by such persons as a group. Unless otherwise
indicated, the information is as of December 31, 2008, and is based upon
information furnished to us by such persons. Unless otherwise noted,
all persons listed in the following table have sole voting and investment power
over the BUCs they beneficially own and own such BUCs directly. For
purposes of this table, the term “beneficial owner” means any person who,
directly or indirectly, has or shares the power to vote, or to direct the voting
of, a BUC or the power to dispose, or to direct the disposition of, a BUC or has
the right to acquire BUCs within 60 days.
|
|
Number
of BUCs Beneficially Owned
|
|
|
Michael
B. Yanney, Chairman Emeritus and Manager of Burlington
|
300,300(1)
|
2.2%
|
|
Lisa
Y. Roskens, Chairman, President, Chief Executive Officer and Manager of
Burlington
|
280,000(2)
|
2.1%
|
|
Michael
J. Draper, Chief Financial Officer of Burlington
|
2,000
|
*
|
|
Mariann
Byerwalter, Manager of Burlington
|
0
|
—
|
|
Dr.
William S. Carter, Manager of Burlington
|
0
|
—
|
|
Patrick
J. Jung, Manager of Burlington
|
0
|
—
|
|
George
H. Krauss, Manager of Burlington
|
0
|
—
|
|
Dr.
Martin A. Massengale, Manager of Burlington
|
0
|
—
|
|
Dr.
Gail Walling Yanney, Manager of Burlington
|
300,300(3)
|
2.2%
|
|
Clayton
K. Yeutter, Manager of Burlington
|
|
—
|
|
All
current executive officers and Managers of Burlington as a group (10
persons)
|
302,300
|
2.2%
|
______________
* denotes ownership
of less than 1%.
(1) Consists of 12,500 BUCs
held by Mr. Yanney’s spouse, Dr. Gail Walling Yanney, 7,800 BUCs owned in a
self-employment retirement trust established by his spouse, and 280,000 BUCs
held by Burlington. Mr. Yanney has a beneficial ownership
interest in, and is a manager and Chairman Emeritus of, Burlington and is deemed
to have a pecuniary interest in the BUCs owned by it due to his ownership
interest in Burlington.
(2) Consists of 280,000 BUCs
held by the Burlington. Ms. Roskens has a beneficial ownership
interest in, and is a manager, Chairman, President, and Chief Executive Officer
of, Burlington and is deemed to have a pecuniary interest in the BUCs owned by
it due to her ownership interest in Burlington.
(3) Consists of 12,500 BUCs
held directly by Dr. Yanney, 7,800 BUCs owned in a self-employment retirement
trust established by Dr. Yanney and 280,000 BUCs held by
Burlington. Dr. Yanney has a beneficial ownership interest in,
and is a manager of, Burlington and is deemed to have a pecuniary interest in
the BUCs owned by it due to her ownership interest in
Burlington.
Effective
January 1, 2008, Burlington had made open market purchases of BUCs pursuant to a
prearranged trading plan established in accordance with the guidelines specified
by Rule 10b5-1 under the Securities Exchange Act of
1934. Burlington may acquire up to $2.0 million of BUCs through this
trading plan. As of December 31, 2008, Burlington had purchased
280,000 BUCs for a total acquisition cost of approximately $1.8
million. As of February 19, 2009, Burlington had completed the Plan
by purchasing a total of 319,710 BUCs for a total acquisition cost of $2.0
million.
(c) There
are no arrangements known to the Partnership, the operation of which may at any
subsequent date result in a change in control of the Partnership.
(d) The
Partnership does not maintain any equity compensation plans as defined in Item
201(d) of Regulation S-K.
Item 15. Exhibits and Financial Statement
Schedules.
(a) The
following documents are filed as part of this report:
1. Financial
Statements. The following financial statements of the Company are included in
response to Item 8 of this report:
Reports
of Independent Registered Public Accounting Firms.
Consolidated
Balance Sheets of the Company as of December 31, 2008 and 2007.
Consolidated
Statements of Operations and Comprehensive Income of the Company for the years
ended December 31, 2008, 2007 and 2006.
Consolidated
Statements of Partners' Capital of the Company for the years ended December 31,
2008, 2007 and 2006.
Consolidated
Statements of Cash Flows of the Company for the years ended December 31, 2008,
2007 and 2006.
Notes to
Consolidated Financial Statements of the Company.
2. Financial
Statement Schedules. The information required to be set forth in the
financial statement schedules is included in the notes to consolidated financial
statements of the Company filed in response to Item 8 of this
report.
