x | Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. |
|
For the year ended December 31, 2013 | ||
o | Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. |
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For the transition period from to |
(Exact name of registrant as specified in its charter)
California | 20-8712853 | |
(State or other jurisdiction of incorporation or organization) |
(I. R. S. Employer Identification No.) |
(Address of principal executive offices)
Registrants telephone number, including area code: (415) 989-8800
Securities registered pursuant to section 12(b) of the Act: None
Securities registered pursuant to section 12(g) of the Act: Limited Liability Company Units
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
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Act of 1934.Yes o No x
Indicate by a 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 whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).Yes x No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405) is not contained herein, and will not be contained, to the best of registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of accelerated filer and large accelerated filer in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer o | Accelerated filer o | Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company x |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).Yes o No x
State the aggregate market value of voting stock held by non-affiliates of the registrant: Not applicable
State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was sold, or the average bid and asked price of such common equity, as of a specified date within the past 60 days. (See definition of affiliate in Rule 12b-2 of the Exchange Act.) Not applicable
The number of Limited Liability Company Units outstanding as of February 28, 2014 was 2,993,482.
None.
ATEL 12, LLC (the Company or the Fund) was formed under the laws of the state of California on January 25, 2007 for the purpose of equipment financing and acquiring equipment to engage in equipment leasing and sales activities, as well as in real estate, growth capital investment activities and green technologies (the principal operations). From its inception into the third quarter of 2013, the Companys Managing Member was ATEL Associates 12, LLC (AA12), a Nevada limited liability corporation. Effective September 30, 2013, AA12 was merged into ATEL Financial Services, LLC (AFS) (the Managing Member or Manager), a Nevada limited liability corporation, which assumed the role of Managing Member of the Company. The Fund may continue until December 31, 2030. As a limited liability company, the liability of any individual member for the obligations of the Fund is limited to the extent of capital contributions to the Fund by the individual member.
The Company conducted a public offering of 20,000,000 Limited Liability Company Units (Units), at a price of $10 per Unit. On January 24, 2008, subscriptions for the minimum number of Units (120,000, representing $1.2 million), excluding subscriptions from Pennsylvania investors, had been received and the Fund requested subscription proceeds to be released from escrow. On that date, the Company commenced initial operations and continued in its development stage activities until transitioning to an operating enterprise during the second quarter of 2008. Pennsylvania subscriptions were subject to a separate escrow to be released to the Fund only when the Fund had received aggregate subscriptions for all investors equal to at least $7.5 million. Total contributions to the Fund exceeded $7.5 million on July 15, 2008. The offering was terminated on September 25, 2009.
As of December 31, 2013, cumulative contributions, net of rescissions and repurchases, totaling $29.9 million (inclusive of the $500 initial members capital investment) have been received and 2,993,482 Units were issued and outstanding.
The Fund, or Managing Member and/or affiliates on behalf of the Fund, has incurred costs in connection with the organization, registration and issuance of the Units. The amount of such costs to be borne by the Fund is limited by certain provisions of the ATEL 12, LLC Limited Liability Company Operating Agreement dated April 3, 2007 (the Operating Agreement).
The Companys principal objectives are to invest in a diversified portfolio of investments that (i) preserves, protects and returns the Companys invested capital; (ii) generates regular cash distributions to Unitholders, any balance remaining after required minimum distributions to be used to purchase additional investments during the reinvestment period (Reinvestment Period) (defined as six full years following the year the offering was terminated) which ends on December 31, 2015 and (iii) provides additional cash distributions following the Reinvestment Period and until all investment portfolio assets have been sold or otherwise disposed. The Company is governed by its Operating Agreement, as amended.
The Company has acquired and intends to acquire various types of new and used equipment subject to leases and to make loans secured by equipment acquired by its borrowers. The Companys primary investment objective is to acquire investments primarily in low-technology, low-obsolescence equipment such as materials handling equipment, manufacturing equipment, mining equipment, and transportation equipment. A portion of the portfolio will include some more technology-dependent equipment such as certain types of communications equipment, medical equipment, manufacturing equipment and office equipment. The Company will also seek investments in equipment or financing of equipment and business involving green technologies such as those involved in the following activities: materials recycling, water purification, sewage treatment pollution radiation, gas and other emission treatment, solid waste management, renewable energy generation, as well as many other similar industries and activities.
The Company only purchases equipment under pre-existing leases or for which a lease will be entered into concurrently at the time of the purchase. Through December 31, 2013, the Company had purchased equipment with a total acquisition price of $28.6 million. The Company had also loaned $5.4 million for notes receivable secured by various assets.
The Companys objective is to have at least 60% of its investment portfolio (by cost) consist of equipment leased to lessees that the Manager deems to be high quality corporate credits and/or leases guaranteed by such high quality corporate credits. High quality corporate credits are lessees or guarantors who have a credit rating by Moodys
1
Investors Service, Inc. of Baa or better, or the credit equivalent as determined by the Manager, or are public and private corporations with substantial revenues and histories of profitable operations, as well as established hospitals with histories of profitability or municipalities. The remaining 40% of the initial investment portfolio may include equipment lease transactions, real property single tenant net leases and other financing for companies which, although deemed creditworthy by the Manager, would not satisfy the specific credit criteria for the portfolio described above. Included in this 40% of the portfolio may be growth capital financing investments. No more than 20% of the initial portfolio, by cost, will consist of these growth capital financing investments and no more than 20% of the portfolio, by cost, will consist of real estate investments. The Companys objective is to invest approximately 25% of its capital in assets that involve green technologies or applications as discussed above.
During 2013 and 2012, certain lessees and/or financial borrowers generated significant portions (defined as greater than or equal to 10%) of the Companys total leasing and lending revenues, excluding gains or losses on disposition of assets, as follows:
Type of Equipment |
Percentage of Total Leasing and Lending Revenues | |||||||||||
Lessee | 2013 | 2012 | ||||||||||
Nomac Drilling, LLC | Mining | 17 | % | 15 | % | |||||||
IBM Corporation | Research | 16 | % | 14 | % | |||||||
Aircraft Service International, Inc. | Aviation | 10 | % | * | ||||||||
Wal-Mart Transportation, LLC | Transportation | 10 | % | * | ||||||||
Newell Rubbermaid, Inc. | Materials handling | * | 15 | % |
* | Less than 10% |
These percentages are not expected to be comparable in future periods.
The equipment financing industry is highly competitive. Equipment manufacturers, corporations, partnerships and others offer users an alternative to the purchase of most types of equipment with payment terms that vary widely depending on the type of financing, the lease or loan term and type of equipment. The ability of the Company to keep the equipment leased and the terms of purchase, lease and sale of equipment depends on various factors (many of which neither the Managing Member nor the Company can control), such as general economic conditions, including the effects of inflation or recession, and fluctuations in supply and demand for various types of equipment resulting from, among other things, technological and economic obsolescence.
The Managing Member will use its best efforts to diversify lessees by geography and industry and to maintain an appropriate balance and diversity in the types of equipment acquired and the types of leases entered into by the Company, and will apply the following policies: (i) The Managing Member will seek to limit the amount invested in equipment or property leased to any single lessee to not more than 20% of the aggregate purchase price of investments owned at any time during the reinvestment period; (ii) in no event will the Companys equity investment in equipment or property leased to a single lessee exceed an amount equal to 20% of the maximum capital from the sale of Units (or $30 million); and (iii) the Managing Member will seek to invest not more than 20% of the aggregate purchase price of equipment in equipment acquired from a single manufacturer. However, this last limitation is a general guideline only, and the Company may acquire equipment from a single manufacturer in excess of the stated percentage during the offering period and before the offering proceeds are fully invested, or if the Managing Member deems such a course of action to be in the Companys best interest.
The primary geographic regions in which the Company seeks leasing opportunities are North America and Europe. Currently, 100% of the Companys operating revenues are from customers domiciled in North America.
The business of the Company is not seasonal.
The Company has no full time employees. Employees of the Managing Member and affiliates provide the services the Company requires to effectively operate. The cost of these services is reimbursed by the Company to the Managing Member and affiliates per the Operating Agreement.
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The Company has acquired a diversified portfolio of equipment. The equipment has been leased to lessees in various industries. The following tables set forth the types of equipment acquired by the Company through December 31, 2013 and the industries to which the assets have been leased (dollars in thousands):
Asset Types | Purchase Price Excluding Acquisition Fees | Percentage of Total Acquisitions |
||||||
Materials handling | $ | 7,801 | 27.24 | % | ||||
Transportation | 4,934 | 17.23 | % | |||||
Research | 3,963 | 13.84 | % | |||||
Manufacturing | 3,518 | 12.29 | % | |||||
Construction | 2,989 | 10.44 | % | |||||
Mining | 2,893 | 10.10 | % | |||||
Aviation | 2,167 | 7.57 | % | |||||
Other | 370 | 1.29 | % | |||||
$ | 28,635 | 100.00 | % |
Industry of Lessee | Purchase Price Excluding Acquisition Fees | Percentage of Total Acquisitions |
||||||
Business services | $ | 6,569 | 22.94 | % | ||||
Gas/Coal products | 4,684 | 16.36 | % | |||||
Retail | 2,903 | 10.14 | % | |||||
Food products | 2,877 | 10.05 | % | |||||
Rubber/Miscellaneous plastics | 2,764 | 9.65 | % | |||||
Air transportation | 2,167 | 7.57 | % | |||||
Lumber/Wood products | 1,680 | 5.87 | % | |||||
Transportation services | 1,644 | 5.74 | % | |||||
Manufacturing | 895 | 3.13 | % | |||||
Chemical products | 863 | 3.01 | % | |||||
Industrial machinery | 783 | 2.73 | % | |||||
Other | 806 | 2.81 | % | |||||
$ | 28,635 | 100.00 | % |
From inception to December 31, 2013, the Company has disposed of certain leased assets as set forth below (in thousands):
Asset Types | Original Equipment Cost Excluding Acquisition Fees | Sale Price | Gross Rents | |||||||||
Materials handling | $ | 4,051 | $ | 846 | $ | 3,971 | ||||||
Research | 875 | 208 | 873 | |||||||||
Other | 47 | 13 | 48 | |||||||||
$ | 4,973 | $ | 1,067 | $ | 4,892 |
For further information regarding the Companys equipment lease portfolio as of December 31, 2013, see Note 6 to the financial statements, Investments in equipment and leases, net, as set forth in Part II, Item 8, Financial Statements and Supplementary Data.
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The Company finances assets in diverse industries. The following tables set forth the types of assets financed by the Company through December 31, 2013 and the industries to which the assets have been financed (dollars in thousands):
Asset Types | Amount Financed Excluding Acquisition Fees |
Percentage of Total Fundings |
||||||
Miscellaneous office equipment | $ | 3,484 | 65.05 | % | ||||
Research | 804 | 15.01 | % | |||||
Computers | 599 | 11.18 | % | |||||
Manufacturing | 400 | 7.47 | % | |||||
Other | 69 | 1.29 | % | |||||
$ | 5,356 | 100.00 | % |
Industry of Borrower | Amount Financed Excluding Acquisition Fees | Percentage of Total Fundings |
||||||
Health services | $ | 1,569 | 29.29 | % | ||||
Electronics | 1,055 | 19.70 | % | |||||
Manufacturing | 805 | 15.03 | % | |||||
Engineering/Management | 750 | 14.00 | % | |||||
Business services | 578 | 10.79 | % | |||||
Lab equipment | 399 | 7.45 | % | |||||
Chemicals/Allied products | 200 | 3.74 | % | |||||
$ | 5,356 | 100.00 | % |
From inception to December 31, 2013, assets financed by the Company that are associated with terminated loans are as follows (in thousands):
Asset Types | Amount Financed Excluding Acquisition Fees |
Disposition Proceeds |
Total Payments Received |
|||||||||
Miscellaneous office equipment | $ | 1,750 | $ | 201 | $ | 1,383 | ||||||
Computers | 599 | | 760 | |||||||||
Research | 599 | 242 | 477 | |||||||||
Other | 69 | 53 | 28 | |||||||||
$ | 3,017 | $ | 496 | $ | 2,648 |
For further information regarding the Companys notes receivable portfolio as of December 31, 2013, see Note 4 to the financial statements, Notes receivable, net, as set forth in Part II, Item 8, Financial Statements and Supplementary Data.
The Company does not own or lease any real property, plant or material physical properties other than the equipment held for lease as set forth in Item 1, Business.
In the ordinary course of conducting business, there may be certain claims, suits, and complaints filed against the Company. In the opinion of management, the outcome of such matters, if any, will not have a material impact on the Companys financial position or results of operations. No material legal proceedings are currently pending against the Company or against any of its assets.
Not Applicable.
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Item 5. | MARKET FOR REGISTRANTS COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES |
There are certain material conditions and restrictions on the transfer of Units imposed by the terms of the Operating Agreement. Consequently, there is no public market for Units and it is not anticipated that a public market for Units will develop. In the absence of a public market for the Units, there is no currently ascertainable fair market value for the Units.
As of December 31, 2013, a total of 907 investors were Unitholders of record in the Company.
As noted above, there is no public market for Units and, in order to preserve the Companys status for federal income tax purposes, the Company will not permit a secondary market or the substantial equivalent of a secondary market for the Units. In the absence of a public market for the Units, there is no currently ascertainable fair market value for the Units.
Nevertheless, in order to provide an estimated per Unit value for those Unitholders who seek valuation information, AFS has calculated an estimated value per Unit as of December 31, 2013. AFS estimates the Companys per unit value by estimating the aggregate net asset value of the Company. The valuation does not take into account any future business activity of the Company; rather it is a snapshot view of the Funds portfolio as of the valuation date.
The estimated values for non-interest bearing items such as any current assets and liabilities, as well as for any investment in securities, were assumed to equal their respective reported balances, which management believes approximate their respective fair values, as adjusted for impairment. And when applicable, the same was applied to loans incurred under the receivables funding program and the acquisition facility since they also bear variable rates of interest.
A discounted cash flow approach was used to estimate the values of notes receivable, investments in leases and non-recourse debt. Under such approach, the value of a financial instrument was estimated by calculating the present value of the instruments expected cash flows. The present value was determined by discounting the cash flows the instrument is expected to generate by discount rates as deemed appropriate by the Manager. In most cases, the discount rates used were based on U.S. Treasury yields reported as of the reporting date, plus a spread to account for the credit risk difference between the instrument being valued and Treasury securities. The valuation of the Companys warrants was determined using a Black-Scholes formulation of value based upon the stock price(s), the exercise price(s), the volatility of comparable venture companies, and a risk free interest rate for the term(s) of the warrant exercise(s).
After calculating the aggregate estimated net asset value of the Company, AFS then calculated the portion of the aggregate estimated value that would be distributed to Unitholders on liquidation of the Company, and divided the total that would be so distributable by the number of outstanding Units as of the December 31, 2013 valuation date. As of December 31, 2013, the value of the Companys assets, calculated on this basis, was approximately $6.35 per Unit.
The aforementioned valuation was performed solely for the purpose of providing an estimated liquidation value per Unit for those Unitholders who seek valuation information. It is important to note again that there is no market for the Units, and, accordingly, this value does not represent an estimate of the amount a Unitholder would receive if he were to seek to sell his Units. The Company will liquidate its assets in the ordinary course of its business and investment cycle. Furthermore, there can be no assurance as to when the Company will be fully liquidated, the amount the Company may actually receive if and when it seeks to liquidate its assets, the amount of lease payments and equipment disposition proceeds the Company will actually receive over the remaining term of the Company, or the amounts that may actually be received in distributions by Unitholders over the course of the Companys remaining term.
The Unitholders of record are entitled to certain distributions as provided under the Operating Agreement.
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The Managing Member has sole discretion in determining the amount of distributions; provided, however, that the Managing Member will not cause the Company to reinvest operating revenues in equipment, but will distribute available cash, subject to payment of any obligations of the Company, (i) in an amount sufficient to allow an investor in a 31% federal income tax bracket to meet the federal and state income taxes due on income from the operations of the Fund; (ii) through the first full fiscal quarter ending at least six months after termination of the offering of Units, an amount equal to the lesser of: (a) a rate of return on their original capital contribution equal to 2.5% over the average yield on five-year United States Treasury Bonds for the fiscal quarter immediately preceding the date of distribution, as published in a national financial newspaper from time to time (with a minimum of 8% per annum and a maximum of 9% per annum), or (b) 90% of the total amount of cash available for distributions; and (iii) for each quarter during the rest of the reinvestment period, an amount equal to 9% per annum on their original capital contribution.
