Attached files

file filename
EX-32.3 - CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 - ICON LEASING FUND TWELVE, LLCex32-3.htm
EX-32.1 - CERTIFICATION OF CO-CHIEF EXECUTIVE OFFICER PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 - ICON LEASING FUND TWELVE, LLCex32-1.htm
EX-31.2 - CERTIFICATION OF CO-CHIEF EXECUTIVE OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 - ICON LEASING FUND TWELVE, LLCex31-2.htm
EX-32.2 - CERTIFICATION OF CO-CHIEF EXECUTIVE OFFICER PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 - ICON LEASING FUND TWELVE, LLCex32-2.htm
EX-31.3 - CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 - ICON LEASING FUND TWELVE, LLCex31-3.htm
EX-31.1 - CERTIFICATION OF CO-CHIEF EXECUTIVE OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 - ICON LEASING FUND TWELVE, LLCex31-1.htm
 



UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 10-K

þ
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
 
SECURITIES EXCHANGE ACT OF 1934
   
 
For the fiscal year ended December 31, 2009
   
 
OR
   
o
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
 
SECURITIES EXCHANGE ACT OF 1934
   
   For the transitional period from _____ to _____

Commission file number: 000-53189
 
ICON Leasing Fund Twelve, LLC
 (Exact name of registrant as specified in its charter)
 
Delaware
 
20-5651009
(State or other jurisdiction of incorporation or organization)
 
(I.R.S. Employer Identification No.)
     
100 Fifth Avenue, 4th Floor
New York, New York
 
 
10011
(Address of principal executive offices)
 
(Zip Code)

(212) 418-4700
(Registrant’s telephone number, including area code)
 
Securities registered pursuant to Section 12(b) of the Act:  None
 
Securities registered pursuant to Section 12(g) of the Act:  Shares of Limited Liability Company Interests
 
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
Yes     No þ
 
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.
Yes     No þ
 
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes þ    No 
 
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    No 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.    
þ

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer       Accelerated filer         Non-accelerated filer þ     Smaller reporting company 
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
   Yes     No þ
 
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 last sold, or the average bid and asked price of such common equity, as of the last business day of the registrant’s most recently completed second fiscal quarter:  Not applicable.  There is no established market for shares of limited liability company interests of the registrant.
 
Number of outstanding shares of limited liability company interests of the registrant on March 19, 2010 is 348,510.

DOCUMENTS INCORPORATED BY REFERENCE
None.




 
 
Page
1
1
7
23
23
23
23
   
24
24
26
27
51
53
94
94
95
   
96
96
98
99
99
99
   
100
100
101
 



Forward-Looking Statements

Certain statements within this Annual Report on Form 10-K may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 (“PSLRA”).  These statements are being made pursuant to the PSLRA, with the intention of obtaining the benefits of the “safe harbor” provisions of the PSLRA, and, other than as required by law, we assume no obligation to update or supplement such statements.  Forward-looking statements are those that do not relate solely to historical fact.  They include, but are not limited to, any statement that may predict, forecast, indicate or imply future results, performance, achievements or events.  You can identify these statements by the use of words such as “may,” “will,” “could,” “anticipate,” “believe,” “estimate,” “expect,” “continue,” “further,” “plan,” “seek,” “intend,” “predict” or “project” and variations of these words or comparable words or phrases of similar meaning.  These forward-looking statements reflect our current beliefs and expectations with respect to future events and are based on assumptions and are subject to risks and uncertainties and other factors outside our control that may cause actual results to differ materially from those projected.  We undertake no obligation to update publicly or review any forward-looking statement, whether as a result of new information, future developments or otherwise.


Our History

ICON Leasing Fund Twelve, LLC (the “LLC” or “Fund Twelve”) was formed on October 3, 2006 as a Delaware limited liability company.  The LLC will continue until December 31, 2026, unless terminated sooner.  When used in this Annual Report on Form 10-K, the terms “we,” “us,” “our” or similar terms refer to the LLC and its consolidated subsidiaries.

Our manager is ICON Capital Corp., a Delaware corporation (our “Manager”). Our Manager manages and controls our business affairs, including, but not limited to, our equipment leases and other financing transactions that we enter into pursuant to the terms of our limited liability company agreement (our “LLC Agreement”).

Our offering period ended on April 30, 2009 and our operating period commenced on May 1, 2009. Our initial capitalization was $2,000, which consisted of contributions of $1,000 from our Manager and $1,000 from an officer of our Manager. We offered shares of limited liability company interests (“Shares”) on a “best efforts” basis with the intention of raising up to $410,800,000 of capital, consisting of 400,000 Shares at a purchase price of $1,000 and an additional 12,000 Shares, which were reserved for issuances pursuant to our distribution reinvestment plan (our “Distribution Reinvestment Plan”).  The Distribution Reinvestment Plan allowed investors to purchase additional Shares with distributions received from us and/or certain other funds managed by our Manager at a discounted share price of $900.  As of April 30, 2009, approximately 11,393 Shares were issued in connection with our Distribution Reinvestment Plan.  Upon raising the minimum of $1,200,000, additional members were admitted.  Additional members represent all members other than our Manager.


 

Our Business

We operate as an equipment leasing and finance program in which the capital our members invested was pooled together to make investments, pay fees and establish a small reserve. We primarily acquire equipment subject to lease, purchase equipment and lease it to third-party end users or finance equipment for third parties and, to a lesser degree, acquire ownership rights to items of leased equipment at lease expiration. Some of our equipment leases are acquired for cash and are expected to provide current cash flow, which we refer to as “income” leases. For our other equipment leases, we finance the majority of the purchase price through borrowings from third parties. We refer to these leases as “growth” leases. These growth leases generate little or no current cash flow because substantially all of the rental payments received from the lessee are used to service the indebtedness associated with acquiring or financing the lease. For these leases, we anticipate that the future value of the leased equipment will exceed the cash portion of the purchase price.

We divide the life of the program into three distinct phases:

 
(1) Offering Period: We invested most of the net proceeds from the sale of Shares in equipment leases and other financing transactions.

 
(2) Operating Period: After the close of the offering period, we reinvested and continue to reinvest the cash generated from our initial investments to the extent that cash is not needed for our expenses, reserves and distributions to members. We anticipate that the operating period will end five years from the end of our offering period.  However, our Manager may, at its sole discretion, extend the operating period for up to an additional three years.

 
(3) Liquidation Period: After the operating period, we will then sell our assets in the ordinary course of business. Our goal is to complete the liquidation period within three years from the end of the operating period, but it may take longer to do so.

At December 31, 2009 and 2008, we had total assets of $620,978,386 and $438,585,542, respectively. For the year ended December 31, 2009, we had three lessees that accounted for approximately 56.0% of our total rental and finance income of $66,851,398. Net income attributable to us for the year ended December 31, 2009 was $13,858,916. For the year ended December 31, 2008, we had three lessees that accounted for approximately 55.0% of our total rental and finance income of $26,635,823. Net income attributable to us for the year ended December 31, 2008 was $5,942,580.  For the year ended December 31, 2007, four lessees accounted for approximately 99.6% of our total rental and finance income of $4,508,242. Net income attributable to us for the year ended December 31, 2007 was $116,852.

Our initial closing date was May 25, 2007 (the “Commencement of Operations”), the date at which we raised $1,200,000.  From the Commencement of Operations to April 30, 2009, we sold approximately 348,826 Shares, representing $347,686,947 of capital contributions and admitted 6,503 additional members. In addition, pursuant to the terms of our offering, we established a reserve in the amount of 0.5% of the gross offering proceeds. As of December 31, 2009, the reserve is in the amount of $1,738,435, or 0.5% of the gross offering proceeds of $347,686,947 raised as of the end of our offering on April 30, 2009. Through December 31, 2009, we repurchased 117 Shares pursuant to our repurchase plan. Beginning with the Commencement of Operations through April 30, 2009, we paid $26,995,024 of sales commissions to third parties, $5,488,440 of organizational and offering expense allowance to our Manager and $6,748,756 of underwriting fees to ICON Securities Corp., a wholly-owned subsidiary of our Manager (“ICON Securities”), the dealer-manager of our offering.


 

At December 31, 2009, our portfolio, which we hold either directly or through joint ventures, consisted primarily of the following investments:

Marine Vessels and Equipment

·  
We have a 51% ownership interest in ICON Mayon, LLC (“ICON Mayon”), which purchased an Aframax product tanker, the Mayon Spirit, from an affiliate of the Teekay Corporation (“Teekay”) on July 24, 2007.  The Mayon Spirit has a 48-month bareboat charter that expires on July 23, 2011.

·  
We, through our wholly-owned subsidiaries ICON Arabian Express, LLC (“ICON Arabian”) and ICON Aegean Express, LLC (“ICON Aegean”), own two 1,500 twenty-foot equivalent unit (“TEU”) containership vessels that we acquired from Vroon Group B.V. (“Vroon”) on April 24, 2008. The vessels are subject to 72-month bareboat charters with subsidiaries of Vroon that expire on April 23, 2014.

·  
We, through our wholly-owned subsidiary, ICON Eagle Holdings, LLC (“ICON Eagle Holdings”), own two Aframax product tankers that we acquired from Aframax Tanker I AS, the M/V Eagle Auriga (the “Eagle Auriga”) and the M/V Eagle Centaurus (the “Eagle Centaurus”). The Eagle Auriga and the Eagle Centaurus are subject to 84-month bareboat charters with AET, Inc. Limited (“AET”) that expire on November 14, 2013 and November 13, 2013, respectively.  

·  
We have a 64.3% ownership interest in ICON Eagle Carina Holdings, LLC (“ICON Carina Holdings”), which owns ICON Eagle Carina Pte. Ltd. (“ICON Eagle Carina”), which purchased the Aframax product tanker M/V Eagle Carina (the “Eagle Carina”) from Aframax Tanker II AS. The Eagle Carina is subject to an 84-month bareboat charter with AET that expires on November 14, 2013.

·  
We have a 64.3% ownership interest in ICON Eagle Corona Holdings, LLC (“ICON Corona Holdings”), which owns ICON Eagle Corona Pte. Ltd. (“ICON Eagle Corona”), which purchased the Aframax product tanker M/V Eagle Corona (the “Eagle Corona”) from Aframax Tanker II AS. The Eagle Corona is subject to an 84-month bareboat charter with AET that expires on November 14, 2013. 

·  
We, through Victorious, LLC (“Victorious”), a Marshall Islands limited liability company controlled by us through our wholly-owned subsidiary, ICON Victorious, LLC (“ICON Victorious”), own a 300-man accommodation and work barge (the “Barge”) that was purchased from Swiber Engineering Ltd. (“Swiber”). The Barge is subject to a 96-month bareboat charter with Swiber Offshore Marine Pte. Ltd. (the “Charterer”) that expires on March 23, 2017. 

·  
We, through our wholly-owned subsidiaries, ICON Diving Marshall Islands, LLC (“ICON Diving Marshall Islands”) and ICON Diving Netherlands, B.V., own certain marine diving equipment (the “Diving Equipment”) that was purchased from Swiber. The Diving Equipment is subject to a 60-month lease with Swiber Offshore Construction Pte. Ltd. that expires on June 30, 2014.

·  
We, through our wholly-owned subsidiaries, ICON Mynx Pte. Ltd. (“ICON Mynx”), ICON Stealth Pte. Ltd. (“ICON Stealth”) and ICON Eclipse Pte. Ltd. (“ICON Eclipse”), own three barges (each a “Leighton Vessel” and, collectively, the “Leighton Vessels”). Each of the Leighton Vessels is subject to a 96-month bareboat charter that expires on June 25, 2017.

·  
We, through our wholly-owned subsidiary, ICON Ionian, LLC (“ICON Ionian”), a Marshall Islands limited liability company, own a product tanker vessel, the Ocean Princess (the “Ocean Princess”).  The Ocean Princess is subject to a 60-month bareboat charter that expires on October 30, 2014.
 
 

 
Manufacturing Equipment

·  
We own machining and metal working equipment subject to lease with MW Crow, Inc. (“Crow”), a wholly-owned subsidiary of MW Universal, Inc. (“MWU”), and Metavation, LLC, an affiliate of Crow (“Metavation”). The equipment is subject to 60-month leases that expire on December 31, 2012.

·  
We have a 55% ownership interest in ICON EAR, LLC (“ICON EAR”), which purchased and simultaneously leased back semiconductor manufacturing equipment to Equipment Acquisition Resources, Inc. (“EAR”). The lease was scheduled to expire on June 30, 2013; however, in October 2009, certain facts came to light that led our Manager to believe that EAR was perpetrating a fraud against EAR’s lenders, including ICON EAR. On October 23, 2009, EAR filed a petition for reorganization under Chapter 11 of the U.S. Bankruptcy Code. Our Manager concluded that the net book value of the semiconductor manufacturing equipment exceeded the fair value and, as a result, we recognized a non-cash impairment charge of approximately $3,429,000.

·  
We, through our wholly-owned subsidiary, ICON French Equipment II, LLC (“ICON French Equipment II”), own auto parts manufacturing equipment on lease to Sealynx Automotive Transieres SAS (“Sealynx”). The equipment is subject to a 60-month lease that expires on February 28, 2013.

·  
We have a 45% ownership interest in ICON Pliant, LLC (“ICON Pliant”), which owns manufacturing equipment purchased from and simultaneously leased back to Pliant Corporation (“Pliant”). The equipment is subject to a 60-month lease that expires on September 30, 2013.

Mining Equipment

·  
We, through our wholly-owned subsidiary, ICON Magnum, LLC (“ICON Magnum”), own a Bucyrus Erie model 1570 Dragline (the “Dragline”). The Dragline is subject to a 60-month lease that expires on May 31, 2013.

·  
We, through our wholly-owned subsidiary, ICON Murray, LLC (“ICON Murray”), own mining equipment that is subject to a 24-month lease that expires on March 31, 2011.

·  
We, through our wholly-owned subsidiary, ICON Murray II, LLC (“ICON Murray II”), own mining equipment that is subject to a 30-month lease that expires on December 31, 2011.