3. Exhibits. The
following exhibits are filed as required by Item 15(a)(3) of this
report. Exhibit numbers refer to the paragraph numbers under Item 601
of Regulation S-K:
3. Articles
of Incorporation and Bylaws of America First Fiduciary Corporation Number Five
(incorporated herein by reference to Registration Statement on Form S-11 (No.
2-99997) filed by America First Tax Exempt Mortgage Fund Limited Partnership on
August 30, 1985).
4(a) Form
of Certificate of Beneficial Unit Certificate (incorporated herein by reference
to Exhibit 4.1 to Registration Statement on Form S-4 (No. 333-50513) filed by
the Partnership on April 17, 1998).
4(b) Agreement
of Limited Partnership of the Partnership (incorporated herein by reference to
the Amended Annual Report on Form 10-K (No. 000-24843), filed by the Partnership
on June 28, 1999).
4(c) Amended
Agreement of Merger, dated June 12, 1998, between the Partnership and America
First Tax Exempt Mortgage Fund Limited Partnership (incorporated herein by
reference to Exhibit 4.3 to Amendment No. 3 to Registration Statement on Form
S-4 (No. 333-50513) filed by the Partnership on September 14,
1998).
10(a) Series
Trust Agreement for Austin Trust, Series 10000, by and between Bank of America,
National Association, as trustor, and Deutsche Bank Trust Company Americas, as
trustee and tender agent, dated as of July 3, 2008 (incorporated herein by
reference to Exhibit 10(c) to Form 10-Q (No. 000-24843) filed by the Company on
August 8, 2008)
10(b) Series
Trust Agreement for Austin Trust, Series 10001, by and between Bank of America,
National Association, as trustor, and Deutsche Bank Trust Company Americas, as
trustee and tender agent, dated as of July 3, 2008 (incorporated herein by
reference to Exhibit 10(d) to Form 10-Q (No. 000-24843) filed by the Company on
August 8, 2008)
10(c) Series
Trust Agreement for Austin Trust, Series 10002, by and between Bank of America,
National Association, as trustor, and Deutsche Bank Trust Company Americas, as
trustee and tender agent, dated as of July 3, 2008 (incorporated herein by
reference to Exhibit 10(e) to Form 10-Q (No. 000-24843) filed by the Company on
August 8, 2008)
10(d) Series
Trust Agreement for Austin Trust, Series 10003, by and between Bank of America,
National Association, as trustor, and Deutsche Bank Trust Company Americas, as
trustee and tender agent, dated as of July 3, 2008 (incorporated herein by
reference to Exhibit 10(f) to Form 10-Q (No. 000-24843) filed by the Company on
August 8, 2008)
10(e) Interest
Rate Cap Transaction Confirmation letter, dated July 7, 2008, between the
Registrant and U.S. Bank, N.A. (incorporated herein by reference to Exhibit
10(g) to Form 10-Q (No. 000-24843) filed by the Company on August 8,
2008)
23.1 Consent
of Deloitte & Touche LLP. (incorporated herein by reference to Exhibit 23.1
to Form 10-K (No. 000-24843) filed by the Company on March 4, 2009)
23.2 Consent
of Katz, Sapper & Miller, LLP (incorporated herein by reference to Exhibit
23.2 to Form 10-K (No. 000-24843) filed by the Company on March 4,
2009)
23.3 Consent
of Katz, Sapper & Miller, LLP (incorporated herein by reference to Exhibit
23.3 to Form 10-K (No. 000-24843) filed by the Company on March 4,
2009)
24. Powers
of Attorney. (incorporated herein by reference to Exhibit 24 to Form 10-K (No.
000-24843) filed by the Company on March 4, 2009)
31.1
Certification of CEO pursuant to Section 302 of the Sarbanes-Oxley Act of
2002.
31.2
Certification of CFO pursuant to Section 302 of the Sarbanes-Oxley Act of
2002.
32.1
Certification of CEO pursuant to Section 906 of the Sarbanes-Oxley Act of
2002.
32.2
Certification of CFO pursuant to Section 906 of the Sarbanes-Oxley Act of
2002.
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
|
|
AMERICA
FIRST TAX EXEMPT INVESTORS, L.P.
|
|
|
By America
First Capital Associates
|
|
|
General
Partner of the Partnership
|
|
|
By The
Burlington Capital Group LLC,
|
|
|
America
First Capital Associates
|
Date:
March 9,
2009
By /s/
Lisa Y.
Roskens
|
|
Lisa
Y. Roskens, Chief Executive Officer
|