The Company commenced periodic distributions in February 2008. The rate for monthly distributions from 2013 operations was $0.075 per Unit for the period from January through December 2013. Likewise the rate for monthly distributions from 2012 operations was $0.075 per Unit for the period from January through December 2012. The rate for each of the quarterly distributions paid in 2013 and 2012 was $0.225 per Unit.
The following table presents summarized information regarding distributions to Other Members:
2013 | 2012 | |||||||
Net income per Unit, based on weighted average Units outstanding | $ | 0.26 | $ | 0.02 | ||||
Return of investment | 0.64 | 0.88 | ||||||
Distributions declared per Unit, based on weighted average Other Member Units outstanding |
0.90 | 0.90 | ||||||
Differences due to timing of distributions | | | ||||||
Actual distributions paid per Unit | $ | 0.90 | $ | 0.90 |
A smaller reporting company is not required to present selected financial data in accordance with item 301(c) of Regulation S-K.
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Item 7. | MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
Statements contained in this Item 7, Managements Discussion and Analysis of Financial Condition and Results of Operations (MD&A) and elsewhere in this Form 10-K, which are not historical facts, may be forward-looking statements. Such statements are subject to risks and uncertainties that could cause actual results to differ materially from those projected. In particular, economic recession and changes in general economic conditions, including fluctuations in demand for equipment, lease rates, and interest rates, may result in delays in investment and reinvestment, delays in leasing, re-leasing, and disposition of equipment, and reduced returns on invested capital. The Companys performance is subject to risks relating to lessee defaults and the creditworthiness of its lessees. The Companys performance is also subject to risks relating to the value of its equipment at the end of its leases, which may be affected by the condition of the equipment, technological obsolescence and the markets for new and used equipment at the end of lease terms. Investors are cautioned not to attribute undue certainty to these forward-looking statements, which speak only as of the date of this Form 10-K. We undertake no obligation to publicly release any revisions to these forward-looking statements to reflect events or circumstances after the date of this Form 10-K or to reflect the occurrence of unanticipated events, other than as required by law.
ATEL 12, LLC (the Company or the Fund) is a California limited liability company that was formed in January 2007 for the purpose of equipment financing and acquiring equipment to engage in equipment leasing and sales activities, as well as in real estate, growth capital investment activities and green technologies (the principal operations), primarily in the United States.
The Company conducted a public offering of 20,000,000 Limited Liability Company Units (Units), at a price of $10 per Unit. On January 24, 2008, subscriptions for the minimum number of Units (120,000, representing $1.2 million), excluding subscriptions from Pennsylvania investors, had been received and the Fund requested subscription proceeds to be released from escrow. On that date, the Company commenced initial operations and continued in its development stage activities until transitioning to an operating enterprise during the second quarter of 2008. Pennsylvania subscriptions were subject to a separate escrow to be released to the Fund only when the Fund had received aggregate subscriptions for all investors equal to at least $7.5 million. Total contributions to the Fund exceeded $7.5 million on July 15, 2008. As of September 25, 2009, the offering was terminated.
During 2009, the Company completed its initial acquisition stage with the investment of the net proceeds from the public offering of Units. Subsequently, during the reinvestment period (Reinvestment Period) (defined as six full years following the year the offering was terminated), the Company has utilized its credit facilities and reinvested cash flow in excess of certain amounts required to be distributed to the Other Members to acquire additional equipment and/or to fund financing transactions. Throughout the Reinvestment Period, which ends December 31, 2015, the Company anticipates continued reinvestment of cash flow in excess of minimum distributions and other obligations. The Company is governed by its Limited Liability Company Operating Agreement (Operating Agreement), as amended.
The Company may continue until December 31, 2030. Periodic distributions are paid at the discretion of the Managing Member.
As of December 31, 2013 and 2012, there were concentrations (greater than or equal to 10% as a percentage of total equipment cost) of equipment leased to lessees and/or financed for borrowers in certain industries as follows:
Industry | 2013 | 2012 | ||||||
Gas/Coal | 23 | % | 18 | % | ||||
Retail | 15 | % | 11 | % | ||||
Business services | 13 | % | 23 | % | ||||
Air transportation | 11 | % | * | |||||
Food products | * | 10 | % | |||||
Rubber/Miscellaneous plastics | * | 10 | % |
* | Less than 10% |
7
As previously mentioned, certain lessees and/or financial borrowers generated significant portions (defined as greater than or equal to 10%) of the Companys total leasing and lending revenues, excluding gains or losses on disposition of assets, during 2013 and 2012 as follows:
Type of Equipment |
Percentage of Total Leasing and Lending Revenues | |||||||||||
Lessee | 2013 | 2012 | ||||||||||
Nomac Drilling, LLC | Mining | 17 | % | 15 | % | |||||||
IBM Corporation | Research | 16 | % | 14 | % | |||||||
Aircraft Service International, Inc. | Aviation | 10 | % | * | ||||||||
Wal-Mart Transportation, LLC | Transportation | 10 | % | * | ||||||||
Newell Rubbermaid, Inc. | Materials handling | * | 15 | % |
* | Less than 10% |
These percentages are not expected to be comparable in future periods due to anticipated changes in the mix of investments and/or lessees as a result of normal business activities.
It is the Companys objective to maintain a 100% utilization rate for all equipment purchased in any given year. All equipment transactions are acquired subject to binding lease commitments, so equipment utilization is expected to remain high throughout the reinvestment stage. Initial lease terms of these leases are generally from 36 to 120 months, and as they expire, the Company will attempt to re-lease or sell the equipment; as such, utilization rates may tend to decrease during the liquidation stage of the Company. All of the Companys leased property was acquired during the period from 2008 to 2013. The utilization percentage of existing assets under lease was 99% and 98% as of December 31, 2013 and 2012, respectively.
Cost reimbursements to the Managing Member are based on its costs incurred in performing administrative services for the Company. These costs are allocated to each managed entity based on certain criteria such as total assets, number of investors or contributed capital based upon the type of cost incurred.
The Company had net income of $992 thousand and $291 thousand for the years ended December 31, 2013 and 2012, respectively. Results for 2013 reflect a decrease in total operating expenses and an increase in total revenues when compared to prior year.
Total revenues for 2013 increased by $197 thousand, or 4%, as compared to prior year. The net increase in total revenues was largely attributable to increases in unrealized gain on fair valuation of warrants, other revenue and gain on sales of lease assets and early termination of notes receivable offset, in part, by a decrease in operating lease revenues.
The increase in unrealized gain on fair valuation of warrants totaled $555 thousand and was attributable to the addition of warrants of certain portfolio companies. The increase in other revenue totaled $38 thousand and was largely due to deferred maintenance fees collected during the current year and a franchise tax refund received from the state of California. Moreover, the increase in gain on sales of lease assets and early termination of notes totaled $31 thousand and was primarily attributable to an increase in volume and change in the mix of assets sold, and a $27 thousand gain on a note receivable that was fully settled prior to its scheduled maturity.
The aforementioned increases in revenues were partially offset by a $419 thousand decline in operating lease revenues. Such decrease was largely a result of run-off and sales of lease assets partially offset by revenue derived from eight new leases which commenced during the first quarter of 2013.
Total operating expenses for 2013 declined by $504 thousand, or 12%, as compared to prior year, primarily as a result of decreases in depreciation expense, the provision for credit losses, asset management fees and cost reimbursements to the Manager.
8
The decrease in depreciation expense totaled $271 thousand and was mainly a result of run-off and sales of lease assets. The provision for credit losses declined by $92 thousand largely due to $45 thousand of prior year fair value adjustments on impaired notes coupled with a current year increase in recovery of accounts receivable amounts previously reserved. Moreover, asset management fees paid to the Managing Member declined by $44 thousand as a result of the decrease in managed assets and related rents; and, cost reimbursements to the Managing Member declined by $43 thousand primarily due to a lower allocation of costs based on the Companys declining asset base.
At December 31, 2013 and 2012, the Companys cash and cash equivalents totaled $857 thousand and $319 thousand, respectively. The liquidity of the Company varies, increasing to the extent cash flows from leases and proceeds of asset sales exceed expenses and decreasing as lease assets are acquired, as distributions are made to the Members and to the extent expenses exceed cash flows from leases and proceeds from asset sales.
The primary source of liquidity for the Company has been its cash flow from fixed-term leasing activities. As the lease terms expire, the Company will re-lease or sell the equipment. The future liquidity beyond the contractual minimum rentals will depend on the Companys success in remarketing or selling the equipment as it comes off rental.
Throughout the Reinvestment Period (as defined in the Operating Agreement), the Company anticipates reinvesting a portion of lease payments from assets owned, and/or payments received on notes receivable, in new leasing or financing transactions. Such reinvestment will occur only after the payment of all obligations, including debt service (both principal and interest), the payment of management fees to the Manager and providing for cash distributions to the Members.
If inflation in the general economy becomes significant, it may affect the Company in as much as the residual (resale) values and rates on re-leases of the Companys leased assets may increase as the costs of similar assets increase. However, the Companys revenues from existing leases and notes would not increase as such rates are generally fixed for the terms of the leases and notes without adjustment for inflation. In addition, if interest rates increase significantly under such circumstances, the rates that the Company can obtain on future lease or financing transactions will be expected to increase as the cost of capital is a significant factor in the pricing of leases and investments in notes receivable. Leases and notes already in place, for the most part, would not be affected by changes in interest rates.
The Company currently believes it has available adequate reserves to meet its immediate cash requirements and those of the next twelve months, but in the event those reserves were found to be inadequate, the Company would likely be in a position to borrow against its current portfolio to meet such requirements. The Managing Member envisions no such requirements for operating purposes.
The following table sets forth summary cash flow data (in thousands):
2013 | 2012 | |||||||
Net cash provided by (used in): |
||||||||
Operating activities | $ | 3,194 | $ | 3,451 | ||||
Investing activities | (302 | ) | (2,769 | ) | ||||
Financing activities | (2,354 | ) | (2,296 | ) | ||||
Net increase (decrease) in cash and cash equivalents | $ | 538 | $ | (1,614 | ) |
During 2013 and 2012, the Companys primary sources of liquidity were cash flows from its portfolio of operating and direct financing lease contracts, and its investments in notes receivable. Moreover, the Company utilized borrowings totaling $2.7 million and $3.5 million, and realized $689 thousand and $393 thousand of proceeds from sales of lease assets and/or the early termination of notes receivable during the respective years ended December 31, 2013 and 2012.
During the same respective years, cash was primarily used to acquire lease assets and fund investments in notes receivable, pay distributions to both Other Members and the Managing Member, and to pay down debt.
9
Cash used to acquire lease assets totaled $895 thousand and $2.6 million during the years ended December 31, 2013 and 2012, respectively, while cash used to fund loans totaled $905 thousand and $1.4 million during the same respective years. Total distributions paid to Members amounted to $2.9 million for each of the twelve-month periods ended December 31, 2013 and 2012; and, cash used to pay down debt totaled $2.2 million and $2.9 million for 2013 and 2012, respectively.
The Company participates with AFS and certain of its affiliates in a revolving credit facility (the Credit Facility) comprised of a working capital facility to AFS, an acquisition facility (the Acquisition Facility) and a warehouse facility (the Warehouse Facility) to AFS, the Company and affiliates, and a venture facility available to an affiliate, with a syndicate of financial institutions. The Credit Facility was for an amount up to $60 million and set to expire in June 2014. During January 2014, the line was increased to $75 million and expiration extended to June 2015.
The Credit Facility includes certain financial and non-financial covenants applicable to each borrower, including the Company. Such covenants include covenants typically found in credit facilities of the size and nature of the Credit Facility, such as accuracy of representations, good standing, absence of liens and material litigation, etc. The Company was in compliance with all covenants under the Credit Facility as of December 31, 2013. The Company considers certain financial covenants to be material to its ongoing use of the Credit Facility and these covenants are described below.
Under the Credit Facility, the Company is required to maintain a specific tangible net worth, to comply with a leverage ratio and an interest coverage ratio, and to comply with other terms expressed in the Credit Facility, including limitation on the incurrence of additional debt and guaranties, defaults, and delinquencies. The material financial covenants are summarized as follows:
Minimum Tangible Net Worth: $7.5 million
Leverage Ratio (leverage to Tangible Net Worth): Not to exceed 1.25 to 1
Collateral Value: Collateral value under the Warehouse Facility must exceed outstanding borrowings under that facility
EBITDA to Interest Ratio: Not to be less than 2 to 1 for the four fiscal quarters just ended
EBITDA is defined under the Credit Facility as, for the relevant period of time (1) gross revenues (all payments from leases and notes receivable) for such period minus (2) expenses deducted in determining net income for such period plus (3) to the extent deducted in determining net income for such period (a) provision for income taxes and (b) interest expense, and (c) depreciation, amortization and other non-cash charges. Extraordinary items and gains or losses on (and proceeds from) sales or dispositions of assets outside of the ordinary course of business are excluded in the calculation of EBITDA. Tangible Net Worth is defined as, as of the date of determination, (i) the net worth of the Company, after deducting therefrom (without duplication of deductions) the net book amount of all assets of the Company, after deducting any reserves and other amounts for assets which would be treated as intangibles under accounting principles generally accepted in the United States of America (GAAP), and after certain other adjustments permitted under the agreements.
The financial covenants referred to above are applicable to the Company only to the extent that the Company has borrowings outstanding under the Credit Facility. The Company was in compliance with each of these financial covenants with a minimum Tangible Net Worth, leverage ratio and (EBITDA) interest coverage ratio, as calculated per the Credit Facility agreement of $9.6 million, 0.41 to 1, and 35.10 to 1, respectively, as of December 31, 2013. As such, as of December 31, 2013, the Company was in compliance with all such material financial covenants.
For purposes of compliance with the Credit Facility covenants, the Company uses a financial calculation of EBITDA, as defined therein, which is a non-GAAP financial performance measure. The EBITDA is utilized by the Company to calculate its debt covenant ratios.
10
The following is a reconciliation of net income to EBITDA, as defined in the loan agreement, for the twelve months ended December 31, 2013 (in thousands):
Net income GAAP basis | $ | 992 | ||
Interest expense | 117 | |||
Depreciation and amortization | 2,767 | |||
Amortization of initial direct costs | 33 | |||
Unrealized gain on fair valuation of warrants | (555 | ) | ||
Reversal of provision for credit losses | (41 | ) | ||
Principal payments received on direct finance leases | 117 | |||
Principal payments received on notes receivable | 677 | |||
EBITDA (for Credit Facility financial covenant calculation only) | $ | 4,107 |
The terms of the Credit Facility include standard events of default by the Company which, if not cured within applicable grace periods, could give lenders remedies against the Company, including the acceleration of all outstanding borrowings and a demand for repayment in advance of their stated maturity. If a breach of any material term of the Credit Facility should occur, the lenders may, at their option, increase borrowing rates, accelerate the obligations in advance of their stated maturities, terminate the facility, and exercise rights of collection available to them under the express terms of the facility, or by operation of law. The lenders also retain the discretion to waive a violation of any covenant at the Companys request.
The Company is currently in compliance with its obligations under the Credit Facility. In the event of a technical default (e.g., the failure to timely file a required report, or a one-time breach of a financial covenant), the Company believes it has ample time to request and be granted a waiver by the lenders, or, alternatively, cure the default under the existing provisions of its debt agreements, including, if necessary, arranging for additional capital from alternate sources to satisfy outstanding obligations.
The lending syndicate providing the Credit Facility has a blanket lien on all of the Companys assets as collateral for any and all borrowings under the Acquisition Facility, and on a pro-rata basis under the Warehouse Facility.