Telecommunications Equipment

·  
We, through our wholly-owned subsidiary, ICON Global Crossing IV, LLC (“ICON Global Crossing IV”), own telecommunications equipment that is subject to two 36-month leases and one 48-month lease with Global Crossing Telecommunications, Inc. (“Global Crossing”). The leases expire in March 2011, November 2011 and March 2012.

Motor Coaches

·  
We, through our wholly-owned subsidiary, ICON Coach, LLC (“ICON Coach”), have title to certain motor coaches purchased from CUSA PRTS, LLC (“CUSA”), an affiliate of Coach America Holdings, Inc. (“Coach America”). The motor coaches are subject to a 60-month lease that expires on March 31, 2014.
 
 

 
Gas Compressors

·  
We have a 55% ownership interest in ICON Atlas, LLC (“ICON Atlas”), which owns eight Ariel natural gas compressors (the “Gas Compressors”) that were purchased from AG Equipment Co. (“AG”). The Gas Compressors are subject to 48-month leases with Atlas Pipeline Mid-Continent, LLC (“APMC”) that expire on August 31, 2013.

Note Receivable Secured by a Machine Paper Coating Manufacturing Line

·  
We, through our wholly-owned subsidiary, ICON Appleton, LLC (“ICON Appleton”), provided a secured term loan to Appleton Papers, Inc. (“Appleton”). The loan is secured by a machine paper coating manufacturing line.

Notes Receivable Secured by Credit Card Machines

·  
We have a 52.75% ownership interest in ICON Northern Leasing, LLC (“ICON Northern Leasing”), which holds four promissory notes (the “Notes”) issued by Northern Capital Associates XIV, L.P. (“NCA XIV”), as borrower, in favor of Merrill Lynch Commercial Finance Corp. The Notes are secured by an underlying pool of leases for credit card machines.

·  
We, through our wholly-owned subsidiary, ICON Northern Leasing II, LLC (“ICON Northern Leasing II”), provided a senior secured loan to Northern Capital Associates XV, L.P. (“NCA XV”) and NCA XIV. The loan is secured by an underlying pool of leases for credit card machines.

Notes Receivable Secured by Analog Seismic System Equipment

·  
We have a 55% ownership interest in ICON ION, LLC (“ICON ION”), which provided secured term loans (the “ION Loans”) to ARAM Rentals Corporation, a Canadian bankruptcy remote Nova Scotia unlimited liability company (“ARC”) and ARAM Seismic Rentals Inc., a U.S. bankruptcy remote Texas corporation (“ASR,” together with ARC, collectively referred to as the “ARAM Borrowers”). The ION Loans are secured by (i) a first priority security interest in all of the ARAM analog seismic system equipment owned by the ARAM Borrowers and (ii) a pledge of all of the equity interests in the ARAM Borrowers.

Note Receivable Secured by Rail Support Construction Equipment

·  
We have a 55% ownership interest in ICON Quattro, LLC (“ICON Quattro”), which participted in a £24,800,000 loan facility by making a second priority secured term loan to Quattro Plant Limited (“Quattro Plant”) in the amount of £5,800,000.  The loan is secured by (i) all of Quattro Plant’s rail support construction equipment, which consists of railcars, attachments to railcars, bulldozers, excavators, tractors, lowboy trailers, street sweepers, service trucks, forklifts (collectively, the “Construction Equipment”) and any other existing or future asset owned by Quattro Plant, (ii) all of Quattro Plant’s accounts receivable, and (iii) a mortgage over certain real estate in London, England owned by the majority shareholder of Quattro Plant.  In addition, ICON Quattro will receive a key man insurance policy insuring the life of the majority shareholder of ICON Quattro in an amount not less than £5,500,000 and not more than £5,800,000. 
 
 

 
For a discussion of the significant transactions that we engaged in during the years ended December 31, 2009, 2008 and 2007, please refer to “Item 7. Manager’s Discussion and Analysis of Financial Condition and Results of Operations.”

Segment Information
 
We are engaged in one business segment, the business of purchasing equipment and leasing it to third parties, providing equipment and other financing, acquiring equipment subject to lease and, to a lesser degree, acquiring ownership rights to items of leased equipment at lease expiration.

Competition

The commercial leasing and financing industry is highly competitive and is characterized by competitive factors that vary based upon product and geographic region. When we made our current investments and as we seek to make new investments, we competed and compete with a variety of competitors, including other equipment leasing and finance funds, hedge funds, captive and independent finance companies, commercial and industrial banks, manufacturers and vendors. Competition from both traditional competitors and new market entrants has intensified in recent years due to growing marketplace liquidity and increasing recognition of the attractiveness of the commercial leasing and finance industry.  Our competitors may have been and/or may be in a position to offer equipment to prospective customers on financial terms that were or are more favorable than those that we could offer or that we can currently offer, which may have affected our ability to make our current investments and may affect our ability to make future investments, in each case, in a manner that would enable us to achieve our investment objectives. For additional information about our competition and other risks related to our operations, please see “Item 1A. Risk Factors.”

Employees

We have no direct employees.  Our Manager has full and exclusive control over our management and operations.

Available Information
 
Our Annual Report on Form 10-K, our most recent Quarterly Reports on Form 10-Q and any amendments to those reports and our Current Reports on Form 8-K and any amendments to those reports are available free of charge on our Manager’s internet website at http://www.iconcapital.com as soon as reasonably practicable after such reports are electronically filed with or furnished to the Securities and Exchange Commission (the “SEC”). The information contained on our Manager’s website is not deemed part of this Annual Report on Form 10-K. Our reports are also available on the SEC’s website at http://www.sec.gov.

Financial Information Regarding Geographic Areas
 
We have long-lived assets, which include finance leases and operating leases, and we generate revenues in geographic areas outside of the United States. For additional information, see Note 14 to our consolidated financial statements.
 



We are subject to a number of risks.  Careful consideration should be given to the following risk factors, in addition to the other information included in this Annual Report. The risks and uncertainties described below are not the only ones we may face.  Each of these risk factors could adversely affect our business operating results and/or financial condition, as well as adversely affect the value of an investment in our Shares.  In addition to the following disclosures, please refer to the other information contained in this Annual Report including the consolidated financial statements and the related notes.

General Investment Risks

All or a substantial portion of your distributions may be a return of capital and not a return on capital, which will not necessarily be indicative of our performance.

The portion of total distributions that is a return of capital and the portion that is economic return will depend upon a number of factors that cannot be determined until all of our investments have been sold or otherwise matured. At that time, you will be able to compare the total amount of all cash distributions you receive to your total capital invested in order to determine your economic return.

The Internal Revenue Service (the “IRS”) may deem the majority of your distributions to be a return of capital for tax purposes during our early years. Distributions would be deemed to be a return of capital for tax purposes to the extent that we are distributing cash in an amount greater than our taxable income. The fact that the IRS deems distributions to be a return of capital in part and we report an adjusted tax basis to you on Form K-1 is not an indication that we are performing greater than or less than expectations and cannot be utilized to forecast what your final return might be.

Your ability to resell your Shares is limited by the absence of a public trading market and, therefore, you should be prepared to hold your Shares for the life of the fund.

A public market does not exist for our Shares and we do not anticipate that a public market will develop for our Shares, our Shares are not currently and will not be listed on any national securities exchange at any time, and we will take steps to assure that no public trading market develops for our Shares. In addition, our LLC Agreement imposes significant restrictions on your right to transfer your Shares.  We have established these restrictions to comply with federal and State securities laws and so that we will not be considered to be a publicly traded partnership that is taxed as a corporation for federal income tax purposes. Your ability to sell or otherwise transfer your Shares is extremely limited and will depend on your ability to identify a buyer. Thus, you will probably not be able to sell or otherwise liquidate your Shares in the event of an emergency and if you were able to arrange a sale, the price you receive would likely be at a substantial discount to the price you paid for your Shares.  As a result, you must view your investment in our Shares as a long-term, illiquid investment.

If you choose to request that we repurchase your Shares, you may receive significantly less than you would receive if you were to hold your Shares for the life of the fund.

You may request that we repurchase up to all of your Shares. We are under no obligation to do so, however, and will have only limited cash available for this purpose. If we repurchase your Shares, the repurchase price has been unilaterally set and, depending upon when you request repurchase, the repurchase price may be less than the unreturned amount of your investment. If your Shares are repurchased, the repurchase price may provide you a significantly lower value than the value you would realize by retaining your Shares for the duration of the fund.
 
 

You may not receive cash distributions every month and, therefore, you should not rely on any income from your Shares.

You should not rely on the cash distributions from your Shares as a source of income. While we intend to make monthly cash distributions, our Manager may determine it is in our best interest to periodically change the amount of the cash distributions you receive or not make any distributions in some months. Losses from our operations of the types described in these risk factors and unexpected liabilities could result in a reduced level of distributions to you. Additionally, during the liquidation period, although we expect that lump sums will be distributed from time to time if and when financially significant assets are sold, regularly scheduled distributions will decrease because there will be fewer investments available to generate cash flow.

Your Shares may be diluted.

Some investors, including our Manager and its officers, directors and other affiliates, may have purchased Shares at discounted prices and generally will share in our revenues and distributions based on the number of Shares that they purchase, rather than the discounted subscription price paid by them for their Shares. As a result, investors who paid discounted prices for their investments will receive higher returns on their investments in us as compared to investors who paid the entire $1,000 per Share.

Our assets may be plan assets for ERISA purposes, which could subject our Manager to additional restrictions on its ability to operate our business.

The Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and the Internal Revenue Code of 1986, as amended (the “Code”) may apply what is known as the look-through rule to an investment in our Shares. Under that rule, the assets of an entity in which a qualified plan or IRA has made an equity investment may constitute assets of the qualified plan or IRA. If you are a fiduciary of a qualified plan or IRA, you should consult with your advisors and carefully consider the effect of that treatment if that were to occur. If the look-through rule were to apply, our Manager may be viewed as an additional fiduciary with respect to the qualified plan or IRA to the extent of any decisions relating to the undivided interest in our assets represented by the Shares held by such qualified plan or IRA. This could result in some restriction on our Manager’s willingness to engage in transactions that might otherwise be in the best interest of all Share holders due to the strict rules of ERISA regarding fiduciary actions.

The statements of value that we include in this Annual Report on Form 10-K and future Annual Reports on Form 10-K and that we will send to fiduciaries of plans subject to ERISA and to certain other parties is only an estimate and may not reflect the actual value of our Shares.

The statements of estimated value are based on the estimated value of each Share (i) as of the close of our fiscal year, for the annual statements included in this and future Annual Reports on Form 10-K and (ii) as of September 30 of each fiscal year, for annual statements sent to fiduciaries of plans subject to ERISA and certain other parties. Management, in part, will rely upon third-party sources and advice in arriving at this estimated value. No independent appraisals on the particular value of our Shares will be obtained and the value will be based upon an estimated fair market value as of the referenced date for such value. Because this is only an estimate, we may subsequently revise any valuation that is provided. We cannot assure that:

·  
this estimate of value could actually be realized by us or by our members upon liquidation;
·  
members could realize this estimate of value if they were to attempt to sell their Shares;
·  
this estimate of value reflects the price or prices that our Shares would or could trade at if they were listed on a national stock exchange or included for quotation on a national market system, because no such market exists or is likely to develop; or
·  
the statement of value, or the method used to establish value, complies with any reporting and disclosure or valuation requirements under ERISA, Code requirements or other applicable law.
 
 

 
You have limited voting rights and are required to rely on our Manager to make all of our investment decisions and achieve our investment objectives.

Our Manager will make all of our investment decisions, including determining the investments and the dispositions we make. Our success will depend upon the quality of the investment decisions our Manager makes, particularly relating to our investments in equipment and the realization of such investments. You are not permitted to take part in managing, establishing or changing our investment objectives or policies.

The decisions of our Manager may be subject to conflicts of interest.

The decisions of our Manager may be subject to various conflicts of interest arising out of its relationship to us and our affiliates. Our Manager could be confronted with decisions in which it will, directly or indirectly, have an economic incentive to place its respective interests or the interests of our affiliates above ours. As of December 31, 2009, our Manager is managing seven other equipment leasing and finance funds. See “Item 13. Certain Relationships and Related Transactions, and Director Independence.”  These conflicts may include, but are not limited to:

·  
our Manager may receive more fees for making investments in which we incur indebtedness to fund these investments than if indebtedness is not incurred;
·  
our LLC Agreement does not prohibit our Manager or any of our affiliates from competing with us for investments and engaging in other types of business;
·  
our Manager may have opportunities to earn fees for referring a prospective investment opportunity to others;
·  
the lack of separate legal representation for us and our Manager and lack of arm’s-length negotiations regarding compensation payable to our Manager;
·  
our Manager is our tax matters partner and is able to negotiate with the IRS to settle tax disputes that would bind us and our members that might not be in your best interest given your individual tax situation; and
·  
our Manager can make decisions as to when and whether to sell a jointly-owned asset when the co-owner is another business it manages.

The Investment Committee of our Manager is not independent.

Any conflicts in determining and allocating investments between us and our Manager, or between us and another fund managed by our Manager, are resolved by our Manager’s investment committee, which also serves as the investment committee for other funds managed by our Manager. Since all of the members of our Manager’s investment committee are officers of our Manager and are not independent, matters determined by such investment committee, including conflicts of interest between us and our Manager and our affiliates involving investment opportunities, may not be as favorable to you and our other investors as they would be if independent members were on the committee. Generally, if an investment is appropriate for more than one fund, our Manager’s investment committee will allocate the investment to a fund (which includes us) after taking into consideration at least the following factors:
 
·  
whether the fund has the cash required for the investment;
·  
whether the amount of debt to be incurred with respect to the investment is acceptable for the fund;
·  
the effect the investment would have on the fund’s cash flow;
·  
whether the investment would further diversify, or unduly concentrate, the fund’s investments in a particular lessee/borrower, class or type of equipment, location, industry, etc.;
·  
whether the term of the investment is within the term of the fund; and
·  
which fund has been seeking investments for the longest period of time.
 
 
Notwithstanding the foregoing, our Manager’s investment committee may make exceptions to these general policies when, in our Manager’s judgment, other circumstances make application of these policies inequitable or economically undesirable. In addition, our LLC Agreement permits our Manager and our affiliates to engage in equipment acquisitions, financing secured loans, refinancing, leasing and releasing opportunities on their own behalf or on behalf of other funds even if they compete with us.