The Acquisition Facility is generally recourse solely to the Company, and is not cross-defaulted to any other obligations of affiliated companies under the Credit Facility, except as described in this paragraph. The Credit Facility is cross-defaulted to a default in the payment of any debt (other than non-recourse debt) or any other agreement or condition beyond the period of grace (not exceeding 30 days), the effect of which would entitle the lender under such agreement to accelerate the obligations prior to their stated maturity in an individual or aggregate principal amount in excess of 15% of the Companys consolidated Tangible Net Worth. Also, a bankruptcy of AFS will trigger a default for the Company under the Credit Facility.
As of December 31, 2013 and 2012, the Company had non-recourse long-term debt totaling $4.0 million and $3.4 million, respectively. Such non-recourse notes payable do not contain any material financial covenants. The notes are secured by a lien granted by the Company to the non-recourse lenders on (and only on) the discounted lease transactions. The lenders have recourse only to the following collateral: the specific leased equipment; the related lease chattel paper; the lease receivables; and proceeds of the foregoing items.
For detailed information on the Companys debt obligations, see Notes 8 and 9 to the financial statements as set forth in Part II, Item 8, Financial Statements and Supplementary Data.
The Company commenced periodic distributions, based on cash flows from operations, beginning with the month of February 2008. Such distributions have been consistently made through December 31, 2013. See Item 5, Market for Registrants Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities, for additional information regarding the distributions.
11
At December 31, 2013, the Company had no commitments to purchase lease assets or fund investments in notes receivable.
None.
Recent accounting standards updates as issued by the Financial Accounting Standards Board (FASB) were evaluated and determined to be not applicable to the Company.
The policies discussed below are considered by management of the Company to be critical to an understanding of the Companys financial statements because their application requires significantly complex or subjective judgments, decisions, or assessments, with financial reporting results relying on estimation about the effect of matters that are inherently uncertain. Specific risks for these critical accounting policies are described in the following paragraphs. The Company also states these accounting policies in the notes to the financial statements and in relevant sections in this discussion and analysis. For all of these policies, management cautions that future events rarely develop exactly as forecast, and the best estimates routinely require adjustment.
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Such estimates primarily relate to the determination of residual values at the end of the lease term and expected future cash flows used for impairment analysis purposes and for determination of the allowance for doubtful accounts and reserve for credit losses on notes receivable.
Equipment subject to operating leases is stated at cost. Depreciation is recognized on a straight-line method over the terms of the related leases to the equipments estimated residual values. Off-lease equipment is generally not subject to depreciation. Maintenance costs associated with the Funds portfolio of leased assets are expensed as incurred. Major additions and betterments are capitalized.
Operating lease revenue is recognized on a straight-line basis over the term of the underlying leases. The initial lease terms will vary as to the type of equipment subject to the leases, the needs of the lessees and the terms to be negotiated, but initial leases are generally on terms from 36 to 120 months. The difference between rent received and rental revenue recognized is recorded as unearned operating lease income on the balance sheet.
Operating leases are generally placed in a non-accrual status (i.e., no revenue is recognized) when payments are more than 90 days past due. Additionally, management considers the equipment underlying the lease contracts for impairment and periodically reviews the credit worthiness of all operating lessees with payments outstanding less than 90 days. Based upon managements judgment, the related operating leases may be placed on non-accrual status. Leases placed on non-accrual status are only returned to an accrual status when the account has been brought current and management believes recovery of the remaining unpaid lease payments is probable. Until such time, revenues are recognized on a cash basis.
Income from direct financing lease transactions is reported using the financing method of accounting, in which the Companys investment in the leased property is reported as a receivable from the lessee to be recovered through future rentals. The interest income portion of each rental payment is calculated so as to generate a constant rate of return on the net receivable outstanding.
12
Allowances for losses on direct financing leases are typically established based on historical charge-off and collection experience and the collectability of specifically identified lessees and billed and unbilled receivables. Direct financing leases are charged off to the allowance as they are deemed uncollectible.
Direct financing leases are generally placed in a non-accrual status (i.e., no revenue is recognized) and deemed impaired when payments are more than 90 days past due. Additionally, management periodically reviews the creditworthiness of all direct finance lessees with payments outstanding less than 90 days. Based upon managements judgment, the related direct financing leases may be placed on non-accrual status. Leases placed on non-accrual status are only returned to an accrual status when the account has been brought current and management believes recovery of the remaining unpaid lease payments is probable. Until such time, all payments received are applied only against outstanding principal balances.
The Company records all future payments of principal and interest on notes as notes receivable, which are then offset by the amount of any related unearned interest income. For financial statement purposes, the Company reports only the net amount of principal due on the balance sheet. The unearned interest is recognized over the term of the note and the income portion of each note payment is calculated so as to generate a constant rate of return on the net balance outstanding. Any fees or costs related to notes receivable are recorded as part of the net investment in notes receivable and amortized over the term of the loan.
Allowances for losses on notes receivable are typically established based on historical charge-off and collection experience and the collectability of specifically identified borrowers and billed and unbilled receivables. Notes are considered impaired when, based on current information and events, it is probable that the Company will be unable to collect the scheduled payments of principal and/or interest when due according to the contractual terms of the note agreement. Factors considered by management in determining impairment include payment status, collateral value, and the probability of collecting scheduled principal and interest when due. If it is determined that a loan is impaired with regard to scheduled payments, the Company will perform an analysis of the note to determine if an impairment valuation reserve is necessary. This analysis considers the estimated cash flows from the note, or the collateral value of the property underlying the note when note repayment is collateral dependent. Any required valuation reserve is charged to earnings when determined; and notes are charged off to the allowance as they are deemed uncollectible.
Notes receivable are generally placed in a non-accrual status (i.e., no revenue is recognized) when payments are more than 90 days past due. Additionally, management periodically reviews the creditworthiness of companies with note payments outstanding less than 90 days. Based upon managements judgment, notes may be placed in a non-accrual status. Notes placed on non-accrual status are only returned to an accrual status when the account has been brought current and management believes recovery of the remaining unpaid receivable is probable. Until such time, all payments received are applied only against outstanding principal balances.
The Company capitalizes initial direct costs (IDC) associated with the origination and funding of lease assets and investments in notes receivable. IDC includes both internal costs (e.g., the costs of employees activities in connection with successful lease and loan originations) and external broker fees incurred with such originations. The costs are amortized on a lease by lease (or note by note) basis based on actual contract term using a straight-line method for operating leases and the effective interest rate method for direct financing leases and notes receivable. Upon disposal of the underlying lease or loan assets, both the initial direct costs and the associated accumulated amortization are relieved. Costs related to leases or notes receivable that are not consummated are not eligible for capitalization as initial direct costs and are expensed as acquisition expense.
Recorded values of the Companys leased asset portfolio are periodically reviewed for impairment. An impairment loss is measured and recognized only if the estimated undiscounted future cash flows of the asset are less than their net book value. The estimated undiscounted future cash flows are the sum of the estimated residual value of the asset at the end of the assets expected holding period and estimates of undiscounted future rents. The residual value assumes, among other things, that the asset is utilized normally in an open, unrestricted and stable market. Short-term fluctuations in the market place are disregarded and it is assumed that there is no necessity either to dispose of a
13
significant number of the assets, if held in quantity, simultaneously or to dispose of the asset quickly. Impairment is measured as the difference between the fair value (as determined by a valuation method using discounted estimated future cash flows, third party appraisals or comparable sales of similar assets as applicable based on asset type) of the assets and its carrying value on the measurement date.
See the Report of Independent Registered Public Accounting Firm, Financial Statements and Notes to Financial Statements attached hereto at pages 15 through 38.
14
The Members
ATEL 12, LLC
We have audited the accompanying balance sheets of ATEL 12, LLC (the Company) as of December 31, 2013 and 2012, and the related statements of income, changes in members capital, and cash flows for the years then ended. These financial statements are the responsibility of the Management of the Companys Managing Member. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Companys internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of ATEL 12, LLC as of December 31, 2013 and 2012, and the results of its operations and its cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States of America.
/s/ Moss Adams LLP | ||
San Francisco, California March 14, 2014 |
15
2013 | 2012 | |||||||
ASSETS |
||||||||
Cash and cash equivalents | $ | 857 | $ | 319 | ||||
Accounts receivable, net of allowance for doubtful accounts of $3 at December 31, 2013 and $22 at December 31, 2012 | 55 | 57 | ||||||
Notes receivable, net of unearned interest income of $255 and allowance for credit losses of $0 at December 31, 2013 and net of unearned interest income of $230 and allowance for credit losses of $49 at December 31, 2012 | 1,701 | 1,517 | ||||||
Investment in securities | 275 | 289 | ||||||
Fair value of warrants | 555 | | ||||||
Investments in equipment and leases, net of accumulated depreciation of $11,046 at December 31, 2013 and $10,290 at December 31, 2012 | 10,653 | 13,237 | ||||||
Prepaid expenses and other assets | 30 | 32 | ||||||
Total assets | $ | 14,126 | $ | 15,451 | ||||
LIABILITIES AND MEMBERS CAPITAL |
||||||||
Accounts payable and accrued liabilities: |
||||||||
Managing Member | $ | 55 | $ | 72 | ||||
Accrued distributions to Other Members | 230 | 230 | ||||||
Other | 211 | 136 | ||||||
Non-recourse debt | 3,958 | 3,400 | ||||||
Unearned operating lease income | 101 | 122 | ||||||
Total liabilities | 4,555 | 3,960 | ||||||
Commitments and contingencies |
||||||||
Members capital: |
||||||||
Managing Member | | | ||||||
Other Members | 9,571 | 11,491 | ||||||
Total Members capital | 9,571 | 11,491 | ||||||
Total liabilities and Members capital | $ | 14,126 | $ | 15,451 |
See accompanying notes.
16
2013 | 2012 | |||||||
Revenues: |
||||||||
Leasing and lending activities: |
||||||||
Operating leases | $ | 3,796 | $ | 4,215 | ||||
Direct financing leases | 123 | 141 | ||||||
Interest on notes receivable | 146 | 141 | ||||||
Gain on sales of lease assets and early termination of notes | 57 | 26 | ||||||
Gain on sales or dispositions of securities | 5 | | ||||||
Unrealized gain on fair valuation of warrants | 555 | | ||||||
Other | 87 | 49 | ||||||
Total revenues | 4,769 | 4,572 | ||||||
Expenses: |
||||||||
Depreciation of operating lease assets | 2,767 | 3,038 | ||||||
Asset management fees to Managing Member | 164 | 208 | ||||||
Acquisition expense | 121 | 134 | ||||||
Cost reimbursements to Managing Member and affiliates | 365 | 408 | ||||||
(Reversal of) provision for credit losses | (41 | ) | 51 | |||||
Amortization of initial direct costs | 33 | 50 | ||||||
Interest expense | 117 | 121 | ||||||
Professional fees | 83 | 87 | ||||||
Outside services | 38 | 47 | ||||||
Other | 130 | 137 | ||||||
Total operating expenses | 3,777 | 4,281 | ||||||
Net income | $ | 992 | $ | 291 | ||||
Net income: |
||||||||
Managing Member | $ | 218 | $ | 218 | ||||
Other Members | 774 | 73 | ||||||
$ | 992 | $ | 291 | |||||
Net income per Limited Liability Company Unit (Other Members) | $ | 0.26 | $ | 0.02 | ||||
Weighted average number of Units outstanding | 2,993,482 | 2,993,482 |
See accompanying notes.
17
Other Members | Managing Member |
Total | ||||||||||||||
Units | Amount | |||||||||||||||
Balance December 31, 2011 | 2,993,482 | $ | 14,112 | $ | | $ | 14,112 | |||||||||
Distributions to Other Members ($0.90 per Unit) | | (2,694 | ) | | (2,694 | ) | ||||||||||
Distributions to Managing Member | | | (218 | ) | (218 | ) | ||||||||||
Net income | | 73 | 218 | 291 | ||||||||||||
Balance December 31, 2012 | 2,993,482 | 11,491 | | 11,491 | ||||||||||||
Distributions to Other Members ($0.90 per Unit) | | (2,694 | ) | | (2,694 | ) | ||||||||||
Distributions to Managing Member | | | (218 | ) | (218 | ) | ||||||||||
Net income | | 774 | 218 | 992 | ||||||||||||
Balance December 31, 2013 | 2,993,482 | $ | 9,571 | $ | | $ | 9,571 |
See accompanying notes.
18
2013 | 2012 | |||||||
Operating activities: |
||||||||
Net income | $ | 992 | $ | 291 | ||||
Adjustment to reconcile net income to cash provided by operating activities: |
||||||||
Gain on sales of lease assets and early termination of notes | (57 | ) | (26 | ) | ||||
Depreciation of operating lease assets | 2,767 | 3,038 | ||||||
Amortization of initial direct costs | 33 | 50 | ||||||
(Reversal of) provision for credit losses | (41 | ) | 51 | |||||
Gain on sales or dispositions of securities | (5 | ) | | |||||
Unrealized gain on fair valuation of warrants | (555 | ) | | |||||
Changes in operating assets and liabilities: |
||||||||
Accounts receivable | 21 | 21 | ||||||
Prepaid expenses and other assets | 2 | (22 | ) | |||||
Accounts payable, Managing Member | (17 | ) | 30 | |||||
Accounts payable, other | 75 | 62 | ||||||
Unearned operating lease income | (21 | ) | (44 | ) | ||||
Net cash provided by operating activities | 3,194 | 3,451 | ||||||
Investing activities: |
||||||||
Purchases of equipment on operating leases | (895 | ) | (2,606 | ) | ||||
Purchase of securities | (2 | ) | | |||||
Proceeds from sales of lease assets and early termination of notes | 689 | 393 | ||||||
Payments of initial direct costs | (4 | ) | (8 | ) | ||||
Note receivable advances | (905 | ) | (1,434 | ) | ||||
Proceeds from sale of securities | 21 | | ||||||
Principal payments received on direct financing leases | 117 | 263 | ||||||
Principal payments received on notes receivable | 677 | 623 | ||||||
Net cash used in investing activities | (302 | ) | (2,769 | ) | ||||
Financing activities: |
||||||||
Borrowings under non-recourse debt | 2,734 | 2,021 | ||||||
Repayments under non-recourse debt | (2,176 | ) | (1,405 | ) | ||||
Borrowings under acquisition facility | | 1,500 | ||||||
Repayments under acquisition facility | | (1,500 | ) | |||||
Distributions to Other Members | (2,694 | ) | (2,694 | ) | ||||
Distributions to Managing Member | (218 | ) | (218 | ) | ||||
Net cash used in financing activities | (2,354 | ) | (2,296 | ) | ||||
Net increase (decrease) in cash and cash equivalents | 538 | (1,614 | ) | |||||
Cash and cash equivalents at beginning of year | 319 | 1,933 | ||||||
Cash and cash equivalents at end of year | $ | 857 | $ | 319 | ||||
Supplemental disclosures of cash flow information: |
||||||||
Cash paid during the year for interest | $ | 120 | $ | 125 | ||||
Cash paid during the year for taxes | $ | 4 | $ | 18 | ||||
Schedule of non-cash transactions: |
||||||||
Distributions payable to Other Members at year-end | $ | 230 | $ | 230 | ||||
Distributions payable to Managing Member at year-end | $ | 19 | $ | 19 |
See accompanying notes.
19
ATEL 12, LLC (the Company or the Fund) was formed under the laws of the state of California on January 25, 2007 for the purpose of equipment financing and acquiring equipment to engage in equipment leasing and sales activities, as well as in real estate, growth capital investment activities and green technologies (the principal operations). From its inception into the third quarter of 2013, the Companys Managing Member was ATEL Associates 12, LLC (AA12), a Nevada limited liability corporation. Effective September 30, 2013, AA12 was merged into ATEL Financial Services, LLC (AFS) (the Managing Member or Manager), a Nevada limited liability corporation, which assumed the role of Managing Member of the Company. The Fund may continue until December 31, 2030. As a limited liability company, the liability of any individual member for the obligations of the Fund is limited to the extent of capital contributions to the Fund by the individual member.
The Company conducted a public offering of 20,000,000 Limited Liability Company Units (Units), at a price of $10 per Unit. On January 24, 2008, subscriptions for the minimum number of Units (120,000, representing $1.2 million), excluding subscriptions from Pennsylvania investors, had been received and the Fund requested subscription proceeds to be released from escrow. On that date, the Company commenced initial operations and continued in its development stage activities until transitioning to an operating enterprise during the second quarter of 2008. Pennsylvania subscriptions were subject to a separate escrow to be released to the Fund only when the Fund had received aggregate subscriptions for all investors equal to at least $7.5 million. Total contributions to the Fund exceeded $7.5 million on July 15, 2008. The offering was terminated on September 25, 2009.
As of December 31, 2013, cumulative contributions, net of rescissions and/or redemptions, totaling $29.9 million (inclusive of the $500 initial Members capital investment) have been received and 2,993,482 Units were issued and outstanding.
The Fund, or Managing Member and/or affiliates on behalf of the Fund, has incurred costs in connection with the organization, registration and issuance of the Units. The amount of such costs to be borne by the Fund is limited by certain provisions of the ATEL 12, LLC Limited Liability Company Operating Agreement dated April 3, 2007 (the Operating Agreement).
The Companys principal objectives are to invest in a diversified portfolio of investments that (i) preserves, protects and returns the Companys invested capital; (ii) generates regular cash distributions to Unitholders, any balance remaining after required minimum distributions to be used to purchase additional investments during the Reinvestment Period (ending six calendar years after the completion of the Companys public offering of Units) which ends on December 31, 2015 and (iii) provides additional cash distributions following the Reinvestment Period and until all investment portfolio assets have been sold or otherwise disposed. The Company is governed by its Operating Agreement, as amended.
The accompanying balance sheets as of December 31, 2013 and 2012, and the related statements of income, changes in members capital, and cash flows for the years then ended, have been prepared in accordance with accounting principles generally accepted in the United States of America (GAAP) and the rules and regulations of the Securities and Exchange Commission. Certain prior year amounts have been reclassified to conform to the current year presentation. These reclassifications had no significant effect on the reported financial position or results of operations.
Footnote and tabular amounts are presented in thousands, except as to Units and per Unit data.
In preparing the accompanying financial statements, the Company has reviewed, as determined necessary by the Managing Member, events that have occurred after December 31, 2013, up until the issuance of the financial statements. No events were noted which would require disclosure in the footnotes to the financial statements.
Cash and cash equivalents include cash in banks and cash equivalent investments such as U.S. Treasury instruments with original and/or purchased maturities of ninety days or less.
20
The preparation of the financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from the estimates. Such estimates primarily relate to the determination of residual values at the end of the lease term and expected future cash flows used for impairment analysis purposes and determination of the allowances for doubtful accounts and reserve for credit losses on notes receivable.
Accounts receivable represent the amounts billed under operating and direct financing lease contracts, and notes receivable which are currently due to the Company. Allowances for doubtful accounts are typically established based on historical charge off and collection experience and the collectability of specifically identified lessees and borrowers, and invoiced amounts. Accounts receivable deemed uncollectible are generally charged off against the allowance on a specific identification basis. Recoveries of amounts that were previously written-off are recorded as other income in the period received.
Financial instruments that potentially subject the Company to concentrations of credit risk include cash and cash equivalents, operating and direct financing lease receivables, notes receivable and accounts receivable. The Company places the majority of its cash deposits in noninterest-bearing accounts with financial institutions that have no less than $10 billion in assets. Such deposits are insured up to $250 thousand. The remainder of the Funds cash is temporarily invested in U.S. Treasury denominated instruments. The concentration of such deposits and temporary cash investments is not deemed to create a significant risk to the Company. Accounts and notes receivable represent amounts due from lessees or borrowers in various industries, related to equipment on operating and direct financing leases or notes receivable.
Equipment subject to operating leases is stated at cost. Depreciation is recognized on a straight-line method over the terms of the related leases to the equipments estimated residual values. Off-lease equipment is generally not subject to depreciation. Maintenance costs associated with the Funds portfolio of leased assets are expensed as incurred. Major additions and betterments are capitalized.
Operating lease revenue is recognized on a straight-line basis over the term of the underlying leases. The initial lease terms will vary as to the type of equipment subject to the leases, the needs of the lessees and the terms to be negotiated, but initial leases are generally on terms from 36 to 120 months. The difference between rent received and rental revenue recognized is recorded as unearned operating lease income on the balance sheet.
Operating leases are generally placed in a non-accrual status (i.e., no revenue is recognized) when payments are more than 90 days past due. Additionally, management considers the equipment underlying the lease contracts for impairment and periodically reviews the credit worthiness of all operating lessees with payments outstanding less than 90 days. Based upon managements judgment, the related operating leases may be placed on non-accrual status. Leases placed on non-accrual status are only returned to an accrual status when the account has been brought current and management believes recovery of the remaining unpaid lease payments is probable. Until such time, revenues are recognized on a cash basis.
Income from direct financing lease transactions is reported using the financing method of accounting, in which the Companys investment in the leased property is reported as a receivable from the lessee to be recovered through future rentals. The interest income portion of each rental payment is calculated so as to generate a constant rate of return on the net receivable outstanding.
21
Allowances for losses on direct financing leases are typically established based on historical charge-off and collection experience and the collectability of specifically identified lessees and billed and unbilled receivables. Direct financing leases are charged off to the allowance as they are deemed uncollectible.
Direct financing leases are generally placed in a non-accrual status (i.e., no revenue is recognized) and deemed impaired when payments are more than 90 days past due. Additionally, management periodically reviews the creditworthiness of all direct finance lessees with payments outstanding less than 90 days. Based upon managements judgment, the related direct financing leases may be placed on non-accrual status. Leases placed on non-accrual status are only returned to an accrual status when the account has been brought current and management believes recovery of the remaining unpaid lease payments is probable. Until such time, all payments received are applied only against outstanding principal balances.
The Company records all future payments of principal and interest on notes as notes receivable, which are then offset by the amount of any related unearned interest income. For financial statement purposes, the Company reports only the net amount of principal due on the balance sheet. The unearned interest is recognized over the term of the note and the income portion of each note payment is calculated so as to generate a constant rate of return on the net balance outstanding. Any fees or costs related to notes receivable are recorded as part of the net investment in notes receivable and amortized over the term of the loan.
Allowances for losses on notes receivable are typically established based on historical charge off and collection experience and the collectability of specifically identified borrowers and billed and unbilled receivables. Notes are considered impaired when, based on current information and events, it is probable that the Company will be unable to collect the scheduled payments of principal and/or interest when due according to the contractual terms of the note agreement. Factors considered by management in determining impairment include payment status, collateral value, and the probability of collecting scheduled principal and interest when due. If it is determined that a loan is impaired with regard to scheduled payments, the Company will perform an analysis of the note to determine if an impairment valuation reserve is necessary. This analysis considers the estimated cash flows from the note, or the collateral value of the property underlying the note when note repayment is collateral dependent. Any required valuation reserve is charged to earnings when determined; and notes are charged off to the allowance as they are deemed uncollectible.
Notes receivable are generally placed in a non-accrual status (i.e., no revenue is recognized) when payments are more than 90 days past due. Additionally, management periodically reviews the creditworthiness of companies with note payments outstanding less than 90 days. Based upon managements judgment, notes may be placed in a non-accrual status. Notes placed on non-accrual status are only returned to an accrual status when the account has been brought current and management believes recovery of the remaining unpaid receivable is probable. Until such time, all payments received are applied only against outstanding principal balances.
The Company capitalizes initial direct costs (IDC) associated with the origination and funding of lease assets and investments in notes receivable. IDC includes both internal costs (e.g., the costs of employees activities in connection with successful lease and loan originations) and external broker fees incurred with such originations. The costs are amortized on a lease by lease (or note by note) basis based on actual lease term using a straight-line method for operating leases and the effective interest rate method for direct financing leases and notes receivable. Upon disposal of the underlying lease or loan assets, both the initial direct costs and the associated accumulated amortization are relieved. Costs related to leases or notes receivable that are not consummated are not eligible for capitalization as initial direct costs and are expensed as acquisition expense.
22
Acquisition expense represents costs which include, but are not limited to, legal fees and expenses, travel and communication expenses, cost of appraisals, accounting fees and expenses and miscellaneous expenses related to the selection and acquisition of equipment which are reimbursable to the Managing Member under the terms of the Operating Agreement. As the costs are not eligible for capitalization as initial direct costs, such amounts are expensed as incurred.
Recorded values of the Companys leased asset portfolio are periodically reviewed for impairment. An impairment loss is measured and recognized only if the estimated undiscounted future cash flows of the asset are less than their net book value. The estimated undiscounted future cash flows are the sum of the estimated residual value of the asset at the end of the assets expected holding period and estimates of undiscounted future rents. The residual value assumes, among other things, that the asset is utilized normally in an open, unrestricted and stable market. Short-term fluctuations in the market place are disregarded and it is assumed that there is no necessity either to dispose of a significant number of the assets, if held in quantity, simultaneously or to dispose of the asset quickly. Impairment is measured as the difference between the fair value (as determined by a valuation method using discounted estimated future cash flows, third party appraisals or comparable sales of similar assets as applicable based on asset type) of the asset and its carrying value on the measurement date.
The Company is organized into one operating segment for the purpose of making operating decisions or assessing performance. Accordingly, the Company operates in one reportable operating segment in the United States.
The Companys principal decision makers are the Managing Members Chief Executive Officer and its Chief Financial Officer and Chief Operating Officer. The Company believes that its equipment leasing business operates as one reportable segment because: a) the Company measures profit and loss at the equipment portfolio level as a whole; b) the principal decision makers do not review information based on any operating segment other than the equipment leasing transaction portfolio; c) the Company does not maintain discrete financial information on any specific segment other than its equipment financing operations; d) the Company has not chosen to organize its business around different products and services other than equipment lease financing; and e) the Company has not chosen to organize its business around geographic areas.
The primary geographic regions in which the Company sought leasing opportunities were North America and Europe. For the years ended December 31, 2013 and 2012, and as of December 31, 2013 and 2012, 100% of the Companys operating revenues and long-lived assets are from customers domiciled in North America.
Purchased securities
Purchased securities are generally not registered for public sale and are carried at cost. Such securities are adjusted to fair value if the fair value is less than the carrying value and such impairment is deemed by the Managing Member to be other than temporary. Factors considered by the Managing Member in determining fair value include, but are not limited to, available financial information, the issuers ability to meet its current obligations and indications of the issuers subsequent ability to raise capital. Based upon the Companys review of its portfolio, no fair value adjustment was deemed necessary at December 31, 2013 and 2012. Gains recognized on sales or dispositions of investment securities totaled $5 thousand for the year ended December 31, 2013. There were no sales or dispositions of investment securities during 2012.
23
Warrants
Warrants owned by the Company are not registered for public sale, but are considered derivatives and are carried at an estimated fair value on the balance sheet at the end of the period, as determined by the Managing Member. At December 31, 2013, the Companys portfolio of warrants had an estimated fair value of $555 thousand. At December 31, 2012, the Managing Member estimated the fair value of the warrants to be nominal in amount.
The Company records prepayments on operating leases as a liability under the caption of unearned operating lease income. The liability is recorded when prepayments are received and recognized as operating lease revenue over the period to which the prepayments relate using a straight-line method.
The Company is treated as a partnership for federal income tax purposes. Pursuant to the provisions of Section 701 of the Internal Revenue Code, a partnership is not subject to federal income taxes. Accordingly, the Company has provided current franchise income taxes for only those states which levy income taxes on partnerships. For the years ended December 31, 2013 and 2012, the related provision for state income taxes was approximately $4 thousand and $16 thousand, respectively. The Company does not have any entity level uncertain tax positions. The Company files income tax returns in the U.S. federal jurisdiction and various state jurisdictions and is generally subject to examination by U.S. federal (or state and local) income tax authorities for three years from the filing of a tax return.
The tax bases of the Companys net assets and liabilities vary from the amounts presented in these financial statements at December 31, 2013 and 2012 as follows (in thousands):
2013 | 2012 | |||||||
Financial statement basis of net assets | $ | 9,571 | $ | 11,491 | ||||
Tax basis of net assets (unaudited) | 8,387 | 11,044 | ||||||
Difference | $ | 1,184 | $ | 447 |
The primary differences between the tax bases of net assets and the amounts recorded in the financial statements are the result of differences in accounting for impairment losses, syndication costs and differences between the depreciation methods used in the financial statements and the Companys tax returns.
The following reconciles the net income reported in these financial statements to the loss reported on the Companys federal tax return (unaudited) for the years ended December 31, 2013 and 2012 (in thousands):
2013 | 2012 | |||||||
Net income per financial statements | $ | 992 | $ | 291 | ||||
Tax adjustments (unaudited): |
||||||||
Adjustment to depreciation expense | (554 | ) | (1,671 | ) | ||||
Provision for losses and doubtful accounts | (19 | ) | 6 | |||||
Adjustments to revenues/other expenses | 42 | 219 | ||||||
Adjustments to gain on sales of assets | 348 | 4 | ||||||
Other | (553 | ) | 54 | |||||
Loss per federal tax return (unaudited) | $ | 256 | $ | (1,097 | ) |
Net income and distributions per Unit are based upon the weighted average number of Other Members Units outstanding during the year.
24
Recent accounting standards updates as issued by the Financial Accounting Standards Board (FASB) were evaluated and determined to be not applicable to the Company.
The Company leases equipment to lessees and provides debt financing to borrowers in diversified industries. Leases and notes receivable are subject to the Managing Members credit committee review. The leases and notes receivable provide for the return of the equipment to the Company upon default.
As of December 31, 2013 and 2012, there were concentrations (greater than or equal to 10% as a percentage of total equipment cost) of equipment leased to lessees and/or financed for borrowers in certain industries as follows:
Industry | 2013 | 2012 | ||||||
Gas/Coal | 23 | % | 18 | % | ||||
Retail | 15 | % | 11 | % | ||||
Business services | 13 | % | 23 | % | ||||
Air transportation | 11 | % | * | |||||
Food products | * | 10 | % | |||||
Rubber/Miscellaneous plastics | * | 10 | % |
* | Less than 10% |
During 2013 and 2012, certain lessees and/or financial borrowers generated significant portions (defined as greater than or equal to 10%) of the Companys total leasing and lending revenues, excluding gains or losses on disposition of assets as follows:
Type of Equipment |
Percentage of Total Leasing and Lending Revenues |
|||||||||||
Lessee | 2013 | 2012 | ||||||||||
Nomac Drilling, LLC | Mining | 17 | % | 15 | % | |||||||
IBM Corporation | Research | 16 | % | 14 | % | |||||||
Aircraft Service International, Inc. | Aviation | 10 | % | * | ||||||||
Wal-Mart Transportation, LLC | Transportation | 10 | % | * | ||||||||
Newell Rubbermaid, Inc. | Materials handling | * | 15 | % |
* | Less than 10% |
The Company has various notes receivable from borrowers who have financed the purchase of equipment through the Company. At December 31, 2013, the terms of the notes receivable are from 36 to 42 months and bear interest at rates ranging from 11.37% to 14.30% per annum. The notes are secured by the equipment financed and have maturity dates ranging from 2015 through 2017.
As of December 31, 2013, the Company had neither notes in non-accrual status nor impaired notes. By comparison, as of December 31, 2012, the Company had no notes in non-accrual status. The Company did, however, have three notes receivable that were deemed impaired as of the same date.
Two of the three impaired notes at December 31, 2012 were placed in non-accrual status in 2010, at which time their terms were modified to defer the repayment of principal until April 2012 while maintaining interest-only payments at their original rates of 11.58% and 11.78%, respectively. During 2011, the notes were deemed impaired relative to their original payment terms. From April 1, 2012 well into the third quarter, the interest only payment arrangement was continued pending a final resolution of the terms of repayment. Prior to the end of the third quarter of 2012, a large
25
dollar amount was received to significantly reduce the then outstanding principal balance. During the previous periods when interest only was being paid, all such payments were made in accordance with the then applicable note modification agreements. The notes were returned to accrual status effective October 1, 2012. Both impaired notes were fully settled during the fourth quarter of 2013. The Company had accumulated $22 thousand of fair value adjustments relative to the aforementioned notes through their settlement date.