Our Manager’s officers and employees manage other businesses and will not devote their time exclusively to managing us and our business.

We do not and will not employ our own full-time officers, managers or employees. Instead, our Manager will supervise and control our business affairs. Our Manager’s officers and employees will also be spending time supervising the affairs of other equipment leasing and finance funds it manages. Therefore, such officers and employees devoted and will devote the amount of time that they think is necessary to conduct our business, which may not be the same amount of time that would be devoted to us if we had separate officers and employees.

Our Manager and its affiliates will receive expense reimbursements and substantial fees from us and those reimbursements and fees are likely to exceed the income portion of distributions made to you during our early years.

Before making any distributions to our members, we will reimburse our Manager and its affiliates for expenses incurred on our behalf, and pay our Manager and its affiliates substantial fees for acquiring, managing, and realizing our investments for us. The expense reimbursements and fees of our Manager and its affiliates were established by our Manager in compliance with the NASAA Guidelines (the North American Securities Administrators Association guidelines for publicly offered, finite-life equipment leasing and finance funds) in effect on the date of our prospectus, are not based on arm’s-length negotiations, but are subject to the limitations set forth in our LLC Agreement. Nevertheless, the amount of these expense reimbursements and fees is likely to exceed the income portion of distributions made to you in our early years.

In general, expense reimbursements and fees are paid without regard to the amount of our cash distributions to our additional members, and regardless of the success or profitability of our operations. Some of those fees and expense reimbursements will be required to be paid as we acquire our portfolio and we may pay other expenses, such as accounting and interest expenses, costs for supplies, etc., even though we may not yet have begun to receive revenues from all of our investments. This lag between the time when we must pay fees and expenses at the time when we receive revenues may result in losses to us during our early years, which our Manager believes is typical for start-up companies such as us.

Furthermore, we are likely to borrow a significant portion of the purchase price of our investments. This use of indebtedness should permit us to make more investments than if borrowings were not utilized. As a consequence, we will pay greater fees to our Manager than if no indebtedness were incurred because management and acquisition fees are based upon the gross payments earned or receivable from, or the purchase price (including any indebtedness incurred) of, our investments.  Also, our Manager will determine the amount of cash reserves that we will maintain for future expenses, contingencies or investments. The reimbursement of expenses, payment of fees or creation of reserves could adversely affect our ability to make distributions to our additional members.
 
 

 
Our Manager may have difficulty managing its growth, which may divert its resources and limit its ability to expand its operations successfully.

The amount of assets that our Manager manages has grown substantially since our Manager was formed in 1985 and our Manager and its affiliates intend to continue to sponsor and manage, as applicable, funds similar to us that may be concurrent with us and they expect to experience further growth in their respective assets under management. Our Manager’s future success will depend on the ability of its and its affiliates’ officers and key employees to implement and improve their operational, financial and management controls, reporting systems and procedures, and manage a growing number of assets and investment funds. They, however, may not implement improvements to their management information and control systems in an efficient or timely manner and they may discover deficiencies in their existing systems and controls. Thus, our Manager’s anticipated growth may place a strain on its administrative and operations infrastructure, which could increase its costs and reduce its efficiency and could negatively impact our operations, business and financial condition.

Operational risks may disrupt our business and result in losses.

We may face operational risk from errors made in the execution, confirmation or settlement of transactions. We may also face operational risk from our transactions not being properly recorded, evaluated or accounted for. We rely heavily on our Manager’s financial, accounting, and other software systems. If any of these systems fail to operate properly or become disabled, we could suffer financial loss and a disruption of our business.  In addition, we are highly dependent on our Manager’s information systems and technology. There can be no assurance that these information systems and technology will be able to accommodate our Manager’s growth or that the cost of maintaining such systems will not increase from its current level. Such a failure to accommodate growth, or an increase in costs related to such information systems, could also negatively affect our liquidity and cash flows, and could negatively affect our profitability.  Furthermore, we depend on the headquarters of our Manager, which are located in New York City, for the operation of our business. A disaster or a disruption in the infrastructure that supports our businesses, including a disruption involving electronic communications or other services used by us or third parties with whom we conduct business, or directly affecting our headquarters, may have an adverse impact on our ability to continue to operate our business without interruption that could have a material adverse effect on us. Although we have disaster recovery programs in place, there can be no assurance that these will be sufficient to mitigate the harm that may result from such a disaster or disruption. In addition, insurance and other safeguards might only partially reimburse us for any losses.  Finally, we rely on third-party service providers for certain aspects of our business, including certain accounting and financial services. Any interruption or deterioration in the performance of these third parties could impair the quality of our operations and could adversely affect our business and result in losses.

Our internal controls over financial reporting may not be effective or our independent registered public accounting firm may not be able to certify as to their effectiveness, which could have a significant and adverse effect on our business.

Our Manager is required to evaluate our internal controls over financial reporting in order to allow management to report on, and if and when required, our independent registered public accounting firm to attest to, our internal controls over financial reporting, as required by Section 404 of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations of the SEC thereunder, which we refer to as “Section 404.” During the course of testing, our Manager may identify deficiencies that it may not be able to remediate in time to meet the deadline imposed by the Sarbanes-Oxley Act for compliance with the requirements of Section 404. In addition, if we fail to achieve and maintain the adequacy of our internal controls, as such standards are modified, supplemented or amended from time to time, we may not be able to ensure that we can conclude on an ongoing basis that we have effective internal controls over financial reporting in accordance with Section 404. We cannot be certain as to the timing of completion of our evaluation, testing and any remediation actions or the impact of the same on our operations. If we are not able to complete our annual evaluations required by Section 404 in a timely manner or with adequate compliance, we may be subject to sanctions or investigation by regulatory authorities, such as the SEC. As a result, we may be required to incur costs in improving our internal control system and the hiring of additional personnel. Any such action could negatively affect our results of operations and the achievement of our investment objectives.
 
 

 
We are subject to certain reporting requirements and are required to file certain periodic reports with the SEC.

We are subject to reporting requirements under the Securities Exchange Act of 1934, as amended, including the filing of quarterly and annual reports. Prior public funds sponsored by our Manager have been and are subject to the same requirements. Some of these funds have been required to amend previously filed reports to, among other things, restate the audited or unaudited financial statements filed in such reports. As a result, the prior funds have been delinquent in filing subsequent quarterly and annual reports when they became due. If we experience delays in the filing of our reports, our members may not have access to timely information concerning us, our operations, and our financial results.

Your ability to institute a cause of action against our Manager and its affiliates is limited by our LLC Agreement.

Our LLC Agreement provides that neither our Manager nor any of its affiliates will have any liability to us for any loss we suffer arising out of any action or inaction of our Manager or an affiliate if our Manager or affiliate determined, in good faith, that the course of conduct was in our best interests and did not constitute negligence or misconduct. As a result of these provisions in our LLC Agreement, your right to institute a cause of action against our Manager may be more limited than it would be without these provisions.

Business Risks

Our business could be hurt by economic downturns.

Our business is affected by a number of economic factors, including the level of economic activity in the markets in which we operate. A decline in economic activity in the United States or internationally could materially affect our financial condition and results of operations. The equipment leasing and financing industry is influenced by factors such as interest rates, inflation, employment rates and other macroeconomic factors over which we have no control. Any decline in economic activity as a result of these factors typically results in a decrease in the number of transactions in which we participate and in our profitability.

Uncertainties associated with the equipment leasing and financing industry may have an adverse effect on our business and may adversely affect our ability to give you any economic return from our Shares or a complete return of your capital.

There are a number of uncertainties associated with the equipment leasing and financing industry that may have an adverse effect on our business and may adversely affect our ability to make cash distributions to you that will, in total, be equal to a return of all of your capital, or provide for any economic return from our Shares. These include:

·  
fluctuations in demand for equipment and fluctuations in interest rates and inflation rates;
·  
fluctuations in the availability and cost of credit for us to borrow to make and/or realize on some of our investments;
·  
the continuing economic life and value of equipment at the time our investments mature;
·  
the technological and economic obsolescence of equipment;
·  
potential defaults by lessees, borrowers or other counterparties;
·  
supervision and regulation by governmental authorities; and
·  
increases in our expenses, including taxes and insurance expenses.
 
 

 
The risks and uncertainties associated with the industries of our lessees, borrowers, and other counterparties may indirectly affect our business, operating results and financial condition.

We are indirectly subject to a number of uncertainties associated with the industries of our lessees, borrowers, and other counterparties. We invest in a pool of equipment by, among other things, acquiring equipment subject to lease, purchasing equipment and leasing equipment to third-party end users, financing equipment for third-party end users, acquiring ownership rights to items of leased equipment at lease expiration, and acquiring interests or options to purchase interests in the residual value of equipment. The lessees, borrowers, and other counterparties to these transactions operate in a variety of industries. As such, we are indirectly subject to the various risks and uncertainties that affect our lessees’, borrowers’, and other counterparties’ businesses and operations. If such risks or uncertainties were to affect our lessees, borrowers, or other counterparties, we may indirectly suffer a loss on our investment, lose future revenues or experience adverse consequences to our business, operating results and financial condition.

Instability in the credit markets could have a material adverse effect on our results of operations, financial condition and ability to meet our investment objectives.

If debt financing is not available on terms and conditions we find acceptable, we may not be able to obtain financing for some of our investments. Recently, domestic and international financial markets have experienced unusual volatility and uncertainty. If this volatility and uncertainty persists, our ability to borrow to finance the acquisition of some of our investments could be significantly impacted. If we are unable to borrow on terms and conditions that we find acceptable, we may have to reduce the number of and possibly limit the type of investments we will make, and the return on some of the investments we do make could be lower. All of these events could have a material adverse effect on our results of operations, financial condition and ability to meet our investment objectives.

Because we borrowed and may in the future borrow money to make our investments, losses as a result of lessee, borrower or other counterparty defaults may be greater than if such borrowings were not incurred.

Although we acquired some of our investments for cash, we borrowed and may in the future borrow a substantial portion of the purchase price of certain of our investments. While we believe the use of leverage will result in our ability to make more investments with less risk than if leverage is not utilized, there can be no assurance that the benefits of greater size and diversification of our portfolio will offset the heightened risk of loss in an individual investment using leverage.  With respect to non-recourse borrowings, if we are unable to pay our debt service obligations because a lessee, borrower or other counterparty defaults, a lender could foreclose on the investment securing the non-recourse indebtedness. This could cause us to lose all or part of our investment or could force us to meet debt service payment obligations so as to protect our investment subject to such indebtedness and prevent it from being subject to repossession.  Additionally, while the majority of our borrowings are non-recourse, we are jointly and severally liable for recourse indebtedness incurred under a revolving line of credit facility with California Bank & Trust (“CB&T”) that is secured by certain of our assets that are not otherwise pledged to other lenders. CB&T has a security interest in such assets and the right to sell those assets to pay off the indebtedness if we default on our payment obligations.  This recourse indebtedness may increase our risk of loss because we must meet the debt service payment obligations regardless of the revenue we receive from the investment that is subject to such secured indebtedness.
 
 

 
Restrictions imposed by the terms of our indebtedness may limit our financial flexibility.

We, together with certain of our affiliates (entities managed by our Manager), ICON Income Fund Eight B L.P. (“Fund Eight B”), ICON Income Fund Nine, LLC (“Fund Nine”), ICON Income Fund Ten, LLC (“Fund Ten”), ICON Leasing Fund Eleven, LLC (“Fund Eleven”) and ICON Equipment and Corporate Infrastructure Fund Fourteen, L.P. (“Fund Fourteen”), are party to the revolving line of credit agreement with CB&T, as amended.  The terms of that agreement could restrict us from paying distributions to our members if such payments would cause us not to be in compliance with our financial covenants in that agreement. For additional information on the terms of our credit agreement, see “Item 7. Manager’s Discussion and Analysis of Financial Condition and Results of Operations – Liquidity and Capital Resources.”

Guarantees made by the guarantors of some of our lessees, borrowers and other counterparties may be voided under certain circumstances and we may be required to return payments received from such guarantors.

Under federal bankruptcy law and comparable provisions of State fraudulent transfer laws, a guarantee could be voided, or claims in respect of a guarantee could be subordinated to all other debts of that guarantor if, among other things, the guarantor, at the time it incurred the indebtedness evidenced by its guarantee:

·  
received less than reasonably equivalent value or fair consideration for the incurrence of such guarantee; and
·  
was insolvent or rendered insolvent by reason of such incurrence; or
·  
was engaged in a business or transaction for which the guarantor’s remaining assets constituted unreasonably small capital; or
·  
intended to incur, or believed that it would incur, debts beyond its ability to pay such debts as they mature.

In addition, any payment by that guarantor pursuant to its guarantee could be voided and required to be returned to the guarantor, or to a fund for the benefit of the creditors of the guarantor.

The measures of insolvency for purposes of these fraudulent transfer laws will vary depending upon the law applied in any proceeding to determine whether a fraudulent transfer has occurred. Generally, however, a guarantor would be considered insolvent if:

·  
the sum of its debts, including contingent liabilities, was greater than the fair saleable value of all of its assets;
·  
if the present fair saleable value of its assets was less than the amount that would be required to pay its probable liability on its existing debts, including contingent liabilities, as they become absolute and mature; or
·  
it could not pay its debts as they become due.

We cannot assure you as to what standard a court would apply in making these determinations or that a court would agree with our conclusions in this regard. We also cannot make any assurances as to the standards that courts in foreign jurisdictions may use or that courts in foreign jurisdictions will take a position similar to that taken in the United States.
 
 
 

If the value of our investments declines more rapidly than we anticipate, our financial performance may be adversely affected.