During the second quarter of 2012, an additional note was deemed to be impaired and placed in non-accrual status. As such, the Company recorded a fair value adjustment of $27 thousand which reduced the cost basis of the impaired note. As of December 31, 2012, the estimated impairment remained unchanged. As of the same date, the note reflected a principal balance and net investment balance outstanding of $85 thousand and $58 thousand, respectively. Just prior to the end of the third quarter of 2012, past due amounts associated with the impaired note were received bringing the note receivable outstanding current at September 30, 2012. The note was returned to accrual status effective October 1, 2012. The note was fully settled during the first quarter of 2013 prior to its scheduled maturity resulting in a gain of $27 thousand.
As of December 31, 2013, the minimum future payments receivable are as follows (in thousands):
Year ending December 31, 2014 | $ | 893 | ||
2015 | 618 | |||
2016 | 400 | |||
2017 | 40 | |||
1,951 | ||||
Less: portion representing unearned interest income | (255 | ) | ||
1,696 | ||||
Unamortized initial direct costs | 5 | |||
Notes receivable, net | $ | 1,701 |
IDC amortization expense related to notes receivable and the Companys operating and direct financing leases for the years ended December 31, 2013 and 2012 are as follows (in thousands):
2013 | 2012 | |||||||
IDC amortization notes receivable | $ | 6 | $ | 8 | ||||
IDC amortization lease assets | 27 | 42 | ||||||
Total | $ | 33 | $ | 50 |
The Companys allowance for credit losses are as follows (in thousands):
Accounts Receivable Allowance for Doubtful Accounts |
Valuation Adjustments on Financing Receivables | Total Allowance for Credit Losses | ||||||||||||||||||||||
Notes Receivable | Finance Leases | Operating Leases | Notes Receivable | Finance Leases | ||||||||||||||||||||
Balance December 31, 2011 | $ | | $ | | $ | 16 | $ | 4 | $ | | $ | 20 | ||||||||||||
Provision (reversal of provision) | | 12 | (6 | ) | 45 | | 51 | |||||||||||||||||
Balance December 31, 2012 | | 12 | 10 | 49 | | 71 | ||||||||||||||||||
Reversal of provision | | (12 | ) | (7 | ) | (22 | ) | | (41 | ) | ||||||||||||||
Asset disposal | | | | (27 | ) | | (27 | ) | ||||||||||||||||
Balance December 31, 2013 | $ | | $ | | $ | 3 | $ | | $ | | $ | 3 |
Accounts receivable represent the amounts billed under operating and direct financing lease contracts, and notes receivable which are currently due to the Company.
26
Allowances for doubtful accounts are typically established based upon their aging and historical charge off and collection experience and the creditworthiness of specifically identified lessees and borrowers, and invoiced amounts. Accounts receivable deemed uncollectible are generally charged off against the allowance on a specific identification basis. Recoveries of amounts that were previously written-off are recorded as other income in the period received.
Accounts receivable are generally placed in a non-accrual status (i.e., no revenue is recognized) when payments are more than 90 days past due. Additionally, management periodically reviews the creditworthiness of companies with lease or note payments outstanding less than 90 days. Based upon managements judgment, such leases or notes may be placed in non-accrual status. Leases or notes placed on non-accrual status are only returned to an accrual status when the account has been brought current and management believes recovery of the remaining unpaid receivable is probable. Until such time, revenues on operating leases are recognized on a cash basis. All payments received on amounts billed under direct financing leases contracts and notes receivable are applied only against outstanding principal balances.
In addition to the allowance established for delinquent accounts receivable, the total allowance related solely to financing receivables also includes anticipated impairment charges on notes receivable and direct financing leases.
Notes are considered impaired when, based on current information and events, it is probable that the Company will be unable to collect the scheduled payments of principal and/or interest when due according to the contractual terms of the note agreement. Factors considered by management in determining impairment include payment status, collateral value, and the probability of collecting scheduled principal and interest when due. If it is determined that a loan is impaired with regard to scheduled payments, the Company will perform an analysis of the note to determine if an impairment valuation reserve is necessary. This analysis considers the estimated cash flows from the note, or the collateral value of the property underlying the note when note repayment is collateral dependent. Any required valuation reserve is charged to earnings when determined; and notes are charged off to the allowance as they are deemed uncollectible.
The asset underlying a direct financing lease contract is considered impaired if the estimated undiscounted future cash flows of the asset are less than its net book value. The estimated undiscounted future cash flows are the sum of the estimated residual value of the asset at the end of the assets expected holding period and estimates of undiscounted future rents. The residual value assumes, among other things, that the asset is utilized normally in an open, unrestricted and stable market. Short-term fluctuations in the market place are disregarded and it is assumed that there is no necessity either to dispose of a significant number of the assets, if held in quantity, simultaneously or to dispose of the asset quickly. Impairment is measured as the difference between the fair value (as determined by a valuation method using discounted estimated future cash flows, third party appraisals or comparable sales of similar assets as applicable based on asset type) of the asset and its carrying value on the measurement date.
27
The Companys allowance for credit losses (related solely to financing receivables) and its recorded investment in financing receivables as of December 31, 2013 and 2012 were as follows (in thousands):
December 31, 2013 | Notes Receivable |
Finance Leases |
Total | |||||||||
Allowance for credit losses: |
||||||||||||
Ending balance | $ | | $ | | $ | | ||||||
Ending balance: individually evaluated for impairment | $ | | $ | | $ | | ||||||
Ending balance: collectively evaluated for impairment | $ | | $ | | $ | | ||||||
Ending balance: loans acquired with deteriorated credit quality | $ | | $ | | $ | | ||||||
Financing receivables: |
||||||||||||
Ending balance | $ | 1,7011 | $ | 200 | $ | 1,901 | ||||||
Ending balance: individually evaluated for impairment | $ | 1,701 | $ | 200 | $ | 1,901 | ||||||
Ending balance: collectively evaluated for impairment | $ | | $ | | $ | | ||||||
Ending balance: loans acquired with deteriorated credit quality | $ | | $ | | $ | |
1 | Includes $5 of unamortized initial direct costs. |
December 31, 2012 | Notes Receivable | Finance Leases | Total | |||||||||
Allowance for credit losses: |
||||||||||||
Ending balance | $ | 49 | $ | | $ | 49 | ||||||
Ending balance: individually evaluated for impairment | $ | 49 | $ | | $ | 49 | ||||||
Ending balance: collectively evaluated for impairment | $ | | $ | | $ | | ||||||
Ending balance: loans acquired with deteriorated credit quality | $ | | $ | | $ | | ||||||
Financing receivables: |
||||||||||||
Ending balance | $ | 1,5662 | $ | 338 | $ | 1,904 | ||||||
Ending balance: individually evaluated for impairment | $ | 1,566 | $ | 338 | $ | 1,904 | ||||||
Ending balance: collectively evaluated for impairment | $ | | $ | | $ | | ||||||
Ending balance: loans acquired with deteriorated credit quality | $ | | $ | | $ | |
2 | Includes $6 of unamortized initial direct costs. |
The Company evaluates the credit quality of its financing receivables on a scale equivalent to the following quality indicators related to corporate risk profiles:
Pass Any account whose lessee/debtor, co-lessee/debtor or any guarantor has a credit rating on publicly traded or privately placed debt issues as rated by Moodys or S&P for either Senior Unsecured debt, Long Term Issuer rating or Issuer rating that are in the tiers of ratings generally recognized by the investment community as constituting an Investment Grade credit rating; or, has been determined by the Manager to be an Investment Grade Equivalent or High Quality Corporate Credit per its Credit Policy or has a Not Rated internal rating by the Manager and the account is not considered by the Chief Credit Officer of the manager to fall into one of the three risk profiles below.
Special Mention Any traditional corporate type account with potential weaknesses (e.g. large net losses or major industry downturns) or, any growth capital account that has less than three months of cash as of the end of the calendar quarter to fund their continuing operations. These accounts deserve managements close attention. If left uncorrected, those potential weaknesses may result in deterioration of the Funds receivable at some future date.
28
Substandard Any account that is inadequately protected by the current worth and paying capacity of the borrower or of the collateral pledged, if any. Accounts that are so classified have a well-defined weakness or weaknesses that jeopardize the liquidation of the debt. They are characterized by the distinct possibility that the Fund will sustain some loss as the likelihood of fully collecting all receivables may be questionable if the deficiencies are not corrected. Such accounts are on the Managers Credit Watch List.
Doubtful Any account where the weaknesses make collection or liquidation in full, on the basis of currently existing facts, conditions, and values, highly questionable and improbable. Accordingly, an account that is so classified is on the Managers Credit Watch List, and has been declared in default and the Manager has repossessed, or is attempting to repossess, the equipment it financed. This category includes impaired notes and leases as applicable.
At December 31, 2013 and 2012, the Companys financing receivables by credit quality indicator and by class of financing receivables are as follows (excludes initial direct costs) (in thousands):
Notes Receivable | Finance Leases | |||||||||||||||
December 31, 2013 | December 31, 2012 | December 31, 2013 | December 31, 2012 | |||||||||||||
Pass | $ | 1,696 | $ | 1,538 | $ | 200 | $ | 338 | ||||||||
Special mention | | 22 | | | ||||||||||||
Substandard | | | | | ||||||||||||
Doubtful | | | | | ||||||||||||
Total | $ | 1,696 | $ | 1,560 | $ | 200 | $ | 338 |
There were no impaired loans at December 31, 2013. As of December 31, 2012, the Companys impaired loans were as follows (in thousands):
Impaired Loans | ||||||||||||||||||||
December 31, 2012 | Recorded Investment | Unpaid Principal Balance | Related Allowance | Average Recorded Investment | Interest Income Recognized |
|||||||||||||||
With no related allowance recorded |
||||||||||||||||||||
Notes receivable | $ | | $ | | $ | | $ | | $ | | ||||||||||
With an allowance recorded |
||||||||||||||||||||
Notes receivable | 107 | 107 | 49 | 146 | 18 | |||||||||||||||
Total | $ | 107 | $ | 107 | $ | 49 | $ | 146 | $ | 18 |
At December 31, 2013 and 2012, investment in financing receivables is aged as follows (in thousands):
December 31, 2013 | 31 60 Days Past Due | 61 90 Days Past Due | Greater Than 90 Days | Total Past Due | Current | Total Financing Receivables | Recorded Investment >90 Days and Accruing | |||||||||||||||||||||
Notes receivable | $ | | $ | | $ | | $ | | $ | 1,696 | $ | 1,696 | $ | | ||||||||||||||
Finance leases | 87 | | | 87 | 113 | 200 | | |||||||||||||||||||||
Total | $ | 87 | $ | | $ | | $ | 87 | $ | 1,809 | $ | 1,896 | $ | |
December 31, 2012 | 31 60 Days Past Due | 61 90 Days Past Due | Greater Than 90 Days | Total Past Due | Current | Total Financing Receivables | Recorded Investment >90 Days and Accruing | |||||||||||||||||||||
Notes receivable | $ | | $ | | $ | | $ | | $ | 1,560 | $ | 1,560 | $ | | ||||||||||||||
Finance leases | | | 125 | 125 | 213 | 338 | 125 | |||||||||||||||||||||
Total | $ | | $ | | $ | 125 | $ | 125 | $ | 1,773 | $ | 1,898 | $ | 125 |
29
As discussed in Note 4, the Company had no notes in non-accrual status as of December 31, 2013 and 2012. As of December 31, 2012, the Company did, however, have three notes receivable that were deemed impaired, all of which have been settled by November 2013. There were no impaired notes as of December 31, 2013. See Note 4 for further discussion.
As of December 31, 2013, there were no investments in financing receivables with related accounts receivable past due more than 90 days which were still on an accrual basis. As of December 31, 2012, certain investments in financing receivables with related accounts receivable past due more than 90 days were still on an accrual basis based on managements assessment of the collectability of such receivables. However, these accounts receivable were fully reserved and included in the allowance for doubtful accounts presented above.
The Companys investment in leases consists of the following (in thousands):
Balance December 31, 2012 | Reclassifications, Additions/ Dispositions | Depreciation/ Amortization Expense or Amortization of Leases |
Balance December 31, 2013 | |||||||||||||
Net investment in operating leases | $ | 11,961 | $ | 398 | $ | (2,767 | ) | $ | 9,592 | |||||||
Net investment in direct financing leases | 338 | (21 | ) | (117 | ) | 200 | ||||||||||
Assets held for sale or lease, net | 885 | (50 | ) | | 835 | |||||||||||
Initial direct costs, net of accumulated amortization of $85 at December 31, 2013 and $96 at December 31, 2012 | 53 | | (27 | ) | 26 | |||||||||||
Total | $ | 13,237 | $ | 327 | $ | (2,911 | ) | $ | 10,653 |
Management periodically reviews the carrying values of its assets on leases. Impairment losses are recorded as an adjustment to the net investment in operating leases. No impairment losses were recorded during 2013 and 2012.
The Company utilizes a straight line depreciation method for equipment in all of the categories currently in its portfolio of lease transactions. Depreciation expense on the Companys equipment totaled $2.8 million and $3.0 million for the years ended December 31, 2013 and 2012, respectively.
As shown in Note 4, IDC amortization expense related to the Companys operating and direct financing leases totaled $27 thousand and $42 thousand for the years ended December 31, 2013 and 2012, respectively.
30
All of the Companys leased property was acquired during the period from 2008 to 2013.
Property on operating leases consists of the following (in thousands):
Balance December 31, 2012 | Additions | Reclassifications or Dispositions | Balance December 31, 2013 | |||||||||||||
Transportation | $ | 4,935 | $ | | $ | | $ | 4,935 | ||||||||
Manufacturing | 2,606 | 663 | | 3,269 | ||||||||||||
Construction | 2,989 | | | 2,989 | ||||||||||||
Mining | 2,893 | | | 2,893 | ||||||||||||
Aviation | 2,167 | | | 2,167 | ||||||||||||
Materials handling | 4,276 | | (2,374 | ) | 1,902 | |||||||||||
Computer | | 139 | | 139 | ||||||||||||
Other | | 93 | (3 | ) | 90 | |||||||||||
19,866 | 895 | (2,377 | ) | 18,384 | ||||||||||||
Less accumulated depreciation | (7,905 | ) | (2,767 | ) | 1,880 | (8,792 | ) | |||||||||
Total | $ | 11,961 | $ | (1,872 | ) | $ | (497 | ) | $ | 9,592 |
The average estimated residual value for assets on operating leases was 29% of the assets original cost at both December 31, 2013 and 2012. There were no operating leases in non-accrual status at December 31, 2013 and 2012.
As of December 31, 2013, investment in direct financing leases consists of various types of manufacturing and materials handling equipment. As of December 31, 2012, such investment in direct financing leases consisted of various types of manufacturing, cleaning services and materials handling equipment such as sweepers, forklifts and lift trucks. The components of the Companys investment in direct financing leases as of December 31, 2013 and 2012 are as follows (in thousands):
2013 | 2012 | |||||||
Total minimum lease payments receivable | $ | 297 | $ | 538 | ||||
Estimated residual values of leased equipment (unguaranteed) | 12 | 33 | ||||||
Investment in direct financing leases | 309 | 571 | ||||||
Less unearned income | (109 | ) | (233 | ) | ||||
Net investment in direct financing leases | $ | 200 | $ | 338 |
There were no investments in direct financing leases in non-accrual status at December 31, 2013 and 2012.
At December 31, 2013, the aggregate amounts of future minimum lease payments receivable are as follows (in thousands):
Operating Leases |
Direct Financing Leases |
Total | ||||||||||
Year ending December 31, 2014 | $ | 2,899 | $ | 175 | $ | 3,074 | ||||||
2015 | 1,174 | 109 | 1,283 | |||||||||
2016 | 471 | 13 | 484 | |||||||||
2017 | 471 | | 471 | |||||||||
2018 | 109 | | 109 | |||||||||
$ | 5,124 | $ | 297 | $ | 5,421 |
31
The terms of the Operating Agreement provide that the Managing Member and/or affiliates are entitled to receive certain fees for equipment management and resale and for management of the Company.
The Operating Agreement allows for the reimbursement of costs incurred by Managing Member and/or affiliates for providing administrative services to the Company. Administrative services provided include Company accounting, investor relations, legal counsel and lease and equipment documentation. The Managing Member is not reimbursed for services whereby it is entitled to receive a separate fee as compensation for such services, such as management of investments. The Company would be liable for certain future costs to be incurred by the Managing Member to manage the administrative services provided to the Company.