A significant part of the value of a significant portion of the equipment that we invest in is expected to be the potential value of the equipment once the lease term expires (with respect to leased equipment). Generally, equipment is expected to decline in value over its useful life. In making these types of investments, we assume a residual value for the equipment at the end of the lease or other investment that, at maturity, is expected to be enough to return the cost of our investment in the equipment and provide a rate of return despite the expected decline in the value of the equipment over the term of the investment. However, the actual residual value of the equipment at maturity and whether that value meets our expectations will depend to a significant extent upon the following factors, many of which are beyond our control:

·  
our ability to acquire or enter into agreements that preserve or enhance the relative value of the equipment;
·  
our ability to maximize the value of the equipment at maturity of our investment;
·  
market conditions prevailing at maturity;
·  
the cost of new equipment at the time we are remarketing used equipment;
·  
the extent to which technological or regulatory developments reduce the market for such used equipment;
·  
the strength of the economy; and
·  
the condition of the equipment at maturity.

We cannot assure you that our assumptions with respect to value will be accurate or that the equipment will not lose value more rapidly than we anticipate.

If equipment is not properly maintained, its residual value may be less than expected.

If a lessee or other counterparty fails to maintain equipment in accordance with the terms of our agreements, we may have to make unanticipated expenditures to repair the equipment in order to protect our investment. In addition, some of the equipment we invest in is used equipment. While we plan to inspect most used equipment prior to making an investment, there is no assurance that an inspection of used equipment prior to purchasing it will reveal any or all defects and problems with the equipment that may occur after it is acquired by us.

We typically obtain representations from the sellers and lessees of used equipment that:

·  
the equipment has been maintained in compliance with the terms of applicable agreements;
·  
that neither the seller nor the lessee is in violation of any material terms of such agreements; and
·  
the equipment is in good operating condition and repair and that, with respect to leases, the lessee has no defenses to the payment of rent for the equipment as a result of the condition of such equipment.

We would have rights against the seller of equipment for any losses arising from a breach of representations made to us and against the lessee for a default under the lease. However, we cannot assure you that these rights will make us whole with respect to our entire investment in the equipment or our expected returns on the equipment, including legal costs, costs of repair and lost revenue from the delay in being able to sell or re-lease the equipment due to undetected problems or issues. These costs and lost revenue could negatively affect our liquidity and cash flows, and could negatively affect our profitability if we are unable to recoup such costs from the lessee or other third parties.
 
 

If a lessee, borrower or other counterparty defaults on its obligations to us, we could incur losses.

We enter into transactions with parties that have senior debt rated below investment grade or no credit rating. We do not require such parties to have a minimum credit rating. Lessees, borrowers, and other counterparties with lower or no credit ratings may default on payments to us more frequently than lessees, borrowers or other counterparties with higher credit ratings. For example, if a lessee does not make lease payments to us or to a lender on our behalf or a borrower does not make loan payments to us when due, or violates the terms of its contract in another important way, we may be forced to terminate our agreements with such parties and attempt to recover the equipment. We may do this at a time when we may not be able to arrange for a new lease or to sell our investment right away, if at all. We would then lose the expected revenues and might not be able to recover the entire amount or any of our original investment. The costs of recovering equipment upon a lessee’s or borrower’s default, enforcing the obligations under the contract, and transporting, storing, repairing, and finding a new lessee or purchaser for the equipment may be high and may negatively affect the value of our investment in the equipment. These costs could also negatively affect our liquidity and cash flows, and could negatively affect our profitability.

If a lessee, borrower or other counterparty files for bankruptcy, we may have difficulty enforcing the terms of the contract and may incur losses.

If a lessee, borrower or other counterparty files for protection under the bankruptcy laws, the remaining term of the lease, loan or other financing contract could be shortened or the contract could be rejected by the bankruptcy court, which could result in, among other things, any unpaid pre-bankruptcy lease, loan or other contractual payments being cancelled as part of the bankruptcy proceeding. We may also experience difficulties and delays in recovering equipment from a bankrupt lessee or borrower that is involved in a bankruptcy proceeding or has been declared bankrupt by a bankruptcy court. If a contract is rejected in a bankruptcy, we would bear the cost of retrieving and storing the equipment and then have to remarket such equipment. In addition, the bankruptcy court would treat us as an unsecured creditor for any amounts due under the lease, loan or other contract. These costs and lost revenues could also negatively affect our liquidity and cash flows and could negatively affect our profitability.

We may invest in options to purchase equipment that could become worthless if the option grantor files for bankruptcy.

We may acquire options to purchase equipment, usually for a fixed price at a future date. In the event of a bankruptcy by the party granting the option, we might be unable to enforce the option or recover the option price paid, which could negatively affect our profitability.

Investing in equipment in foreign countries may be riskier than domestic investments and may result in losses.

We made and may in the future make investments in equipment for use by domestic or foreign parties outside of the United States. We may have difficulty enforcing our rights under foreign transaction documents. In addition, we may have difficulty repossessing equipment if a foreign party defaults and enforcement of our rights outside the United States could be more expensive. Moreover, foreign jurisdictions may confiscate our equipment. Use of equipment in a foreign country will be subject to that country’s tax laws, which may impose unanticipated taxes. While we seek to require lessees, borrowers, and other counterparties to reimburse us for all taxes imposed on the use of the equipment and require them to maintain insurance covering the risks of confiscation of the equipment, we cannot assure you that we will be successful in doing so or that insurance reimbursements will be adequate to allow for recovery of and a return on foreign investments.
 
 

 
In addition, we invest in equipment that may travel to or between locations outside of the United States. Regulations in foreign countries may adversely affect our interest in equipment in those countries. Foreign courts may not recognize judgments obtained in U.S. courts and different accounting or financial reporting practices may make it difficult to judge the financial viability of a lessee, borrower or other counterparty, heightening the risk of default and the loss of our investment in such equipment, which could have a material adverse effect on our results of operations and financial condition.

In addition to business uncertainties, our investments may be affected by political, social, and economic uncertainty affecting a country or region. Many financial markets are not as developed or as efficient as those in the U.S. and, as a result, liquidity may be reduced and price volatility may be higher. The legal and regulatory environment may also be different, particularly with respect to bankruptcy and reorganization. Financial accounting standards and practices may also differ and there may be less publicly available information with respect to such companies. While our Manager considers these factors when making investment decisions, no assurance can be given that we will be able to fully avoid these risks or generate sufficient risk-adjusted returns.

We could incur losses as a result of foreign currency fluctuations.

We have the ability to invest in equipment where payments to us are not made in U.S. dollars. In these cases, we may then enter into a contract to protect these payments from fluctuations in the currency exchange rate. These contracts, known as hedge contracts, would allow us to receive a fixed number of U.S. dollars for any fixed, periodic payments due under the transactional documents even if the exchange rate between the U.S. dollar and the currency of the transaction changes over time. If the payments to us were disrupted due to default by the lessee, borrower or other counterparty, we would try to continue to meet our obligations under the hedge contract by acquiring the foreign currency equivalent of the missed payments, which may be available at unfavorable exchange rates. If a transaction is denominated in a major foreign currency such as the pound sterling, which historically has had a stable relationship with the U.S. dollar, we may consider hedging to be unnecessary to protect the value of the payments to us, but our assumptions concerning currency stability may turn out to be incorrect. Our investment returns could be reduced in the event of unfavorable currency fluctuation when payments to us are not made in U.S. dollars.

Furthermore, when we acquire a residual interest in foreign equipment, we may not be able to hedge our foreign currency exposure with respect to the value of such residual interests because the terms and conditions of such hedge contracts might not be in the best interests of our members. Even with transactions requiring payments in U.S. dollars, the equipment may be sold at maturity for an amount that cannot be pre-determined to a buyer paying in a foreign currency. This could positively or negatively affect our income from such a transaction when the proceeds are converted into U.S. dollars.

Sellers of leased equipment could use their knowledge of the lease terms for gain at our expense.

We may acquire equipment subject to lease from leasing companies that have an ongoing relationship with the lessees. A seller could use its knowledge of the terms of the lease, particularly the end of lease options and date the lease ends, to compete with us. In particular, a seller may approach a lessee with an offer to substitute similar equipment at lease end for lower rental amounts. This may adversely affect our opportunity to maximize the residual value of the equipment and potentially negatively affect our profitability.




Investment in joint ventures may subject us to risks relating to our co-investors that could adversely impact the financial results of such joint ventures.

We have the ability to invest in joint ventures with other businesses our Manager manages, as well as with unrelated third parties. Investing in joint ventures involves additional risks not present when acquiring leased equipment that will be wholly owned by us. These risks include the possibility that our co-investors might become bankrupt or otherwise fail to meet financial commitments, thereby obligating us to pay all of the debt associated with the joint venture, as each party to a joint venture may be required to guarantee all of the joint venture’s obligations. Alternatively, the co-investors may have economic or business interests or goals that are inconsistent with our investment objectives and want to manage the joint venture in ways that do not maximize our return. Among other things, actions by a co-investor might subject leases that are owned by the joint venture to liabilities greater than those contemplated by the joint venture agreement. Also, when none of the joint owners control a joint venture, there might be a stalemate on decisions, including when to sell the equipment or the prices or terms of a lease. Finally, while we typically have the right to buy out the other joint owner’s interest in the equipment in the event of the sale, we may not have the resources available to do so. These risks could negatively affect our profitability and could result in legal and other costs, which would negatively affect our liquidity and cash flows.

We may not be able to obtain insurance for certain risks and would have to bear the cost of losses from non-insurable risks.

Equipment may be damaged or lost. Fire, weather, accidents, theft or other events can cause damage or loss of equipment. While our transaction documents generally require lessees and borrowers to have comprehensive insurance and assume the risk of loss, some losses, such as from acts of war, terrorism or earthquakes, may be either uninsurable or not economically feasible to insure. Furthermore, not all possible liability claims or contingencies affecting equipment can be anticipated or insured against, and, if insured, the insurance proceeds may not be sufficient to cover a loss. If such a disaster occurs to the equipment, we could suffer a total loss of any investment in the affected equipment. In investing in some types of equipment, we may have been exposed to environmental tort liability. Although we use our best efforts to minimize the possibility and exposure of such liability including by means of attempting to obtain insurance, we cannot assure you that our assets will be protected against any such claims. These risks could negatively affect our profitability and could result in legal and other costs, which would negatively affect our liquidity and cash flows.

We could suffer losses from failure to maintain our equipment registration and from unexpected regulatory compliance costs.

Many types of transportation assets are subject to registration requirements by U.S. governmental agencies, as well as foreign governments if such equipment is to be used outside of the United States. Failing to register the equipment, or losing such registration, could result in substantial penalties, forced liquidation of the equipment and/or the inability to operate and lease the equipment. Governmental agencies may also require changes or improvements to equipment and we may have to spend our own funds to comply if the lessee, borrower or other counterparty is not required to do so under the transaction documents. These changes could force the equipment to be removed from service for a period of time. The terms of the transaction documents may provide for payment reductions if the equipment must remain out of service for an extended period of time or is removed from service. We may then have reduced income from our investment for this equipment. If we do not have the funds to make a required change, we might be required to sell the affected equipment. If so, we could suffer a loss on our investment, lose future revenues and experience adverse tax consequences.
 
 

If any of our investments become subject to usury laws, we could have reduced revenues or possibly a loss on such investments.

In addition to credit risks, we may be subject to other risks in equipment financing transactions in which we are deemed to be a lender. For example, equipment leases have sometimes been held by U.S. courts to be loan transactions subject to State usury laws, which limit the interest rate that can be charged. Uncertainties in the application of some laws may result in inadvertent violations that could result in reduced investment returns or, possibly, loss on our investment in the affected equipment. Although part of our business strategy is to enter into or acquire leases that we believe are structured so that they avoid being deemed loans, and would therefore not be subject to usury laws, we cannot assure you that we will be successful in doing so. If an equipment lease is held to be a loan with a usurious rate of interest, the amount of the lease payment could be reduced and adversely affect our revenue.

State laws determine what rates of interest are deemed usurious, when the applicable rate of interest is determined, and how it is calculated. In addition, some U.S. courts have also held that certain lease features, such as equity interests, constitute additional interest. Although we generally seek assurances and/or opinions to the effect that our transactions do not violate applicable usury laws, a finding that our transactions violate usury laws could result in the interest obligation to us being declared void and we could be liable for damages and penalties under applicable law. We cannot assure you as to what standard a court would apply in making these determinations or that a court would agree with our conclusions in this regard. We also cannot make any assurances as to the standards that courts in foreign jurisdictions may use or that courts in foreign jurisdictions will take a position similar to that taken in the United States.

We compete with a variety of financing sources for our investments, which may affect our ability to achieve our investment objectives.

The commercial leasing and financing industry is highly competitive and is characterized by competitive factors that vary based upon product and geographic region. Our competitors are varied and include other equipment leasing and finance funds, hedge funds, captive and independent finance companies, commercial and industrial banks, manufacturers and vendors. Competition from both traditional competitors and new market entrants has intensified in recent years due to growing marketplace liquidity and increasing recognition of the attractiveness of the commercial leasing and finance industry.  We compete primarily on the basis of pricing, terms and structure.  To the extent that our competitors compete aggressively on any combination of those factors, we could fail to achieve our investment objectives.

Some of our competitors are substantially larger and have considerably greater financial, technical and marketing resources than either we or our Manager and its affiliates have.  For example, some competitors may have a lower cost of funds and access to funding sources that are not available to us.  A lower cost of funds could enable a competitor to offer financing at rates that are less than ours, potentially forcing us to lower our rates or lose potential lessees, borrowers or other counterparties.  In addition, our competitors may have been and/or may be in a position to offer equipment to prospective customers on other terms that are more favorable than those that we can offer or that we will be able to offer when liquidating our portfolio, which may affect our ability to make investments and may affect our ability to liquidate our portfolio, in each case, in a manner that would enable us to achieve our investment objectives.

 
 
 
General Tax Risks

If the IRS classifies us as a corporation rather than a partnership, your distributions would be reduced under current tax law.

We did not and will not apply for an IRS ruling that we will be classified as a partnership for federal income tax purposes. Although counsel rendered an opinion to us at the time of our offering that we will be taxed as a partnership and not as a corporation, that opinion is not binding on the IRS and the IRS has not ruled on any federal income tax issue relating to us. If the IRS successfully contends that we should be treated as a corporation for federal income tax purposes rather than as a partnership, then:

·  
our realized losses would not be passed through to you;
·  
our income would be taxed at tax rates applicable to corporations, thereby reducing our cash available to distribute to you; and
·  
your distributions would be taxed as dividend income to the extent of current and accumulated earnings and profits.

In addition, we could be taxed as a corporation if we are treated as a publicly traded partnership by the IRS. To minimize this possibility, our LLC Agreement places significant restrictions on your ability to transfer our Shares.

We could lose cost recovery or depreciation deductions if the IRS treats our leases as sales or financings.

We expect that, for federal income tax purposes, we will be treated as the owner and lessor of the equipment that we lease. However, the IRS may challenge the leases and instead assert that they are sales or financings. If the IRS determines that we are not the owner of our leased equipment, we would not be entitled to cost recovery, depreciation or amortization deductions, and our leasing income might be deemed to be portfolio income instead of passive activity income. The denial of such cost recovery or amortization deductions could cause your tax liabilities to increase.

Our investments in secured loans will not give rise to depreciation or cost recovery deductions and may not be offset against our passive activity losses.

We expect that, for federal income tax purposes, we will not be treated as the owner and lessor of the equipment that we invest in through our lending activities. Based on our expected level of activity with respect to these types of financings, we expect that the IRS will treat us as being in the trade or business of lending. Generally, trade or business income can be considered passive activity income. However, because we expect that the source of funds we lend to others will be the capital contributed by our members and the funds generated from our operations (rather than money we borrow from others), you may not be able to offset your share of our passive activity losses from our leasing activities with your share of our interest income from our lending activities. Instead, your share of our interest income from our lending activities would be taxed as portfolio income.

You may incur tax liability in excess of the cash distributions you receive in a particular year.

In any particular year, your tax liability from owning our Shares may exceed the cash distributions you receive from this investment. While we expect that your net taxable income from owning our Shares for most years will be less than your cash distributions in those years, to the extent any of our debt is repaid with income or proceeds from equipment sales, taxable income could exceed the amount of cash distributions you receive in those years. Additionally, a sale of our investments may result in taxes in any year that are greater than the amount of cash from the sale, resulting in a tax liability in excess of cash distributions. Further, due to the operation of the various loss disallowance rules, in a given tax year you may have taxable income when, on a net basis, we have a loss, or you may recognize a greater amount of taxable income than our net income because, due to a loss disallowance, income from some of our activities cannot be offset by losses from some of our other activities.
 
 

 
You may be subject to greater income tax obligations than originally anticipated due to special depreciation rules.

We may acquire equipment subject to lease that the Code requires us to depreciate over a longer period than the standard depreciation period. Similarly, some of the equipment that we purchase may not be eligible for accelerated depreciation under the Modified Accelerated Costs Recovery System, which was established by the Tax Reform Act of 1986 to set forth the guidelines for accelerated depreciation under the Code. Further, if we acquire equipment that the Code deems to be tax-exempt use property and the leases do not satisfy certain requirements, losses attributable to such equipment are suspended and may be deducted only against income we receive from such equipment or when we dispose of such equipment. Depending on the equipment that we acquire and its eligibility for accelerated depreciation under the Code, we may have less depreciation deductions to offset gross lease revenue, thereby increasing our taxable income.

There are limitations on your ability to deduct our losses.

Your ability to deduct your share of our losses is limited to the amounts that you have at risk from owning our Shares. This is generally the amount of your investment, plus any profit allocations and minus any loss allocation and distributions. This determination is further limited by a tax rule that applies the at-risk rules on an activity by activity basis, further limiting losses from a specific activity to the amount at risk in that activity. Based on the tax rules, we expect that we will have multiple activities for purposes of the at-risk rules. Specifically, our lending activities must be analyzed separately from our leasing activities, and our leasing activities must be further divided into separate year-by-year groups according to the tax year the equipment is placed in service. As such, you cannot aggregate income and loss from our separate activities for purposes of determining your ability to deduct your share of our losses under the at-risk rules.

Additionally, your ability to deduct losses attributable to passive activities is restricted. Some of our operations will constitute passive activities and you can only use our losses from such activities to offset passive activity income in calculating tax liability. Furthermore, passive activity losses may not be used to offset portfolio income. As stated above, we expect our lending activities to generate portfolio income from the interest we receive, even though we expect the income to be attributable to a lending trade or business. However, we expect any gains or losses we recognize from those lending activities to be associated with a trade or business and generally allowable as either passive activity income or loss, as applicable.

The IRS may allocate more taxable income to you than our LLC Agreement provides.

The IRS might successfully challenge our allocations of taxable income or losses. If so, the IRS would require reallocation of our taxable income and loss, resulting in an allocation of more taxable income or less loss to you than our LLC Agreement allocates.

If you are a tax-exempt organization, you will have unrelated business taxable income from this investment.

Tax-exempt organizations are subject to income tax on unrelated business taxable income (“UBTI”). Such organizations are required to file federal income tax returns if they have UBTI from all sources in excess of $1,000 per year. Our leasing income will constitute UBTI. Furthermore, tax-exempt organizations in the form of charitable remainder trusts will be subject to an excise tax equal to 100% of their UBTI.
 
 

 
To the extent that we borrow money in order to finance our lending activities, a portion of our income from such activities will be treated as attributable to debt-financed property and, to the extent so attributable, will constitute UBTI. We presently do not expect to finance our lending activities with borrowed funds. Nevertheless, the debt-financed UBTI rules are broad and there is much uncertainty in determining when, and the extent to which, property should be considered debt-financed. Thus, the IRS might assert that a portion of the assets we acquire as part of our lending activities are debt-financed property generating UBTI, especially with regard to any indebtedness we incur to fund working capital at a time when we hold loans we have acquired or made to others. If the IRS were to successfully assert that debt we believed should have been attributed to our leasing activities should instead be attributed to our lending activities, the amount of our income that constitutes UBTI would be increased.

This investment may cause you to pay additional taxes.

You may be required to pay alternative minimum tax in connection with owning our Shares, since you will be allocated a proportionate share of our tax preference items. Our Manager’s operation of our business affairs may lead to other adjustments that could also increase your alternative minimum tax. In addition, the IRS could take the position that all or a portion of our lending activities are not a trade or business, but rather an investment activity. If all or a portion of our lending activities are not considered to be a trade or business, then a portion of our management fees could be considered investment expenses rather than trade or business expenses. To the extent that a portion of our fees are considered investment expenses, they are not deductible for alternative minimum tax purposes and are subject to a limitation for regular tax purposes. Alternative minimum tax is treated in the same manner as the regular income tax for purposes of making estimated tax payments.

You may incur State tax and foreign tax liabilities and have an obligation to file State or foreign tax returns.

You may be required to file tax returns and pay foreign, State or local taxes, such as income, franchise or personal property taxes, as a result of an investment in our Shares, depending upon the laws of the jurisdictions in which the equipment that we own is located.

Any adjustment to our tax return as a result of an audit by the IRS may result in adjustment to your tax return.

If we adjust our tax return as a result of an IRS audit, such adjustment may result in an examination of other items in your returns unrelated to us, or an examination of your tax returns for prior years. You could incur substantial legal and accounting costs in contesting any challenge by the IRS, regardless of the outcome. Further, because you will be treated for federal income tax purposes as a partner in a partnership by investing in our Shares, an audit of our tax return could potentially lead to an audit of your individual tax return. Finally, under certain circumstances, the IRS may automatically adjust your personal return without the opportunity for a hearing if it adjusts our tax return.

Some of the distributions on our Shares will be a return of capital, in whole or in part, which will complicate your tax reporting and could cause unexpected tax consequences at liquidation.

As we depreciate our investments in leased equipment over the term of our existence and/or borrowers repay the loans we make to them, it is very likely that a portion of each distribution to you will be considered a return of capital, rather than income. Therefore, the dollar amount of each distribution should not be considered as necessarily being all income to you. As your capital in our Shares is reduced for tax purposes over the life of your investment, you will not receive a lump sum distribution upon liquidation that equals the purchase price you paid for our Shares, such as you might expect if you had purchased a bond. Also, payments made upon our liquidation will be taxable to the extent that such payments are not a return of capital.
 
 

 
As you receive distributions throughout the life of your investment, you will not know at the time of the distribution what portion of the distribution represents a return of capital and what portion represents income. The Schedule K-1 statement you received and continue to receive from us each year will specify the amounts of capital and income you received throughout the prior year.

None.


We neither own nor lease office space or any other real property in our business at the present time.


In the ordinary course of conducting our business, we may be subject to certain claims, suits, and complaints filed against us.  In our Manager’s opinion, the outcome of such matters, if any, will not have a material impact on our consolidated financial position or results of operations.  We are not aware of any material legal proceedings that are currently pending against us or against any of our assets.






 

Our Shares are not publicly traded and there is no established public trading market for our Shares. It is unlikely that any such market will develop.

 
Number of Members
Title of Class
as of March 19, 2010
Manager (as a member)
1
Additional members
8,356

We, at our Manager’s discretion, pay monthly distributions to each of our members beginning the first month after each member is admitted through the end of our operating period, which we currently anticipate will be in May 2014. We paid distributions to additional members totaling $31,554,863, $16,072,151 and $2,040,455 for the years ended December 31, 2009, 2008 and 2007, respectively.  Additionally, we paid our Manager distributions of $318,725, $162,440 and $20,561 for the years ended December 31, 2009, 2008 and 2007, respectively. The terms of our loan agreement with CB&T, as amended, could restrict us from paying cash distributions to our members if such payment would cause us to not be in compliance with our financial covenants. See “Item 7. Manager’s Discussion and Analysis of Financial Condition and Results of Operations – Liquidity and Capital Resources.”

In order for Financial Industry Regulatory Authority, Inc. (“FINRA”) members and their associated persons to have participated in the offering and sale of Shares pursuant to the offering or to participate in any future offering of our Shares, we are required pursuant to FINRA Rule 2310(b)(5) to disclose in each annual report distributed to our members a per Share estimated value of our Shares, the method by which we developed the estimated value, and the date used to develop the estimated value. In addition, our Manager prepares statements of our estimated Share values to assist fiduciaries of retirement plans subject to the annual reporting requirements of ERISA in the preparation of their reports relating to an investment in our Shares.  For these purposes, the estimated value of our Shares is deemed to be $768.11 per Share as of December 31, 2009.  This estimated value is provided to assist plan fiduciaries in fulfilling their annual valuation and reporting responsibilities and should not be used for any other purpose.  Because this is only an estimate, we may subsequently revise this valuation.

During the offering of our Shares, the value of our Shares was estimated to be the offering price of $1,000 per Share (without regard to purchase price discounts for certain categories of purchasers), as adjusted for any special distribution of net sales proceeds.

Following the termination of the offering of our Shares, the estimated value of our Shares is based on the estimated amount that a holder of a Share would receive if all of our assets were sold in an orderly liquidation as of the close of our fiscal year and all proceeds from such sales, without reduction for transaction costs and expenses, together with any cash held by us, were distributed to the members upon liquidation.  To estimate the amount that our members would receive upon such liquidation, we calculated the sum of:  (i) the unpaid finance lease and note receivable payments on our existing finance leases and notes receivable, discounted at the implicit yield for each such transaction, (ii) the fair market value of our operating leases, equipment held for sale or lease, and other assets, as determined by the most recent third-party appraisals we have obtained for certain assets or our Manager’s  estimated values of certain other assets, as applicable, and (iii) our cash on hand.  From this amount, we then subtracted our total debt outstanding and then divided that sum by the total number of Shares outstanding.
 
 
 
 
The foregoing valuation is an estimate only.  The appraisals that we obtained and the methodology utilized by our management in estimating our per Share value were subject to various limitations and were based on a number of assumptions and estimates that may or may not be accurate or complete. No liquidity discounts or discounts relating to the fact that we are currently externally managed were applied to our estimated per Share valuation, and no attempt was made to value us as an enterprise.

As noted above, the foregoing valuation was performed solely for the ERISA and FINRA purposes described above and was based solely on our Manager’s perception of market conditions and the types and amounts of our assets as of the reference date for such valuation and should not be viewed as an accurate reflection of the value of our Shares or our assets. Except for independent third-party appraisals of certain assets, no independent valuation was sought. In addition, as stated above, as there is no significant public trading market for our Shares at this time and none is expected to develop, there can be no assurance that members could receive $768.11 per Share if such a market did exist and they sold their Shares or that they will be able to receive such amount for their Shares in the future. Furthermore, there can be no assurance:

·  
as to the amount members may actually receive if and when we seek to liquidate our assets or the amount of lease and note receivable payments and asset disposition proceeds we will actually receive over our remaining term; the total amount of distributions our members may receive may be less than $1,000 per Share primarily due to the fact that the funds initially available for investment were reduced from the gross offering proceeds in order to pay selling commissions, underwriting fees, organizational and offering expenses, and acquisition or formation fees;
·  
that the foregoing valuation, or the method used to establish value, will satisfy the technical requirements imposed on plan fiduciaries under ERISA; or
·  
that the foregoing valuation, or the method used to establish value, will not be subject to challenge by the IRS if used for any tax (income, estate, gift or otherwise) valuation purposes as an indicator of the current value of the Shares.

The repurchase price we offer in our repurchase plan utilizes a different methodology than that which we use to determine the current value of our Shares for the ERISA and FINRA purposes described above and, therefore, the $768.11 per Share does not reflect the amount that a member would currently receive under our repurchase plan.  In addition, there can be no assurance that you will be able to redeem your Shares under our repurchase plan.




The selected financial data should be read in conjunction with the consolidated financial statements and related notes included in “Item 8. Consolidated Financial Statements and Supplementary Data” contained elsewhere in this Annual Report on Form 10-K.