Each of AFS and ATEL Leasing Corporation (ALC) is a wholly-owned subsidiary of ATEL Capital Group and performs services for the Company on behalf of the Managing Member. Acquisition services, equipment management, lease administration and asset disposition services are performed by ALC; investor relations, communications and general administrative services are performed by AFS.
Cost reimbursements to the Managing Member or its affiliates are based on its costs incurred in performing administrative services for the Company. These costs are allocated to each managed entity based on certain criteria such as managed assets, number of investors or contributed capital based upon the type of cost incurred. The Managing Member believes that the costs reimbursed are the lower of (i) actual costs incurred on behalf of the Company or (ii) the amount the Company would be required to pay independent parties for comparable administrative services in the same geographic location.
During the years ended December 31, 2013 and 2012, the Managing Member and/or affiliates earned commissions and billed for reimbursements, pursuant to the Operating Agreement as follows (in thousands):
2013 | 2012 | |||||||
Administrative costs reimbursed to Managing Member and/or affiliates | $ | 365 | $ | 408 | ||||
Asset management fees to Managing Member and/or affiliates | 164 | 208 | ||||||
Acquisition and initial direct costs paid to Managing Member and/or affiliates | 125 | 142 | ||||||
$ | 654 | $ | 758 |
At December 31, 2013, non-recourse debt consists of notes payable to financial institutions. The notes are due in monthly installments. Interest on the notes is at fixed rates ranging from 1.41% to 4.40% per annum. The notes are secured by assignments of lease payments and pledges of assets. At December 31, 2013, gross lease rentals totaled approximately $4.1 million over the remaining lease terms; and the carrying value of the pledged assets is approximately $7.3 million. The notes mature at various dates from 2014 through 2018.
The non-recourse debt does not contain any material financial covenants. The debt is secured by liens granted by the Company to the non-recourse lenders on (and only on) the discounted lease transactions. The lenders have recourse only to the following collateral: the specific leased equipment; the related lease chattel paper; the lease receivables; and proceeds of the foregoing items. The non-recourse obligation is payable solely out of the respective specific security and the Company does not guarantee (nor is the Company otherwise contractually responsible for) the payment of the non-recourse debt as a general obligation or liability of the Company. Although the Company does not have any direct or general liability in connection with the non-recourse debt apart from the security granted, the Company is directly and generally liable and responsible for certain representations, warranties, and covenants made to the lenders, such as warranties as to genuineness of the transaction parties' signatures, as to the genuineness of the respective lease chattel paper or the transaction as a whole, or as to the Company's good title to or perfected interest in the secured collateral, as well as similar representations, warranties and covenants typically provided by non-recourse borrowers and customary in the equipment finance industry, and are viewed by such industry as being consistent with non-recourse discount financing obligations. Accordingly, as there are no financial covenants or ratios imposed on the Company in connection with the non-recourse debt, the Company has determined that there are no material covenants with respect to the non-recourse debt that warrant footnote disclosure.
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Future minimum payments of non-recourse debt are as follows (in thousands):
Principal | Interest | Total | ||||||||||
Year ending December 31, 2014 | $ | 2,064 | $ | 65 | $ | 2,129 | ||||||
2015 | 873 | 30 | 903 | |||||||||
2016 | 454 | 17 | 471 | |||||||||
2017 | 464 | 7 | 471 | |||||||||
2018 | 103 | 1 | 104 | |||||||||
$ | 3,958 | $ | 120 | $ | 4,078 |
The Company participates with AFS and certain of its affiliates in a revolving credit facility (the Credit Facility) comprised of a working capital facility to AFS, an acquisition facility (the Acquisition Facility) and a warehouse facility (the Warehouse Facility) to AFS, the Company and affiliates, and a venture facility available to an affiliate with a syndicate of financial institutions which Credit Facility includes certain financial covenants. The Credit Facility was for an amount up to $60 million and set to expire in June 2014. During January 2014, the line was increased to $75 million and expiration extended to June 2015. The lending syndicate providing the Credit Facility has a blanket lien on all of the Companys assets as collateral for any and all borrowings under the Acquisition Facility, and on a pro-rata basis under the Warehouse Facility.
As of December 31, 2013 and 2012, borrowings under the facility were as follows (in thousands):
2013 | 2012 | |||||||
Total available under the financing arrangement | $ | 60,000 | $ | 60,000 | ||||
Amount borrowed by the Company under the acquisition facility | | | ||||||
Amounts borrowed by affiliated partnerships and limited liability companies under the venture, acquisition and warehouse facilities | (7,310 | ) | (5,490 | ) | ||||
Total remaining available under the venture, acquisition and warehouse facilities | $ | 52,690 | $ | 54,510 |
The Company and its affiliates pay an annual commitment fee to have access to this line of credit. As of December 31, 2013, the aggregate amount of the Credit Facility is potentially available to the Company, subject to certain sub-facility and borrowing-base limitations. However, as amounts are drawn on the Credit Facility by each of the Company and the affiliates who are borrowers under the Credit Facility, the amount remaining available to all borrowers to draw under the Credit Facility is reduced. As the Warehousing Facility is a short term bridge facility, any amounts borrowed under the Warehousing Facility, and then repaid by the affiliated borrowers (including the Company) upon allocation of an acquisition to a specific purchaser, become available under the Warehouse Facility for further short term borrowing.
As of December 31, 2013, the Companys Tangible Net Worth requirement under the Credit Facility was $7.5 million, the permitted maximum leverage ratio was not to exceed 1.25 to 1, and the required minimum interest coverage ratio was not to be less than 2 to 1. The Company was in compliance with these financial covenants under the Credit Facility with a minimum Tangible Net Worth, leverage ratio and interest coverage ratio, as calculated per the Credit Facility agreement of $9.6 million, 0.41 to 1, and 35.10 to 1, respectively, as of December 31, 2013. As such, as of December 31, 2013, the Company was in compliance with all material financial covenants, and with all other material conditions of the Credit Facility. The Company does not anticipate any covenant violations nor does it anticipate that any of these covenants will restrict its operations or its ability to procure additional financing.
Fee and interest terms
The interest rate on the Credit Facility is based on either the LIBOR/Eurocurrency rate of 1-, 2-, 3- or 6-month maturity plus a lender designated spread, or the banks Prime rate, which re-prices daily. Principal amounts of loans
33
made under the Credit Facility that are prepaid may be re-borrowed on the terms and subject to the conditions set forth under the Credit Facility. There were no borrowings outstanding as of December 31, 2013 and 2012. During the first six months of 2012, the Company borrowed and repaid $1.5 million. The year-to-date weighted average rate on such borrowings was 3.30%.
Warehouse facility
To hold the assets under the Warehousing Facility prior to allocation to specific investor programs, a Warehousing Trust has been entered into by the Company, AFS, ALC, and certain of the affiliated partnerships and limited liability companies. The Warehousing Trust is used by the Warehouse Facility borrowers to acquire and hold, on a short-term basis, certain lease transactions that meet the investment objectives of each of such entities. Each of the leasing programs sponsored by AFS and ALC is a pro rata participant in the Warehousing Trust, as described below. When a program no longer has a need for short-term financing provided by the Warehousing Facility, it is removed from participation, and as new leasing investment entities are formed by AFS and ALC and commence their acquisition stages, these new entities are added.
As of December 31, 2013, the investment program participants were the Company, ATEL 14, LLC and ATEL 15, LLC. Pursuant to the Warehousing Trust, the benefit of the lease transaction assets, and the corresponding liabilities under the Warehouse Facility, inure to each of such entities based upon each entitys pro-rata share in the Warehousing Trust estate. The pro-rata share is calculated as a ratio of the net worth of each entity over the aggregate net worth of all entities benefiting from the Warehousing Trust estate, excepting that the trustees, AFS and ALC, are both jointly and severally liable for the pro-rata portion of the obligations of each of the affiliated limited liability companies participating under the Warehouse Facility. Transactions are financed through this Warehouse Facility only until the transactions are allocated to a specific program for purchase or are otherwise disposed by AFS and ALC. When a determination is made to allocate the transaction to a specific program for purchase by the program, the purchaser repays the debt associated with the asset, either with cash or by means of proceeds of a draw under the Acquisition Facility, and the asset is removed from the Warehouse Facility collateral, and ownership of the asset and any debt obligation associated with the asset are assumed solely by the purchasing entity.
There were no borrowings under the Warehouse Facility as of December 31, 2013 and December 31, 2012.
At December 31, 2013, the Company had no commitments to purchase lease assets or fund investments in notes receivable.
The Company enters into contracts that contain a variety of indemnifications. The Companys maximum exposure under these arrangements is unknown. However, the Company has not had prior claims or losses pursuant to these contracts and expects the risk of loss to be remote.
The Managing Member knows of no facts or circumstances that would make the Companys contractual commitments outside standard mutual covenants applicable to commercial transactions between businesses. Accordingly, the Company believes that these indemnification obligations are made in the ordinary course of business as part of standard commercial and industry practice, and that any potential liability under the Companys similar commitments is remote. Should any such indemnification obligation become payable, the Company would separately record and/or disclose such liability in accordance with GAAP.
A total of 2,993,482 Units were issued and outstanding as of December 31, 2013 and 2012, respectively. The Fund was authorized to issue up to 20,000,000 total Units.
The Company has the right, exercisable in the Managers discretion, but not the obligation, to repurchase Units of a Unitholder who ceases to be a U.S. Citizen, for a price equal to 100% of the holders capital account. The Company is
34
otherwise permitted, but not required, to repurchase Units upon a holders request. The repurchase of Fund Units is made in accordance with Section 13 of the Amended and Restated Limited Liability Company Operating Agreement. The repurchase would be at the discretion of the Manager on terms it determines to be appropriate under given circumstances, in the event that the Manager deems such repurchase to be in the best interest of the Company; provided, the Company is never required to repurchase any Units. Upon the repurchase of any Units by the Fund, the tendered Units are cancelled. Units repurchased in prior periods were repurchased at amounts representing the original investment less cumulative distributions made to the Unitholder with respect to the Units. All Units repurchased during a quarter are deemed to be repurchased effective the last day of the preceding quarter, and are not deemed to be outstanding during, or entitled to allocations of net income, net loss or distributions for the quarter in which such repurchase occurs.
The Funds net income or net losses are to be allocated 100% to the Members. From the commencement of the Fund until the initial closing date, as defined in the Companys Operating Agreement, net income and net loss shall be allocated 99% to the Managing Member and 1% to the initial Other Members. Commencing with the initial closing date, net income and net loss shall be allocated 92.5% to the Other Members and 7.5% to the Managing Member.
Fund distributions are to be allocated 7.5% to the Managing Member and 92.5% to the Other Members. Distributions to the Other Members for the years ended December 31, 2013 and 2012 were as follows (in thousands, except as to Units and per Unit data):
2013 | 2012 | |||||||
Distributions | $ | 2,694 | $ | 2,694 | ||||
Weighted average number of Units outstanding | 2,993,482 | 2,993,482 | ||||||
Weighted average distributions per Unit | $ | 0.90 | $ | 0.90 |
Fair value measurements and disclosures are based on a fair value hierarchy as determined by significant inputs used to measure fair value. The three levels of inputs within the fair value hierarchy are defined as follows:
Level 1 Quoted prices in active markets for identical assets or liabilities. An active market for the asset or liability is a market in which transactions for the asset or liability occur with sufficient frequency and volume to provide pricing information on an ongoing basis, generally on a national exchange.
Level 2 Quoted prices for similar instruments in active markets, quoted prices for identical or similar instruments in markets that are not active, and model-based valuations in which all significant inputs are observable in the market.
Level 3 Valuation is modeled using significant inputs that are unobservable in the market. These unobservable inputs reflect the Company's own estimates of assumptions that market participants would use in pricing the asset or liability.
At December 31, 2013, only the Companys warrants were measured on a recurring basis. As of the same date, there were no non-recurring fair value adjustments. No assets or liabilities required measurement at fair value on a recurring basis at December 31, 2012; however, the Company recorded non-recurring adjustments to reflect the fair values of certain impaired notes receivable during 2012. Amounts at December 31, 2012 reflect the fair value of the then existing impaired assets.
The Companys valuation policy is determined by members of the Asset Management, Credit and Accounting departments. Whenever possible, the policy is to obtain quoted market prices in active markets to estimate fair values for recognition and disclosure purposes. Where quoted market prices in active markets are not available, fair values are estimated using discounted cash flow analyses, broker quotes, information from third party remarketing agents, third party appraisals of collateral and/or other valuation techniques. These techniques are significantly affected by certain of the Companys assumptions, including discount rates and estimates of future cash flows. Potential taxes and other transaction costs are not considered in estimating fair values. As the Company is responsible for determining fair value, an analysis is performed on prices obtained from third parties. Such analysis is performed by asset management
35
and credit department personnel who are familiar with the Companys investments in equipment, notes receivable and equity securities of venture companies. The analysis may include a periodic review of price fluctuations and validation of numbers obtained from a specific third party by reference to multiple representative sources.
The measurement methodologies are as follows:
Warrants (recurring)
Warrants owned by the Company are not registered for public sale, but are considered derivatives and are carried on the balance sheet at an estimated fair value at the end of the period. The valuation of the warrants was determined using a Black-Scholes formulation of value based upon the stock price(s), the exercise price(s), the volatility of comparable venture companies, and a risk free interest rate for the term(s) of the warrant exercise(s). As of December 31, 2013, the calculated fair value of the Funds warrant portfolio approximated $555 thousand. Such valuation is classified within Level 3 of the valuation hierarchy. As of December 31, 2012, the Managing Member estimated the fair value of the warrants to be nominal in amount.
The fair value of the Companys notes receivable, when impairment adjustments are required, is estimated using either third party appraisals or estimations of the value of collateral (for collateral dependent loans) or discounted cash flow analyses (by discounting estimated future cash flows) using the effective interest rate contained in the terms of the original loan. The Company had no fair value adjustments relative to impaired notes receivable during the year ended December 31, 2013.
During 2012, the Company had recorded fair value adjustments totaling $45 thousand relative to three impaired notes: $18 thousand relative to incremental fair value adjustments recorded during the first quarter of 2012 to further reduce the cost basis of two impaired notes originally deemed impaired in 2011, and an initial fair value of $27 thousand, recorded during the second quarter of 2012, for an additional impaired note.
All of the fair value adjustments recorded in 2012 were non-recurring and were based upon an estimated valuation of underlying collateral. Under the Fair Value Measurements Topic of the FASB Accounting Standards Codification, the fair value of the impaired notes receivable is classified within Level 3 of the valuation hierarchy. The valuation utilizes a market approach technique and uses inputs from third party appraisers that utilize current market transactions as adjusted for certain factors specific to the underlying collateral.
The aforementioned impaired notes were settled by November 2013. There were no impaired notes as of December 31, 2013.
The following table reconciles the beginning and ending balances of the Companys Level 3 recurring assets (in thousands):
Level 3 assets | ||||
Balance at December 31, 2012 | $ | | ||
Unrealized gain on warrants, net recorded during the year | 555 | |||
Balance at December 31, 2013 | $ | 555 |
There were no impaired assets at December 31, 2013. The following table presents the fair value measurement of impaired assets measured at fair value on a non-recurring basis and the level within the hierarchy in which the fair value measurements fall at December 31, 2012 (in thousands):
December 31, 2012 | Level 1 Estimated Fair Value |
Level 2 Estimated Fair Value |
Level 3 Estimated Fair Value |
|||||||||||||
Impaired notes receivable, net | $ | 58 | $ | | $ | | $ | 58 |
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The following table summarizes the valuation techniques and significant unobservable inputs used for the Companys recurring fair value calculation categorized as Level 3 in the fair value hierarchy at December 31, 2013:
Name | Valuation Frequency |
Valuation Technique |
Unobservable Inputs |
Range of Input Values |
||||||||||||
Warrants | Recurring | Black-Scholes Model | Stock Price | $ | 0.05 - $25.76 |
|||||||||||
Exercise price | $ | 0.05 - $25.76 |
||||||||||||||
Time to Maturity (in years) | 1.96 - 9.98 |
|||||||||||||||
Annual risk-free interest rate | 0.38% - 3.04% |
|||||||||||||||
Annualized volatility | 17.80% - 100.00 | % |
The following disclosure of the estimated fair value of financial instruments is made in accordance with the guidance provided by the Financial Instruments Topic of the FASB Accounting Standards Codification. Fair value estimates, methods and assumptions, set forth below for the Companys financial instruments, are made solely to comply with the requirements of the Financial Instruments Topic and should be read in conjunction with the Companys financial statements and related notes.