   
Years Ended December 31,
       
   
2009
   
2008
   
2007 (d)
       
 Total revenue (a)
  $ 78,491,218     $ 29,346,502     $ 4,830,315        
 Net income attributable to Fund Twelve (b)
  $ 13,858,916     $ 5,942,580     $ 116,852        
 Net income attributable to Fund Twelve allocable to the additional members
  $ 13,720,327     $ 5,883,154     $ 115,683        
 Net income attributable to Fund Twelve allocable to the Manager
  $ 138,589     $ 59,426     $ 1,169        
                               
 Weighted average number of additional shares of
                             
 
 limited liability company interests outstanding
    333,979       181,777       47,186        
 Net income attributable to Fund Twelve per weighted average
                             
 
 additional share of limited liability company interests
  $ 41.08     $ 32.36     $ 2.45        
 Distributions to additional members
  $ 31,554,863     $ 16,072,151     $ 2,040,455        
 Distributions per weighted average additional share of
                             
 
 limited liability company interests
  $ 94.48     $ 88.42     $ 43.24        
 Distributions to the Manager
  $ 318,725     $ 162,440     $ 20,561        
                               
   
December 31,
 
     2009      2008      2007      2006  
 Total assets (a)
  $ 620,978,386     $ 438,585,542     $ 114,242,189     $ 2,000  
 Non-recourse long-term debt and other liabilities (a)
  $ 264,349,884     $ 162,575,068     $ 22,480,270     $ -  
 Members' equity (c)
  $ 273,079,715     $ 223,487,730     $ 79,289,609     $ 2,000  
                                   
 (a)
Increases in total revenue, total assets and non-recourse long-term debt and other liabilities were primarily due to our investments in equipment leases and other financing transactions during 2009 and 2008. Our non-recourse long-term debt and other liabilities increased because of debt agreements entered into in connection with our acquisitions. We are currently in our operating period, during which we will continue to reinvest the cash generated from our initial investments to the extent that cash is not used for our expenses, reserves and distributions to members.
 
   
 (b)
In 2009, net income attributable to Fund Twelve increased $7,916,336 from 2008. In 2008, net income attributable to Fund Twelve increased $5,825,728 from 2007. Both increases were a result of the increase in rental and finance income resulting from our acquisitions of marine vessels, telecommunications equipment, coal-mining equipment and manufacturing equipment, which was primarily offset by the recognition of depreciation and amortization expense associated with the assets acquired.
 
   
 (c)
Members' equity has increased each year since the Commencement of Operations on May 25, 2007, primarily due to our equity raise, along with the increases in our net income.
 
   
 (d)
The Commencement of Operations was on May 25, 2007. As a result, no operating activities are presented for the year ending December 31, 2006.
 



 

Our Manager’s Discussion and Analysis of Financial Condition and Results of Operations relates to our consolidated financial statements and should be read in conjunction with the financial statements and notes thereto appearing elsewhere in this Annual Report on Form 10-K.  Statements made in this section may be considered forward-looking.  These statements are not guarantees of future performance and are based on current expectations and assumptions that are subject to risks and uncertainties.  Actual results could differ materially because of these risks and assumptions, including, among other things, factors discussed in “Part I. Forward-Looking Statements” and “Item 1A. Risk Factors” located elsewhere in this Annual Report on Form 10-K.

Overview

Our offering period ended on April 30, 2009 and our operating period commenced on May 1, 2009. We operate as an equipment leasing and finance program in which the capital our members invested was pooled together to make investments, pay fees and establish a small reserve. With the proceeds from the sale of our Shares, we invested and continue to invest in equipment subject to leases, other equipment financing, and residual ownership rights in items of leased equipment and establish a cash reserve. After the net offering proceeds were invested, additional investments will be made with the cash generated from our initial investments to the extent that cash is not used for expenses, reserves and distributions to members. The investment in additional equipment in this manner is called “reinvestment.” We anticipate investing in equipment from time to time for five years. This time frame is called the “operating period” and may be extended, at the sole discretion of our Manager, for up to an additional three years.  After the operating period, we will then sell our assets in the ordinary course of business during a time frame called the “liquidation period.”
Our Manager manages and controls our business affairs, including, but not limited to, our equipment leases and other financing transactions, under the terms of our LLC Agreement. Our initial closing was on May 25, 2007, when the minimum offering of $1,200,000 was achieved. From the Commencement of Operations through April 30, 2009, the end of the offering period, we raised total equity of $347,686,947.

Current Business Environment and Outlook

Recent trends indicate that domestic and global equipment financing volume is correlated to overall business investments in equipment, which are typically impacted by general economic conditions. As the economy slows or builds momentum, the demand for productive equipment generally slows or builds and equipment financing volume generally decreases or increases, depending on a number of factors.  These factors include the availability of liquidity to provide equipment financing and/or provide it on terms satisfactory to borrowers, lessees, and other counterparties, as well as the desire to upgrade equipment and/or expand operations during times of growth, but also in times of recession in order to, among other things, seize the opportunity to obtain competitive advantage over distressed competitors and/or increase business as the economy recovers.

Industry Trends Prior to the Recent “Credit Crisis”

The U.S. economy experienced a downturn from 2001 through 2003, resulting in a decrease in equipment financing volume during that period. From 2004 through most of 2007, however, the economy in the United States and the global economy in general experienced significant growth, including growth in business investment in equipment and equipment financing volume.  According to information provided by the Equipment Leasing and Finance Foundation, a non-profit foundation dedicated to providing research regarding the equipment leasing and finance industry (“ELFF”), based on information from the United States Department of Commerce Bureau of Economic Analysis and Global Insight, Inc., a global forecasting company, total domestic business investment in equipment and software increased annually from approximately $922 billion in 2002 to approximately $1,205 billion in 2006 and 2007.  Similarly, during the same period, total domestic equipment financing volume increased from approximately $515 billion in 2002 to approximately $684 billion in 2007.
 
 

 
According to the World Leasing Yearbook 2010, which was published by Euromoney Institutional Investor PLC, global equipment leasing volume increased annually from approximately $462 billion in 2002 to approximately $760 billion in 2007. The most significant source of that increase was due to increased volume in Europe, Asia, and South America. For example, during the same period, total equipment leasing volume in Europe increased from approximately $162 billion in 2002 to approximately $367 billion in 2007, total equipment leasing volume in Asia increased from approximately $71 billion in 2002 to approximately $119 billion in 2007, and total equipment leasing volume in South America increased from approximately $3 billion in 2002 to approximately $41 billion in 2007. It is believed that global business investment in equipment, and global equipment financing volume, including equipment loans and other types of equipment financing, increased as well during the same period.

Current Industry Trends

In general, the U.S. and global credit markets have deteriorated significantly over the past two years. The U.S. economy entered into a recession in December 2007 and global credit markets continue to experience dislocation and tightening.  Many financial institutions and other financing providers have failed or significantly reduced financing operations, creating both uncertainty and opportunity in the finance industry.      

Commercial and Industrial Loan Trends. According to information provided by the U.S. Federal Deposit Insurance Corporation (“FDIC”), the change in the volume of outstanding commercial and industrial loans issued by FDIC-insured institutions started to decline dramatically beginning in the fourth quarter of 2007.  Thereafter, the change in volume turned negative for the first time since 2002 in the fourth quarter of 2008, with reductions of approximately $61 billion between the last quarter of 2008 and the first quarter of 2009, approximately $68 billion between the first and second quarters of 2009, and approximately $89 billion between the second and third quarters of 2009. 

While some of the reduction is due to voluntary and involuntary deleveraging by corporate borrowers, some of the other main factors cited for the decline in outstanding commercial lending and financing volume include the following: 

·  
lack of liquidity to provide new financing and/or refinancing;
·  
heightened credit standards and lending criteria (including ever-increasing spreads, fees, and other costs, as well as lower advance rates and shorter tenors, among other factors) that have hampered some demand for and issuance of new financing and/or refinancing;
·  
net charge offs of and write-downs on outstanding financings; and
·  
many lenders being sidetracked from providing new lending by industry consolidation, management of existing portfolios and relationships, and amendments (principally covenant relief and “amend and extend”). 
 
In addition, the volume of issuance of high yield bonds and, to a lesser extent, investment grade bonds has risen significantly over the past few quarters, a significant portion of the proceeds of which have been used to pay down and/or refinance existing commercial and industrial loans.  As a result of all of these factors affecting the commercial and industrial finance segment of the finance industry, financial institutions and other financing providers with liquidity to provide financing can do so selectively, at higher spreads and other more favorable terms than have been available in many years.  As noted below, this trend in the wider financing market is also prevalent in the specific market for equipment financing.
 
 

 
Equipment Financing Trends.  According to information provided by the Equipment Leasing and Finance Association, an equipment finance trade association and affiliate of ELFF (“ELFA”), total domestic business investment in equipment and software decreased to $1,187 billion in 2008.  Similarly, during the same period, total domestic equipment financing volume decreased to $671 billion in 2008. Global business investment in equipment, and global equipment financing volume, decreased as well during the same period.  According to the World Leasing Yearbook 2010, global equipment leasing volume decreased to approximately $644 billion in 2008. For 2009, domestic business investment in equipment and software is forecasted to drop to an estimated $1,011 billion with a corresponding decrease in equipment financing volume to an estimated $518 billion.  Nevertheless, ELFA projects that domestic investment in equipment and software and equipment financing volume will begin to recover in 2010, with domestic business investment in equipment and software projected to increase to an estimated $1,108 billion in 2010 and $1,255 billion in 2011 and corresponding increases in equipment financing volume to an estimated $583 billion in 2010 and $668 billion in 2011. 

Prior to the recent credit crisis, a substantial portion of equipment financing was provided by the leasing and lending divisions of commercial and industrial banks, large independent leasing and finance companies, and captive and vendor leasing and finance companies. These institutions (i) generally provided financing to companies seeking to lease small ticket and micro ticket equipment, (ii) used credit scoring methodologies to underwrite a lessee’s creditworthiness, and (iii) relied heavily on the issuance of commercial paper and/or lines of credit from other financial institutions to finance new business. Many of these financial institutions and other financing providers have failed or significantly reduced their financing operations.  By contrast, we (i) focus on financing middle- to large-ticket, business-essential equipment and other capital assets, (ii) generally underwrite and structure such financing in a manner similar to providers of senior indebtedness (i.e., our underwriting includes both creditworthiness and asset due diligence and considerations and our structuring often includes guarantees, equity pledges, warrants, liens on related assets, etc.), and (iii) are not significantly reliant on receiving outside financing to meet our investment objectives. In short, in light of the tightening of the credit markets, our Manager in its role as the sponsor and manager of other equipment financing funds has, since the onset of the “credit crisis,” reviewed and expects to continue to review more potential financing opportunities than it has in its history.
 
Lease and Other Significant Transactions
 
We engaged in the following significant transactions during the years ended December 31, 2009, 2008 and 2007:

Telecommunications Equipment

During 2007, we, through our wholly-owned subsidiary, ICON Global Crossing IV, purchased telecommunications equipment for approximately $21,294,000 that is subject to a lease with Global Crossing. The lease expires on November 30, 2011. We incurred professional fees of approximately $149,000 and paid acquisition fees to our Manager of approximately $639,000 relating to this transaction. On March 11, 2008, ICON Global Crossing IV purchased additional telecommunications equipment for approximately $5,939,000 that is also subject to a lease with Global Crossing. The lease expires on March 31, 2011. We paid an acquisition fee to our Manager of approximately $178,000 relating to this transaction. During March 2009, ICON Global Crossing IV purchased additional telecommunications equipment for approximately $3,859,000 that is subject to a lease with Global Crossing. The lease expires on March 31, 2012.  We paid acquisition fees to our Manager of approximately $116,000 relating to this transaction.
 
 

 
 Marine Vessels and Equipment

On June 26, 2007, we and Fund Ten formed ICON Mayon, with ownership interests of 51% and 49%, respectively. On July 24, 2007, ICON Mayon purchased a 98,507 deadweight ton (“DWT”) Aframax product tanker, the Mayon Spirit, from an affiliate of Teekay. The purchase price for the Mayon Spirit was approximately $40,250,000, with approximately $15,312,000 funded in the form of a capital contribution to ICON Mayon and approximately $24,938,000 of non-recourse debt borrowed from Fortis Capital Corp. Simultaneously with the closing of the purchase of the Mayon Spirit, the Mayon Spirit was bareboat chartered back to Teekay for a term of 48 months.  The charter commenced on July 24, 2007. The total capital contributions made to ICON Mayon were approximately $16,020,000, of which our share was approximately $8,472,000. We paid approximately $845,000 in transaction-related costs, which included approximately $616,000 of acquisition fees paid to our Manager.

On April 24, 2008, we, through our wholly-owned subsidiaries, ICON Arabian and ICON Aegean, acquired two 1,500 TEU containership vessels from Vroon, the Aegean Express and the Arabian Express (collectively, the “Vroon Vessels”), for an aggregate purchase price of $51,000,000, of which $38,700,000 of non-recourse debt was borrowed from Fortis Bank NV/SA (“Fortis”). Simultaneously with the purchase, the Vroon Vessels were bareboat chartered back to subsidiaries of Vroon for a period of 72 months. We paid approximately $2,082,000 in transaction-related costs, including $1,530,000 in acquisition fees paid to our Manager.

On November 18, 2008, ICON Eagle Auriga Pte. Ltd. (“ICON Eagle Auriga”), a wholly-owned subsidiary of ICON Eagle Holdings, purchased a 102,352 DWT Aframax product tanker, the Eagle Auriga, from Aframax Tanker I AS for $42,000,000, of which $28,000,000 of non-recourse debt was borrowed from Fortis and DVB Bank SE (“DVB”). On November 21, 2008, ICON Eagle Centaurus Pte. Ltd. (“ICON Eagle Centaurus”), also a wholly-owned subsidiary of ICON Eagle Holdings, purchased a 95,644 DWT Aframax product tanker, the Eagle Centaurus, for $40,500,000, of which $27,000,000 of non-recourse debt was borrowed from Fortis and DVB. The Eagle Auriga and the Eagle Centaurus are subject to 84-month bareboat charters with AET that expire on November 14, 2013 and November 13, 2013, respectively. We paid an acquisition fee to our Manager of $2,475,000 relating to this transaction.

On December 3, 2008, ICON Eagle Carina, a Singapore corporation wholly-owned by ICON Carina Holdings, a Marshall Islands limited liability company owned 64.3% by us and 35.7% by Fund Ten, executed a Memorandum of Agreement to purchase a 95,639 DWT Aframax product tanker, the Eagle Carina, from Aframax Tanker II AS. On December 18, 2008, the Eagle Carina was purchased for $39,010,000, of which $27,000,000 was financed as non-recourse debt borrowed from Fortis and DVB.  The Eagle Carina is subject to an 84-month bareboat charter with AET that expires on November 14, 2013. ICON Carina Holdings paid an acquisition fee to our Manager of approximately $1,170,000 relating to this transaction, of which our share was approximately $752,000.