The Company has determined the estimated fair value amounts by using market information and valuation methodologies that it considers appropriate and consistent with the fair value accounting guidance. Considerable judgment is required to interpret market data to develop the estimates of fair value. Accordingly, the estimates presented herein are not necessarily indicative of the amounts the Company could realize or has realized in a current market exchange. The use of different market assumptions and/or estimation methodologies may have a material effect on the estimated fair value amounts.
The recorded amounts of the Companys cash and cash equivalents approximate fair value because of the liquidity and short-term maturity of these instruments.
The fair value of the Companys notes receivable is estimated using either third party appraisals of collateral or discounted cash flow analyses based upon current market rates for similar types of lending arrangements, with credit risk or estimated collateral liquidation adjustments for impaired loans as deemed necessary.
The Companys investment securities are not registered for public sale and are carried at cost which management believes approximates fair value, as appropriately adjusted for impairment.
The fair value of the Companys non-recourse debt is estimated using discounted cash flow analyses, based upon current market borrowing rates for similar types of borrowing arrangements.
Management has determined that no recognition for the fair value of the Companys loan commitments is necessary because their terms are made on a market rate basis and require borrowers to be in compliance with the Companys credit requirements at the time of funding.
The fair value of contingent liabilities (or guarantees) is not considered material because management believes there has been no event that has occurred wherein a guarantee liability has been incurred or will likely be incurred.
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The following tables present estimated fair values of the Companys financial instruments in accordance with the guidance provided by the Financial Instruments Topic of the FASB Accounting Standards Codification at December 31, 2013 and 2012 (in thousands):
Fair Value Measurements at December 31, 2013 | ||||||||||||||||||||
Carrying Value |
Level 1 | Level 2 | Level 3 | Total | ||||||||||||||||
Financial assets: |
||||||||||||||||||||
Cash and cash equivalents | $ | 857 | $ | 857 | $ | | $ | | $ | 857 | ||||||||||
Notes receivable, net | 1,701 | | | 1,701 | 1,701 | |||||||||||||||
Investment in securities | 275 | | | 275 | 275 | |||||||||||||||
Fair value of warrants | 555 | | | 555 | 555 | |||||||||||||||
Financial liabilities: |
||||||||||||||||||||
Non-recourse debt | 3,958 | | | 3,940 | 3,940 |
Fair Value Measurements at December 31, 2012 | ||||||||||||||||||||
Carrying Value |
Level 1 | Level 2 | Level 3 | Total | ||||||||||||||||
Financial assets: |
||||||||||||||||||||
Cash and cash equivalents | $ | 319 | $ | 319 | $ | | $ | | $ | 319 | ||||||||||
Notes receivable, net | 1,517 | | | 1,517 | 1,517 | |||||||||||||||
Investment in securities | 289 | | | 289 | 289 | |||||||||||||||
Financial liabilities: |
||||||||||||||||||||
Non-recourse debt | 3,400 | | | 3,412 | 3,412 |
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Item 9. | CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURES |
None.
Item 9A. | CONTROLS AND PROCEDURES |
The Companys Managing Members President and Chief Executive Officer, and Executive Vice President and Chief Financial Officer and Chief Operating Officer (Management), evaluated the effectiveness of the Companys disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) as of the end of the period covered by this report. Based on the evaluation of the Companys disclosure controls and procedures, Management concluded that as of the end of the period covered by this report, the design and operation of these disclosure controls and procedures were effective.
The Company does not control the financial reporting process, and is solely dependent on the Management of the Managing Member, who is responsible for providing the Company with financial statements in accordance with generally accepted accounting principles in the United States. The Managing Members disclosure controls and procedures, as they are applicable to the Company, means controls and other procedures of an issuer that are designed to ensure that information required to be disclosed by the issuer in the reports that it files or submits under the Act (15 U.S.C. 78a et seq.) is recorded, processed, summarized and reported, within the time periods specified in the Commissions rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by an issuer in the reports that it files or submits under the Act is accumulated and communicated to the issuers management, including its principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.
The Management of the Managing Member is responsible for establishing and maintaining adequate internal control over financial reporting as that term is defined in Exchange Act Rule 13a-15(f) for the Company, and for performing an assessment of the effectiveness of internal control over financial reporting as of December 31, 2013. The internal control process of the Managing Member, as it is applicable to the Company, was designed to provide reasonable assurance to Management regarding the preparation and fair presentation of published financial statements, and includes those policies and procedures that:
(1) | Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles in the United States, and that the Companys receipts and expenditures are being made only in accordance with authorization of the Management of the Managing Member; and |
(2) | Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Companys assets that could have a material effect on the financial statements. |
All internal control processes, no matter how well designed, have inherent limitations. Therefore, even those processes determined to be effective can provide only reasonable assurance with respect to the reliability of financial statement preparation and presentation. Further, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions or that the degree of compliance with the policies or procedures may deteriorate.
Management of the Managing Member assessed the effectiveness of its internal control over financial reporting, as it is applicable to the Company, as of December 31, 2013. In making this assessment, it used the criteria set forth in Internal Control Integrated Framework (1992) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on its assessment, Management of the Managing Member concluded that the Managing Members internal control over financial reporting, as it is applicable to the Company, was effective as of December 31, 2013.
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This annual report does not include an attestation report of the Companys independent registered public accounting firm regarding internal control over financial reporting. Managements report was not subject to attestation by the Companys independent registered public accounting firm pursuant to Section 989G of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which exempts non-accelerated filers from Section 404(b) of the Sarbanes-Oxley Act of 2002.
There were no changes in the Managing Members internal control over financial reporting, as it is applicable to the Company, during the quarter ended December 31, 2013 that have materially affected, or are reasonably likely to materially affect, the Managing Members internal control over financial reporting, as it is applicable to the Company.
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Item 10. | DIRECTORS AND EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS; COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT |
The registrant is a Limited Liability Company and has no officers or directors.
From its inception into the third quarter of 2013, the Companys Managing Member was ATEL Associates 12, LLC (AA12), a Nevada limited liability corporation. Effective September 30, 2013, AA12 was merged into ATEL Financial Services, LLC (AFS) (the Managing Member or Manager), a Nevada limited liability corporation, which assumed the role of Managing Member of the Company. AFS is a wholly-owned subsidiary of ATEL Capital Group (ACG or ATEL). The outstanding voting capital stock of ATEL is owned 100% by Dean L. Cash.
Each of AFS and ATEL Leasing Corporation (ALC) is a wholly-owned subsidiary of ACG and performs services for the Company on behalf of the Managing Member. Acquisition services, equipment management, lease administration and asset disposition services are performed by ALC; investor relations and communications services, and general administrative services are performed by AFS.
The officers and directors of ACG and its affiliates are as follows:
Dean L. Cash | Chairman of the Board, President and Chief Executive Officer of ATEL Financial Services, LLC (Managing Member) |
|
Paritosh K. Choksi | Director, Executive Vice President and Chief Financial Officer and Chief Operating Officer of ATEL Financial Services, LLC (Managing Member) |
|
Vasco H. Morais | Executive Vice President, Secretary and General Counsel of ATEL Financial Services, LLC (Managing Member) |
Dean L. Cash, age 63, became chairman, president and chief executive officer of ATEL in April 2001. Mr. Cash joined ATEL as director of marketing in 1980 and served as a vice president since 1981, executive vice president since 1983 and a director since 1984. Prior to joining ATEL, Mr. Cash was a senior marketing representative for Martin Marietta Corporation, data systems division, from 1979 to 1980. From 1977 to 1979, he was employed by General Electric Corporation, where he was an applications specialist in the medical systems division and a marketing representative in the information services division. Mr. Cash was a systems engineer with Electronic Data Systems from 1975 to 1977, and was involved in maintaining and developing software for commercial applications. Mr. Cash received a B.S. degree in psychology and mathematics in 1972 and an M.B.A. degree with a concentration in finance in 1975 from Florida State University. Mr. Cash is an arbitrator with the American Arbitration Association and is qualified as a registered principal with the Financial Industry Regulatory Authority.
Paritosh K. Choksi, age 60, joined ATEL in 1999 as a director, senior vice president and its chief financial officer. He became its executive vice president and CFO/COO in April 2001. Prior to joining ATEL, Mr. Choksi was chief financial officer at Wink Communications, Inc. from 1997 to 1999. From 1977 to 1997, Mr. Choksi was with Phoenix American Incorporated, a financial services and management company, where he held various positions during his tenure, and was senior vice president, chief financial officer and director when he left the company. Mr. Choksi was involved in all corporate matters at Phoenix and was responsible for Phoenixs capital market needs. He also served on the credit committee overseeing all corporate investments, including its venture lease portfolio. Mr. Choksi was a part of the executive management team which caused Phoenixs portfolio to increase from $50 million in assets to over $2 billion. Mr. Choksi is a member of the board of directors of Syntel, Inc. Mr. Choksi received a bachelor of technology degree in mechanical engineering from the Indian Institute of Technology, Bombay; and an M.B.A. degree from the University of California, Berkeley.
Vasco H. Morais, age 55, joined ATEL in 1989 as general counsel. Mr. Morais manages ATELs legal department, which provides legal and contractual support in the negotiating, documenting, drafting, reviewing and funding of lease transactions. In addition, Mr. Morais advises on general corporate law matters, and assists on securities law issues. From 1986 to 1989, Mr. Morais was employed by the BankAmeriLease Companies, Bank of Americas equipment leasing subsidiaries, providing in-house legal support on the documentation of tax-oriented and non-tax oriented direct and leveraged lease transactions, vendor leasing programs and general corporate matters. Prior to the BankAmeriLease Companies, Mr. Morais was with the Consolidated Capital Companies in the Corporate and Securities Legal Department involved in drafting and reviewing contracts, advising on corporate law matters and securities law issues. Mr. Morais received a B.A. degree in 1982 from the University of California in Berkeley, a J.D. degree in 1986 from
41
Golden Gate University Law School; and an M.B.A. (Finance) degree from Golden Gate University in 1997. Mr. Morais, an active member of the State Bar of California since 1986, served as co-chair of the Uniform Business Law Section of the State Bar of California and was inducted as a fellow of the American College of Commercial Finance Lawyers in 2010.
The board of directors of the Managing Member acts as the audit committee of the Company. Dean L. Cash and Paritosh K. Choksi are members of the board of directors of the Managing Member and are deemed to be financial experts. They are not independent of the Company.
Based solely on a review of Forms 3, 4, and 5, the Company is not aware of any failures to file reports of beneficial ownership required to be filed during or for the year ended December 31, 2013.
A Code of Ethics that is applicable to the Company, including the Chief Executive Officer and Chief Financial Officer and Chief Operating Officer of its Manager, ATEL Financial Services, LLC, or persons acting in such capacity on behalf of the Company, is included as Exhibit 14.1 to this report.
The registrant has no officers or directors.
Set forth hereinafter is a description of the nature of remuneration paid and to be paid to the Manager and its affiliates. The amount of such remuneration paid for the years ended December 31, 2013 and 2012 is set forth in Item 8 of this report under the caption Financial Statements and Supplementary Data Notes to Financial Statements Related party transactions, at Note 7 thereof, which information is hereby incorporated by reference.
The Company paid selling commissions in the amount of 9% of Gross Proceeds, as defined, to ATEL Securities Corporation, an affiliate of the Manager.
Through December 31, 2009, $2.7 million of such commissions had either been accrued or paid to ASC. Of that amount, $2.3 million has been re-allowed to other broker/dealers. The Company did not incur any additional selling commissions subsequent to December 31, 2009.
The Company pays the Manager an Asset Management Fee in an amount equal to 4% of Operating Revenues, which includes Gross Lease Revenues and Cash from Sales or Refinancing. The Asset Management Fee is paid on a monthly basis. The amount of the Asset Management Fee payable in any year is reduced for that year to the extent it would otherwise exceed the Asset Management Fee Limit, as described below. The Asset Management Fee is paid for services rendered by the Manager and its affiliates in determining portfolio and investment strategies and generally managing or supervising the management of the investment portfolio.
The Manager also receives, as its Carried Interest, an amount equal to 7.5% of all Company Distributions.
AFS supervises performance of all management activities, including, among other activities: the acquisition and financing of the investment portfolio, collection of lease and loan revenues, monitoring compliance by lessees/borrowers with their contract terms, assuring that investment assets are being used in accordance with all operative contractual arrangements, paying operating expenses and arranging for necessary maintenance and repair of equipment and property in the event a lessee fails to do so, monitoring property, sales and use tax compliance and preparation of operating financial data. AFS intends to delegate all or a portion of its duties and the Asset Management Fee to one or more of its affiliates who are in the business of providing such services.
42
The Fund has adopted a single Asset Management Fee plus the Carried Interest as a means of compensating the Manager for sponsoring the Fund and managing its operations. While this compensation structure is intended to simplify management compensation for purposes of investor's understanding, state securities administrators use a more complicated compensation structure in their review of equipment program offerings in order to assure that those offerings are fair under the states' merit review guidelines. The total of all Front End Fees, the Carried Interest and the Asset Management Fee will be subject to the Asset Management Fee Limit in order to assure these state administrators that the Fund will not bear greater fees than permitted under the state merit review guidelines. The North American Securities Administrators Association, Inc. (NASAA) is an organization of state securities administrators, those state government agencies responsible for qualifying securities offerings in their respective states. NASAA has established standards for the qualification of a number of different types of securities offerings and investment products, including its Statement of Policy on Equipment Programs (the NASAA Equipment Leasing Guidelines). Article IV, Sections C through G of the NASAA Equipment Leasing Guidelines establish the standards for payment of reasonable carried interests, promotional interests and fees for equipment acquisition, management, resale and releasing services to equipment leasing program sponsors. Article IV, Sections C through G of the NASAA Equipment Leasing Guidelines set the maximum compensation payable to the sponsor and its affiliates from an equipment leasing program such as the Fund. The Asset Management Fee Limit will equal the maximum compensation payable under Article IV, Sections C through G of the NASAA Equipment Leasing Guidelines as in effect on the date of the Fund's prospectus (the NASAA Fee Limitation). Under the Asset Management Fee Limit, the Fund will calculate the maximum fees payable under the NASAA Fee Limitation and guarantee that the Asset Management Fee it will pay the Manager and its Affiliates, when added to its Carried Interest, will never exceed the fees and interests payable to a sponsor and its affiliates under the NASAA Fee Limitation.
The Asset Management Fee Limit will be calculated each year during the Fund's term by calculating the total fees that would be paid to the Manager if the Manager were to be compensated on the basis of the maximum compensation payable under the NASAA Fee Limitation, including the Manager's Carried Interest, as described below. To the extent that the amount paid as Front End Fees, the Asset Management Fee, and the Carried Interest for any year would cause the total fees to exceed the aggregate amount of fees calculated under the NASAA Fee Limitation for the year, the Asset Management Fee and/or Carried Interest for that year will be reduced to equal the maximum aggregate fees under the NASAA Fee Limitation. To the extent any such fees are reduced, the amount of such reduction will be accrued and deferred, and such accrued and deferred compensation would be paid to the Manager in a subsequent period, but only to the extent that the deferred compensation would be within the Asset Management Fee Limit for that later period. Any deferred fees that cannot be paid under the applicable limitations through the date of liquidation would be forfeited by the Manager at liquidation.