On December 3, 2008, ICON Eagle Corona, a Singapore corporation wholly-owned by ICON Corona Holdings, a Marshall Islands limited liability company owned 64.3% by us and 35.7% by Fund Ten, executed a Memorandum of Agreement to purchase a 95,634 DWT Aframax product tanker, the Eagle Corona, from Aframax Tanker II AS.  On December 31, 2008, the Eagle Corona was purchased for $41,270,000, of which $28,000,000 was financed as non-recourse debt borrowed from Fortis and DVB.  The Eagle Corona is subject to an 84-month bareboat charter with AET that expires on November 14, 2013. ICON Corona Holdings paid an acquisition fee to our Manager of approximately $1,238,000 relating to this transaction, of which our share was approximately $796,000.
 
 

 
On March 24, 2009, Victorious, a Marshall Islands limited liability company that is controlled by us through our wholly-owned subsidiary, ICON Victorious, purchased the Barge from Swiber for $42,500,000.  Simultaneously with the purchase, the Barge was chartered back to the Charterer for 96 months.  The purchase price of the Barge was funded by (i) a $19,125,000 equity investment from ICON Victorious, (ii) an $18,375,000 contribution-in-kind by Swiber and (iii) a subordinated, non-recourse and unsecured $5,000,000 payable.  The payable bears interest at 3.5% per year, accrues interest quarterly, is only required to be repaid after we achieve our minimum targeted return and is recorded within other non-current liabilities. At the end of the charter, the Charterer has the option to purchase the Barge for $21,000,000 plus 50% of the difference between the then fair market value less $21,000,000. ICON Victorious is the sole manager of Victorious and holds a senior, controlling equity interest and all management rights with respect to Victorious. Swiber holds a subordinate, noncontrolling equity interest in Victorious and the obligations of the Swiber entities that are parties to the transaction are guaranteed by Swiber’s parent company, Swiber Holdings Limited (“Swiber Holdings”). We paid an acquisition fee to our Manager of $1,275,000 in connection with this transaction.

On June 25, 2009, we, through our wholly-owned subsidiaries, purchased the Diving Equipment from Swiber for $10,000,000. Simultaneously with the purchase of the Diving Equipment, we entered into a 60-month lease with Swiber Offshore Construction Pte. Ltd. (the “Lessee”), which commenced on July 1, 2009. The purchase price of the Diving Equipment was comprised of $8,000,000 in cash and a subordinated, interest-free $2,000,000 payable to Swiber, which is due upon sale of the Diving Equipment at the conclusion of the lease term. The $2,000,000 payable is recorded on a discounted basis within other non-current liabilities and is being accreted to its carrying value as interest expense over its term. If an event of loss or an event of default occurs, our obligation to repay the payable is terminated. We paid an acquisition fee to our Manager of $300,000 relating to this transaction.

At the conclusion of the lease, the Lessee has the option to (x) purchase the Diving Equipment for $4,250,000 (the “Purchase Option”) and pay an amount equal to 50% of the difference between the fair market value of the Diving Equipment less $4,250,000 or (y) return the Diving Equipment. In the event the Lessee does not exercise the Purchase Option and the Diving Equipment is not sold to a third party, but rather the lease is renewed or is re-leased to a third party, all lease payments received by us will be paid as follows: (i) first, to us until we receive in full our purchase price of $10,000,000 less the $2,000,000 payable and achieve a return thereon at an agreed-upon rate and (ii) then, to Swiber to repay in full the $2,000,000 payable without interest thereon. In addition, Victorious, ICON Victorious and Swiber granted our subsidiaries a first priority mortgage in the Barge as security for the Lessee’s obligations under the lease. The obligations of the Lessee, Swiber, and Swiber Holdings under the operative transactional documents are subordinate only to ICON Victorious’ rights in the Barge. The obligations of the Lessee are guaranteed by Swiber Holdings.

On June 26, 2009, we, through ICON Mynx, ICON Stealth and ICON Eclipse, executed Memoranda of Agreement (“MOA”) to purchase the Leighton Vessels from Leighton Contractors (Singapore) Pte. Ltd. (“Leighton”) for an aggregate purchase price of $133,000,000. We paid aggregate acquisition fees to our Manager of $3,990,000 relating to these transactions. Simultaneously with the execution of the MOA, each of ICON Mynx, ICON Stealth and ICON Eclipse entered into a bareboat charter to charter the Leighton Vessel that it owns to Leighton for a term of 96 months. During the term of the bareboat charters, Leighton will have the option to purchase each of the Leighton Vessels for a specified purchase option price on the dates defined in each respective bareboat charter. All of Leighton’s obligations are guaranteed by its ultimate parent company, Leighton Holdings Limited (“Leighton Holdings”), a publicly traded company that is listed on the Australian Stock Exchange.

Two of the three Leighton Vessels were acquired on June 26, 2009 for $58,000,000, including the incurrence of $34,800,000 of senior debt (the “Senior Tranche”) pursuant to a $79,800,000 senior facility agreement (the “Facility Agreement”) with Standard Chartered Bank, Singapore Branch (“Standard Chartered”) and $20,500,000 of subordinated seller’s credit (the “Subordinated Tranche”) pursuant to a $47,000,000 seller’s credit agreement with Leighton (the “Seller’s Credit Agreement”). The Seller’s Credit Agreement is subordinated only to the Facility Agreement. The Senior Tranche will be repaid by us in 20 quarterly principal and interest payments beginning on September 30, 2009. The Senior Tranche bore an interest rate of 4.8475% during the period from June 26, 2009 to September 30, 2009 (the “Stub Period”) and, thereafter, the interest rate was fixed pursuant to a swap agreement at 7.05%. The interest-free Subordinated Tranche will be repaid by us in eight annual principal payments beginning on June 25, 2010. The Subordinated Tranche is recorded on a discounted basis within other non-current liabilities and is being accreted to its carrying value as interest expense over its term. The bareboat charter for each of these two Leighton Vessels expires on June 25, 2017.
 
 

 
On October 28, 2009, we, through ICON Eclipse, purchased the remaining third Leighton Vessel from Leighton for $75,000,000. To purchase the Leighton Vessel, ICON Eclipse borrowed $45,000,000 of senior debt (the “Eclipse Senior Tranche”) pursuant to the Facility Agreement and $26,500,000 of subordinated seller’s credit (the “Eclipse Subordinated Tranche”) pursuant to the Seller’s Credit Agreement. The Eclipse Senior Tranche will be repaid by us in 20 quarterly principal and interest payments beginning on December 31, 2009. The interest-free Eclipse Subordinated Tranche will be repaid by us in eight annual principal payments beginning on October 28, 2010. The Eclipse Subordinated Tranche is recorded on a discounted basis within other non-current liabilities and is being accreted to its carrying value as interest expense over its term.

On October 30, 2009, ICON Ionian purchased the Ocean Princess from Lily Shipping Ltd. (“Lily Shipping”), a wholly-owned subsidiary of the Ionian Group (“Ionian”), for the purchase price of $10,750,000. Simultaneously with the purchase, the Ocean Princess was bareboat chartered back to Lily Shipping for 60 months. The purchase price consisted of (i) a non-recourse loan in the amount of $5,500,000 from Nordea Bank Norge ASA (“Nordea”), (ii) $950,000 in cash and (iii) a subordinated, interest-free $4,300,000 seller’s credit to Lily Shipping, which is due upon the sale of the Ocean Princess in accordance with the terms of the bareboat charter. If an event of default occurs, ICON Ionian’s obligation to repay the seller’s credit to Lily Shipping is terminated.  The obligations of Lily Shipping are guaranteed by Delta Petroleum Ltd., a wholly-owned subsidiary of Ionian. We paid an acquisition fee to our Manager of approximately $323,000 in connection with this transaction.

Manufacturing Equipment

On September 28, 2007, we completed the acquisition of and simultaneously leased back substantially all of the machining and metal working equipment of LC Manufacturing, LLC, a wholly-owned subsidiary of MWU (“LC Manufacturing”), for a purchase price of $14,890,000. The lease term commenced on January 1, 2008 and continues for a period of 60 months. We paid an acquisition fee to our Manager of approximately $447,000. On December 10, 2007, we completed the acquisition of and simultaneously leased back substantially all of the machining and metal working equipment of Crow, another wholly-owned subsidiary of MWU, for a purchase price of $4,100,000.  The lease term commenced on January 1, 2008 and continues for a period of 60 months. We paid an acquisition fee to our Manager of $123,000.

Simultaneously with the closing of the transactions with LC Manufacturing and Crow, Fund Ten and Fund Eleven (together with us, the “Participating Funds”) completed similar acquisitions with seven other subsidiaries of MWU, pursuant to which the funds purchased substantially all of the machining and metal working equipment of each subsidiary. The MWU subsidiaries’ obligations under their leases (including the leases of LC Manufacturing and Crow) are cross-collateralized and cross-defaulted, and all of the subsidiaries’ obligations are guaranteed by MWU. The Participating Funds have also entered into a credit support agreement, pursuant to which losses incurred by a Participating Fund with respect to any MWU subsidiary are shared among the Participating Funds in proportion to their respective capital investments. On September 5, 2008, the Participating Funds and IEMC Corp., a subsidiary of our Manager (“IEMC”), entered into an amended forbearance agreement with MWU, LC Manufacturing, Crow and seven other subsidiaries of MWU (collectively, the “MWU entities”) to cure certain non-payment related defaults by the MWU entities under their lease covenants with us. The terms of the agreement included, among other things, the pledge of additional collateral and the grant of a warrant for the purchase of 12% of the fully diluted common stock of MWU at an aggregate exercise price of $1,000, exercisable until March 31, 2015. The obligations of the MWU entities are guaranteed by their affiliate, American Metals Industries, Inc.  As of December 31, 2009, our proportionate share was 35.3% of the warrant issued for the fully diluted common stock of MWU. At December 31, 2009, our Manager determined that the fair value of the MWU warrant was $0.
 
 

 
On February 27, 2009, the Participating Funds and IEMC entered into a further amended forbearance agreement with the MWU entities to cure certain lease defaults. In consideration for restructuring LC Manufacturing’s lease payment schedule, we received, among other things, a warrant, exercisable until March 31, 2015, to purchase 10% of the fully diluted membership interests of LC Manufacturing at the time of exercise at an aggregate exercise price of $1,000. At December 31, 2009, our Manager determined that the fair value of the LC Manufacturing warrant was $0.

On June 1, 2009, we amended and restructured the master lease agreement with LC Manufacturing dated September 28, 2007 to reduce the assets under lease from $14,890,000 to approximately $12,420,000. Contemporaneously, we entered into a new lease with Metavation for the assets previously under lease with LC Manufacturing with a cost of approximately $2,470,000. The equipment is subject to a 43-month lease with Metavation that expires on December 31, 2012. The obligations of Metavation under the lease are guaranteed by its parent company, Cerion, LLC. In consideration for restructuring LC Manufacturing’s lease payment schedule, we received a warrant, exercisable until March 31, 2015, to purchase 65% of the fully diluted membership interests of LC Manufacturing at the time of exercise at an aggregate exercise price of $1,000. At December 31, 2009, our Manager determined that the fair value of the LC Manufacturing warrant was $0.

On December 11, 2007, we and Fund Eleven formed ICON EAR, with ownership interests of 55% and 45%, respectively. On December 28, 2007, ICON EAR purchased and simultaneously leased back semiconductor manufacturing equipment to EAR for a purchase price of $6,935,000, of which our share was approximately $3,814,000.  During June 2008, we and Fund Eleven made additional contributions to ICON EAR, which were used to complete another purchase and simultaneous leaseback of additional semiconductor manufacturing equipment to EAR for a total purchase price of approximately $8,795,000, of which our share was approximately $4,837,000. We and Fund Eleven retained ownership interests of 55% and 45%, respectively, subsequent to this transaction. The lease term commenced on July 1, 2008 and expires on June 30, 2013. As additional security for the purchase and lease, ICON EAR received mortgages on certain parcels of real property located in Jackson Hole, Wyoming. We paid acquisition fees to our Manager of approximately $259,000 relating to these transactions.

In October 2009, certain facts came to light that led our Manager to believe that EAR was perpetrating a fraud against EAR’s lenders, including ICON EAR. On October 23, 2009, EAR filed a petition for reorganization under Chapter 11 of the U.S. Bankruptcy Code. Although we believe that we are adequately secured under the transaction documents, due to the bankruptcy filing and ongoing investigation regarding the alleged fraud, at this time it is not possible to determine our ability to collect the amounts due to us in accordance with the leases or the additional security we received.  Accordingly, such assets have been classified as held for sale, net of estimated selling costs, on the accompanying consolidated balance sheet at December 31, 2009.

Our Manager periodically reviews the significant assets in our portfolio to determine whether events or changes in circumstances indicate that the net book value of an asset may not be recoverable. In light of the developments surrounding the semiconductor manufacturing equipment on lease to EAR, our Manager determined that the net book value of such equipment may not be recoverable. The following factors, among others, indicated that the net book value of the equipment may not be recoverable: (i) EAR’s failure to pay rental payments for the period from August 2009 through the date it filed for bankruptcy and (ii) EAR’s petition for reorganization under Chapter 11 of the U.S. Bankruptcy Code. Based on our Manager’s review, the net book value of the semiconductor manufacturing equipment exceeded the undiscounted cash flows and, as a result, we recognized a non-cash impairment charge of approximately $3,429,000 relating to the write down in value of the semiconductor manufacturing equipment. No amount of this impairment charge represents a cash expenditure and our Manager does not expect that any amount of this impairment charge will result in any future cash expenditures. In addition, ICON EAR had a net accounts receivable balance outstanding of approximately $573,000, which was charged to bad debt expense during the year ended December 31, 2009 in accordance with our accounting policies and the above mentioned factors.
 