Under the NASAA Equipment Leasing Guidelines, the Fund is required to commit a minimum percentage of the Gross Proceeds to Investment in Equipment, calculated as the greater of: (i) 80% of the Gross Proceeds reduced by 0.0625% for each 1% of indebtedness encumbering the Fund's equipment; or (ii) 75% of such Gross Proceeds. The Fund intends to incur total indebtedness equal to 50% of the aggregate cost of its equipment. The Operating Agreement requires the Fund to commit at least 85.875% of the Gross Proceeds to Investment in Equipment. Based on the formula in the NASAA Guidelines, the Fund's minimum Investment in Equipment would equal 76.875% of Gross Proceeds (80% [50%× .0625%] = 76.875%), and the Fund's minimum Investment in Equipment would therefore exceed the NASAA Fee Limitation minimum by 9%.
The amount of the Carried Interest permitted the Manager under the NASAA Fee Limitation will be dependent on the amount by which the percentage of Gross Proceeds the Fund ultimately commits to Investment in Equipment exceeds the minimum Investment in Equipment under the NASAA Fee Limitation. The NASAA Fee Limitation permits the Manager and its Affiliates to receive compensation in the form of a carried interest in Fund Net Income, Net Loss and Distributions equal to 1% for the first 2.5% of excess Investment in Equipment over the NASAA Guidelines minimum, 1% for the next 2% of such excess, and 1% for each additional 1% of excess Investment in Equipment. With a minimum Investment in Equipment of 85.875%, the Manager and its Affiliates may receive an additional carried interest equal to 6.5% of Net Profit, Net Loss and Distributions under the foregoing formula (2.5% + 2% + 4.5% = 9%; 1% + 1% + 4.5% = 6.5%). At the lowest permitted level of Investment in Equipment, the NASAA Guidelines would permit the Manager and its Affiliates to receive a promotional interest equal to 5% of Distributions of Cash from Operations and 1% of Distributions of Sale or Refinancing Proceeds until Members have received total Distributions equal to their Original Invested Capital plus an 8% per annum cumulative return on their Adjusted Invested Capital, and, thereafter, the promotional interest may increase to 15% of all Distributions.
43
With the additional carried interest calculated as described above, the maximum aggregate fees payable to the Manager and Affiliates under the NASAA Guidelines as carried interest and promotional interest would equal 11.5% of Distributions of Cash from Operations (6.5% + 5% = 11.5%), and 7.5% of Distributions of Sale or Refinancing Proceeds (6.5% + 1% = 7.5%), before the subordination level was reached, and 21.5% of all Distributions thereafter. The maximum amounts to be paid under the terms of the Operating Agreement are subject to the application of the Asset Management Fee Limit provided in Section 8.3 of the Agreement, which limits the annual amount payable to the Manager and its Affiliates as the Asset Management Fee and the Carried Interest to an aggregate not to exceed the total amount of fees that would be payable to the Manager and its Affiliates under the NASAA Fee Limitation.
Upon completion of the offering of Units, final commitment of offering proceeds to acquisition of equipment and establishment of final levels of permanent portfolio debt, the Manager will calculate the maximum carried interest and promotional interest payable to the Manager and its Affiliates under the NASAA Fee Limitation and compare such total permitted fees to the total of the Asset Management Fee and Manager's Carried Interest. If and to the extent that the Asset Management Fee and Manager's Carried Interest would exceed the fees calculated under the NASAA Fee Limitation, the fees payable to the Manager and its Affiliates will be reduced by an amount sufficient to cause the total of such compensation to comply with the NASAA Fee Limitation. The adjusted Asset Management Fee Limit will then be applied to the Asset Management Fee and Carried Interest as described above. A comparison of the Front End Fees actually paid by the Fund and the NASAA Fee Limitation maximums will be repeated, and any required adjustments will be made, at least annually thereafter.
See Note 7 to the financial statements as set forth in Part II, Item 8, Financial Statements and Supplementary Data, for amounts paid.
Item 12. | SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS |
At December 31, 2013, no investor is known to hold beneficially more than 5% of the issued and outstanding Units.
The parent of AFS is the beneficial owner of Limited Liability Company Units as follows:
(1) Title of Class |
(2) Name and Address of Beneficial Owner |
(3) Amount and Nature of Beneficial Ownership |
(4) Percent of Class |
|||
Limited Liability Company Units | ATEL Capital Group The Transamerica Pyramid 600 Montgomery Street, 9th Floor San Francisco, CA 94111 |
Initial Limited Liability Company Units 50 Units ($500) |
0.0003% |
See Item 8 of this report under the caption Financial Statements and Supplementary Data Notes to Financial Statements Related party transactions at Note 7 thereof.
During the years ended December 31, 2013 and 2012, the Company incurred audit, audit related and/or other fees with its principal auditors as follows (in thousands):
2013 | 2012 | |||||||
Audit fees | $ | 49 | $ | 54 | ||||
Other fees | 1 | | ||||||
$ | 50 | $ | 54 |
Audit fees consist of the aggregate fees and expenses billed in connection with the audit of the Companys annual financial statements and the review of the financial statements included in the Companys quarterly reports on Form 10-Q.
Other fees represent costs incurred in connection with various Agreed-Upon Procedures engagements.
44
The board of directors of the Managing Member acts as the audit committee of the registrant. Engagements for audit services, audit related services and tax services are approved in advance by the Chief Financial Officer of the Managing Member acting on behalf of the board of directors of the Managing Member in its role as the audit committee of the Company.
(a) | Financial Statements and Schedules |
1. | Financial Statements |
2. | Financial Statement Schedules |
All schedules for which provision is made in the applicable accounting regulations of the Securities and Exchange Commission are not required under the related instructions or are inapplicable and, therefore, have been omitted.
(b) | Exhibits |
(3) and (4) Amended and Restated Limited Liability Company Operating Agreement, included as exhibit B to the Prospectus effective September 26, 2007 as filed on October 2, 2007 (File Number 333-142034) is hereby incorporated herein by reference
(14.1) | Code of Ethics |
(31.1) | Certification of Dean L. Cash pursuant to Rules 13a-14(a)/15d-14(a) |
(31.2) | Certification of Paritosh K. Choksi pursuant to Rules 13a-14(a)/15d-14(a) |
(32.1) | Certification of Dean L. Cash pursuant to 18 U.S.C. section 1350 |
(32.2) | Certification of Paritosh K. Choksi pursuant to 18 U.S.C. section 1350 |
(101.INS) | XBRL Instance Document |
(101.SCH) | XBRL Taxonomy Extension Schema Document |
(101.CAL) | XBRL Taxonomy Extension Calculation Linkbase Document |
(101.LAB) | XBRL Taxonomy Extension Label Linkbase Document |
(101.PRE) | XBRL Taxonomy Extension Presentation Linkbase Document |
(101.DEF) | XBRL Taxonomy Extension Definition Linkbase Document |
45
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.
Date: March 14, 2014
ATEL 12, LLC
(Registrant)
By: ATEL Financial Services, LLC |
By: /s/ Dean L. Cash |
By: /s/ Paritosh K. Choksi |
By: /s/ Samuel Schussler |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the persons in the capacities and on the dates indicated.
SIGNATURE | CAPACITIES | DATE | ||
/s/ Dean L. Cash Dean L. Cash |
Chairman of the Board, President and Chief Executive Officer of ATEL Financial Services, LLC (Managing Member) | March 14, 2014 | ||
/s/ Paritosh K. Choksi Paritosh K. Choksi |
Director, Executive Vice President and Chief Financial Officer and Chief Operating Officer of ATEL Financial Services, LLC (Managing Member) | March 14, 2014 | ||
/s/ Samuel Schussler Samuel Schussler |
Vice President and Chief Accounting Officer of ATEL Financial Services, LLC (Managing Member) |
March 14, 2014 |
No proxy materials have been or will be sent to security holders. An annual report will be furnished to security holders subsequent to the filing of this report on Form 10-K, and copies thereof will be furnished supplementally to the Commission when forwarded to the security holders.
46
Exhibit 14.1
This Code of Ethics is applicable to ATEL 12, LLC (Fund 12), including the Chief Executive Officer and Chief Financial Officer and Chief Operating Officer of its Manager, ATEL Financial Services, LLC (AFS), or persons acting in such capacity (collectively the Covered Officers) on behalf of Fund 12, referred to herein as the Company.
Accordingly, under the Securities and Exchange Commissions interpretation of its disclosure rules, the Board of Directors of AFS, functions as the de facto audit committee for the Company with respect to all procedural and disclosure requirements applicable to audit committees under Securities and Exchange Commission rules. The Board of Directors shall have oversight responsibility over the activities of the Company for purposes of this Code of Ethics.
The Company is proud of the values with which it conducts business. It has and will continue to uphold the highest levels of business ethics and personal integrity in all types of transactions and interactions. To this end, this Code of Ethics serves to (1) emphasize the Companys commitment to ethics and compliance with the law; (2) set forth basic standards of ethical and legal behavior; (3) provide reporting mechanisms for known or suspected ethical or legal violations; and (4) help prevent and detect wrongdoing. This Code of Ethics is intended to augment and supplement the standard of ethics and business conduct expected of all Company employees, and its limitation to Covered Officers is not intended to limit the obligation of all Company employees to adhere to the highest standards of business ethics and integrity in all transactions and interactions conducted while in the Companys employ.
Given the variety and complexity of ethical questions that may arise in the course of business of the Company, this Code of Ethics serves only as a rough guide. Confronted with ethically ambiguous situations, the Covered Officers should remember the Companys commitment to the highest ethical standards and seek independent advice, where necessary, to ensure that all actions they take on behalf of the Company honor this commitment.
The Covered Officers shall behave honestly and ethically at all times and with all people. They shall act in good faith, with due care, and shall engage only in fair and open competition, by treating ethically competitors, suppliers, customers, and colleagues. They shall not misrepresent facts or engage in illegal, unethical, or anti-competitive practices for personal or professional gain.
This fundamental standard of honest and ethical conduct extends to the handling of conflicts of interest. The Covered Officers shall avoid any actual, potential, or apparent conflicts of interest with the Company, and any personal activities, investments, or associations that might give rise to such conflicts. They shall not compete with or use the Company, for personal gain, self-deal, or take advantage of any corporate opportunities. They shall act on behalf of the Company free from improper influence or the appearance of improper influence on their judgment or performance of duties. A Covered Officer shall disclose any material transaction or relationship that reasonably could be expected to give rise to such a conflict to the Companys General Counsel or a member of the Companys Board of Directors. No action may be taken with respect to such transaction or party unless and until the Companys Board of Directors has approved such action.
Notwithstanding the foregoing, it is understood, as fully disclosed in the offering documents for the Company, that AFS as managing member of the Company has certain inherent conflicts of interest. The provisions of the Companys Operating Agreement have been drafted to address the obligations, restrictions and limitations on the power and authority of AFS to manage the Companys affairs, including restrictions prohibiting or limiting the terms of any transactions in which conflicts of interest may arise. Furthermore, AFS has a fiduciary duty to the Company as its
manager. It is therefore expressly understood by the Company and the Covered Officers that any and all actions by AFS and its personnel that comply with the provisions of the Companys Operating Agreement, and which are consistent with AFSs fiduciary duty to the Company, will not be considered material transactions or relationships which require disclosure or reporting under this Code of Ethics.
In reports and documents filed with or submitted to the Securities and Exchange Commission and other regulators by the Company and in other public communications made by the Company, the Covered Officers shall make disclosures that are full, fair, accurate, timely, and understandable. The Covered Officers shall provide thorough and accurate financial and accounting data for inclusion in such disclosures. The Covered Officers shall not knowingly conceal or falsify information, misrepresent material facts, or omit material facts necessary to avoid misleading the Companys independent public auditors or investors.
In conducting the business of the Company, the Covered Officers shall comply with applicable governmental laws, rules, and regulations at all levels of government in the United States and in any non-U.S. jurisdiction in which the Company does business, as well as applicable rules and regulations of self-regulatory organizations of which the Company is a member. If the Covered Officer is unsure whether a particular action would violate an applicable law, rule, or regulation, he or she should seek the advice of inside counsel (if available), and, where necessary, outside counsel before undertaking it.
The Covered Officers will promptly bring to the attention of the Companys General Counsel or the Board of Directors any information concerning a material violation of any of the laws, rules or regulations applicable to the Company and the operation of its businesses, by the Company or any agent thereof, or of violation of this Code of Ethics. The Companys General Counsel will investigate reports of violations and the findings communicated to the Companys Board of Directors.
If the Companys Board of Directors determines that this Code of Ethics has been violated, either directly, by failure to report a violation, or by withholding information related to a violation, it may discipline the offending Covered Officer for non-compliance with penalties up to and including termination of employment. Violations of this Code of Ethics may also constitute violations of law and may result in criminal penalties and civil liabilities for the offending Covered Officer and the Company.
Exhibit 31.1
I, Dean L. Cash, certify that:
1. | I have reviewed this annual report on Form 10-K of ATEL 12, LLC; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and |
b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: March 14, 2014
/s/ Dean L. Cash Dean L. Cash Chairman of the Board, President and Chief Executive Officer of ATEL Financial Services, LLC (Managing Member) |
Exhibit 31.2
I, Paritosh K. Choksi, certify that:
1. | I have reviewed this annual report on Form 10-K of ATEL 12, LLC; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and |
b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: March 14, 2014
/s/ Paritosh K. Choksi Paritosh K. Choksi Director, Executive Vice President and Chief Financial Officer and Chief Operating Officer of ATEL Financial Services, LLC (Managing Member) |
Exhibit 32.1
In connection with the Annual Report of ATEL 12, LLC (the Company) on Form 10-K for the year ended December 31, 2013 as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Dean L. Cash, Chairman of the Board, President and Chief Executive Officer of ATEL Financial Services, LLC, Managing Member of the Company, hereby certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that:
1. | The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
2. | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
Date: March 14, 2014
/s/ Dean L. Cash Dean L. Cash Chairman of the Board, President and Chief Executive Officer of ATEL Financial Services, LLC (Managing Member) |
A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.
Exhibit 32.2
In connection with the Annual Report of ATEL 12, LLC (the Company) on Form 10-K for the year ended December 31, 2013 as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Paritosh K. Choksi, Director, Executive Vice President and Chief Financial Officer and Chief Operating Officer of ATEL Financial Services, LLC, Managing Member of the Company, hereby certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that:
1. | The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
2. | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
Date: March 14, 2014
/s/ Paritosh K. Choksi Paritosh K. Choksi Director, Executive Vice President and Chief Financial Officer and Chief Operating Officer of ATEL Financial Services, LLC (Managing Member) |
A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.
Notes Receivable, Net (Initial Direct Costs, Amortization Expense Related to Notes Receivable and Company's Operating and Direct Finance Leases) (Details) (USD $)
In Thousands, unless otherwise specified |
12 Months Ended | |
---|---|---|
Dec. 31, 2013
|
Dec. 31, 2012
|
|
Initial Direct Costs Notes Receivable And Lease Assets [Line Items] | ||
Amortization of initial direct costs | $ 33 | $ 50 |
Notes Receivable [Member]
|
||
Initial Direct Costs Notes Receivable And Lease Assets [Line Items] | ||
Amortization of initial direct costs | 6 | 8 |
Lease Assets [Member]
|
||
Initial Direct Costs Notes Receivable And Lease Assets [Line Items] | ||
Amortization of initial direct costs | $ 27 | $ 42 |
Borrowing Facilities (Narrative) (Details) (USD $)
|
Dec. 31, 2013
|
Dec. 31, 2012
|
Jan. 31, 2014
Subsequent Event [Member]
|
Dec. 31, 2013
Covenant Requirement [Member]
Maximum [Member]
|
Dec. 31, 2013
Covenant Requirement [Member]
Minimum [Member]
|
Dec. 31, 2013
Warehouse Facility [Member]
|
Dec. 31, 2012
Warehouse Facility [Member]
|
---|---|---|---|---|---|---|---|
Line of Credit Facility [Line Items] | |||||||
Maximum amount of Credit Facility | $ 60,000,000 | $ 60,000,000 | $ 75,000,000 | ||||
Credit Facility expiration date | 2014-06 | 2015-06 | |||||
Tangible net worth requirement under the Credit Facility | 7,500,000 | ||||||
Leverage ratio | 0.41 | 1.25 | |||||
Interest coverage ratio | 35.10 | 2 | |||||
Net Worth | 9,600,000 | ||||||
Outstanding borrowings under facility | $ 0 | $ 0 | $ 0 | $ 0 |
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