 

 
On March 3, 2008, we, through our wholly-owned subsidiary, ICON French Equipment II, purchased auto parts manufacturing equipment and simultaneously leased back the equipment to Sealynx. The purchase price was approximately $11,626,000 (€7,638,400). The lease term commenced on March 3, 2008 and continues for a period of 60 months. We paid an acquisition fee to our Manager of approximately $350,000 (€229,152) relating to this transaction. As additional security for Sealynx’s obligations under the lease, we were granted a lien on property owned by Sealynx in France, valued at €3,746,400 at the acquisition date, and a guarantee from Sealynx’s parent company, Sealynx Automotive Holding.

Subsequently, due to the global downturn in the automotive industry, Sealynx requested a restructuring of its lease payments during the third quarter of 2009 and we agreed to reduce Sealynx’s lease payments.  On January 4, 2010, we restructured the payment obligations of Sealynx under the lease to provide it with cash flow flexibility while at the same time attempting to preserve our projected economic return on this investment.  As additional security for restructuring the payment obligations, we received an additional mortgage on certain real property owned by Sealynx located in Charleval, France.

On June 30, 2008, we and Fund Eleven formed ICON Pliant, which entered into an agreement with Pliant to acquire manufacturing equipment for a purchase price of $12,115,000, of which we paid approximately $5,452,000. On July 16, 2008, we and Fund Eleven completed the acquisition of and simultaneously leased back manufacturing equipment to Pliant. We and Fund Eleven have ownership interests in ICON Pliant of 45% and 55%, respectively. The lease expires on September 30, 2013. ICON Pliant paid an acquisition fee to our Manager of approximately $363,000, of which our share was approximately $163,000.

On February 11, 2009, Pliant commenced a voluntary Chapter 11 proceeding in U.S. Bankruptcy Court to eliminate all of its high-yield debt. In connection with this action, Pliant submitted a financial restructuring plan to eliminate its debt as part of a pre-negotiated package with its high yield creditors.  On September 22, 2009, Pliant assumed its lease with ICON Pliant and on December 3, 2009, Pliant emerged from bankruptcy.  To date, Pliant has made all of its lease payments.

Mining Equipment

On May 5, 2008, we, through our wholly-owned subsidiary, ICON Magnum, purchased the Dragline from Magnum Coal Company for a purchase price of approximately $12,461,000.  The Dragline was simultaneously leased back to Magnum Coal Company and its subsidiaries. The lease term commenced on June 1, 2008 and continues for a period of 60 months. We paid an acquisition fee to our Manager of approximately $374,000 relating to this transaction.

On February 18, 2009, we, through our wholly-owned subsidiary, ICON Murray, purchased mining equipment for approximately $3,348,000 that is subject to a lease with American Energy Corp. and Ohio American Energy, Incorporated. The lease expires on March 31, 2011.  The payment and performance obligations of American Energy Corp. are secured by a guarantee of its parent company, Murray Energy Corporation. We paid an acquisition fee to our Manager of approximately $100,000 relating to this transaction.
 
 

 
On May 26, 2009, we, through our wholly-owned subsidiary, ICON Murray II, purchased mining equipment subject to a lease between Varilease Finance, Inc. (“Varilease”), as lessor, and American Energy Corp. and The Ohio Valley Coal Company, as lessees. The equipment was purchased from Varilease for approximately $3,196,000 and is subject to a 30-month lease that expires on December 31, 2011. We paid an acquisition fee to our Manager of approximately $96,000 relating to this transaction.

Motor Coaches

On April 1, 2009, we, through our wholly-owned subsidiary, ICON Coach, acquired title to certain motor coaches from CUSA, an affiliate of Coach America, for approximately $5,314,000. The motor coaches are subject to a 60-month lease with CUSA that expires on March 31, 2014. The payment and performance obligations of CUSA are guaranteed by Coach America. We paid an acquisition fee to our Manager of approximately $159,000 relating to this transaction.

On December 11, 2009, ICON Coach borrowed approximately $3,207,000 from Wells Fargo Equipment Finance, Inc. (“Wells Fargo”).  The terms of the loan require ICON Coach to make 38 monthly payments of approximately $95,000 each from January 1, 2010 through February 1, 2013.  Interest is computed at a rate of 7.5% per year throughout the term of the loan.  In consideration for making the loan, Wells Fargo received a first priority security interest in (i) the fourteen 2009 MCI Model D4505 passenger motor coaches owned by ICON Coach, (ii) the master lease agreement between ICON Coach and CUSA, and (iii) the guaranty of Coach America.  ICON Coach has the option to prepay the loan (a) beginning January 1, 2011 through December 31, 2011 in consideration for a fee of 3% of the amount being prepaid or (b) beginning January 1, 2012 through the end of the term in consideration for a fee of 2% of the amount being prepaid.
 
Gas Compressors
 
On June 26, 2009, we and Fund Fourteen entered into a joint venture, ICON Atlas, for the purpose of investing in eight new Gas Compressors from AG. On June 26, 2009, ICON Atlas purchased four of the Gas Compressors from AG for approximately $4,270,000. Simultaneously with the purchase, ICON Atlas entered into a lease with APMC, an affiliate of Atlas Pipeline Partners, L.P. (“APP”).
 
On August 17, 2009, ICON Atlas purchased the other four Gas Compressors from AG for approximately $7,028,000. Simultaneously with that purchase, ICON Atlas entered into a second schedule to the lease with APMC.  Each schedule is for a period of 48 months and expires on August 31, 2013.  The obligations of APMC are guaranteed by its parent company, APP.  As of December 31, 2009, our and Fund Fourteen’s ownership interests in ICON Atlas were 55% and 45%, respectively. We paid an acquisition fee to our Manager in the amount of approximately $186,000 in connection with this transaction.

Note Receivable Secured by Solar Panel Production Equipment

On August 13, 2007, we, along with a consortium of other lenders, entered into an equipment financing facility with Solyndra, Inc. (“Solyndra”), a privately-held manufacturer of solar panels, for the building of a new production facility.  The financing facility was set to mature on June 30, 2013 and was secured by the equipment as well as all other assets of Solyndra.  The equipment was comprised of two fully-automated manufacturing lines that combine glass tubes and thin film semiconductors to produce solar panels.  In connection with the transaction, we received a warrant for the purchase of up to 40,290 shares of Solyndra common stock at an exercise price of $4.96 per share.  The warrant is set to expire on April 6, 2014.  The financing facility was for a maximum amount of $93,500,000, of which we committed to invest up to $5,000,000. As of June 30, 2008, we had loaned approximately $4,367,000.  On July 27, 2008, Solyndra fully repaid the outstanding note receivable and the entire financing facility was terminated.  We received approximately $4,437,000 from the repayment, which consisted of principal and accrued interest.  The repayment does not affect the warrant held by us and we retain our rights thereunder.  At December 31, 2009, our Manager determined that the fair value of this warrant was $79,371.
 
 

 
Note Receivable Secured by a Machine Paper Coating Manufacturing Line
 
On November 7, 2008, we, through our wholly-owned subsidiary, ICON Appleton, made a secured term loan to Appleton in the amount of $22,000,000. The loan is secured by a machine paper coating manufacturing line. Interest on the term note accrued at 12.5% per year and was payable monthly in arrears in accordance with the promissory note for a period of 60 months. We paid an acquisition fee to our Manager of $660,000 relating to this transaction.
 
On March 26, 2009, the loan and security agreement and the secured term loan note issued by Appleton were amended due to a default on one of its covenants. As a result of the default provisions of the loan and security agreement, the interest on the term note was adjusted to accrue interest at 14.25% per year and is payable monthly in arrears.  On February 26, 2010, we amended certain financial covenants in the loan agreement with Appleton.  In consideration for amending the loan, we received an amendment fee in the amount of approximately $117,000 from Appleton.

Notes Receivable Secured by Credit Card Machines

On November 25, 2008, ICON Northern Leasing, a joint venture among us, Fund Ten and Fund Eleven, purchased the Notes and received an assignment of the underlying master loan and security agreement (the “MLSA”), dated July 28, 2006. We, Fund Ten and Fund Eleven have ownership interests of 52.75%, 12.25% and 35%, respectively, in ICON Northern Leasing. The aggregate purchase price for the Notes was approximately $31,573,000, net of a discount of approximately $5,165,000. The Notes are secured by an underlying pool of leases for credit card machines. Northern Leasing Systems, Inc. (“Northern Leasing Systems”), the originator and servicer of the Notes, provided a limited guarantee of the MLSA for payment deficiencies up to approximately $6,355,000. The Notes accrue interest at rates ranging from 7.97% to 8.40% per year and require monthly payments ranging from approximately $183,000 to $422,000. The Notes mature between October 15, 2010 and August 14, 2011 and require balloon payments at the end of each note ranging from approximately $594,000 to $1,255,000. Our share of the purchase price of the Notes was approximately $16,655,000 and we paid an acquisition fee to our Manager of approximately $500,000 relating to this transaction.

On March 31, 2009, we, through our wholly-owned subsidiary, ICON Northern Leasing II, provided a senior secured loan in the amount of approximately $7,870,000 (the “Northern Leasing II Loan”) to NCA XV and NCA XIV, pursuant to the MLSA dated March 31, 2009. The Northern Leasing II Loan accrues interest at a rate of 18% per year and is secured by a first priority security interest in an underlying pool of leases for credit card machines of NCA XV and a second priority security interest in an underlying pool of leases for credit card machines of NCA XIV (subject only to the first priority security interest of ICON Northern Leasing). Northern Leasing Systems, the originator and servicer of the Northern Leasing II Loan, provided a limited guarantee for payment deficiencies of up to 10% of the Northern Leasing II Loan, or approximately $787,000. We paid an acquisition fee to our Manager of approximately $314,000 relating to this transaction.

 
Notes Receivable Secured by Analog Seismic System Equipment

On June 29, 2009, we and Fund Fourteen entered into a joint venture, ICON ION, for the purpose of making the ION Loans in the aggregate amount of $20,000,000 to the ARAM Borrowers.  On that date, ICON ION funded the first tranche of the ION Loans in the amounts of $8,825,000 and $3,675,000 to ARC and ASR, respectively.  On July 20, 2009, ICON ION funded the second tranche of the ION Loans to ARC in the amount of $7,500,000.

The ARAM Borrowers are wholly-owned subsidiaries of ION Geophysical Corporation, a Delaware corporation (“ION”).  The ION Loans are secured by (i) a first priority security interest in all of the ARAM analog seismic system equipment owned by the ARAM Borrowers and (ii) a pledge of all of the equity interests in the ARAM Borrowers.  In addition, ION guaranteed all obligations of the ARAM Borrowers under the ION Loans.  Interest accrues at the rate of 15% per year and the ION Loans are payable monthly in arrears for a period of 60 months beginning on August 1, 2009.  As of December 31, 2009, our and Fund Fourteen’s ownership interests in ICON ION were 55% and 45%, respectively.  We paid an acquisition fee to our Manager in the amount of $330,000 in connection with this transaction.

Note Receivable Secured by Rail Support Construction Equipment

On December 23, 2009, ICON Quattro, a joint venture owned 55% by us and 45% by Fund Fourteen, participated in a £24,800,000 facility by making a second priority secured term loan to Quattro Plant in the amount of £5,800,000.  Quattro Plant is a wholly-owned subsidiary of Quattro Group Limited (“Quattro Group”).  The loan is secured by (i) all of Quattro Plant’s Construction Equipment and any other existing or future asset owned by Quattro Plant, (ii) all of Quattro Plant’s accounts receivable, and (iii) a mortgage over certain real estate in London, England owned by the majority shareholder of Quattro Plant.  In addition, ICON Quattro will receive a key man insurance policy insuring the life of the majority shareholder of ICON Quattro in an amount not less than £5,500,000 and not more than £5,800,000.  All of Quattro Plant’s obligations under the loan are guaranteed by Quattro Group and its subsidiaries, Quattro Hire Limited and Quattro Occupational Academy Limited (collectively, the “Quattro Companies”). 

Interest on the secured term loan accrues at a rate of 20% per year and the loan will be amortized to a balloon payment of 15% at the end of the term.  The loan is payable monthly in arrears for a period of 33 months, which began on January 1, 2010.  Quattro Plant has the option to prepay the entire outstanding amount of the loan beginning January 1, 2012 in consideration for a fee of 5% of the amount being prepaid.

Simultaneously with ICON Quattro’s loan, KBC Bank N.V. (“KBC”) participated in the £24,800,000 loan financing by making a loan of £19,000,000 to Quattro Plant (the “KBC Loan”).  The KBC Loan is secured by (i) a first priority security interest in all of Quattro Plant’s Construction Equipment and any other existing or future asset owned by Quattro Plant and (ii) a first priority security interest in all of Quattro Plant’s accounts receivable.

Simultaneously with the consummation of ICON Quattro’s loan and the KBC Loan, ICON Quattro, KBC, Quattro Plant, Quattro Group and the Quattro Companies entered into an intercreditor deed governing the relationship between ICON Quattro and KBC.  In the event either ICON Quattro or KBC seeks to enforce its security interest under its respective loan, the proceeds from the enforcement of any security interest shall be applied (i) first, to pay all costs and expenses incurred by or on behalf of ICON Quattro or KBC, (ii) second, to KBC in an amount that would allow KBC to receive its return on its investment, and (iii) third, to ICON Quattro in an amount that would allow ICON Quattro to receive its return on its investment.  ICON Quattro paid an acquisition fee to our Manager of approximately $807,000 relating to this transaction, of which our share was approximately $480,000.
 
 

 
Recently Adopted Accounting Pronouncements

In 2009, we adopted and, for presentation and disclosure purposes, retrospectively applied the accounting pronouncement which relates to noncontrolling interests in consolidated financial statements. As a result, noncontrolling interests are reported as a separate component of consolidated equity and income (loss) attributable to the noncontrolling interest is included in consolidated net income (loss). The attribution of income (loss) between controlling and noncontrolling interests is disclosed on the accompanying consolidated statements of operations.  See Note 2 to our consolidated financial statements.

In 2009, we adopted the accounting pronouncement relating to accounting for fair value measurements, which establishes a framework for measuring fair value and enhances fair value measurement disclosure for non-financial assets and liabilities. See Note 2 to our consolidated financial statements.

In 2009, we adopted the accounting pronouncement that amended the current accounting and disclosure requirements for derivative instruments. The requirements were amended to enhance how: (a) an entity uses derivative instruments; (b) derivative instruments and related hedged items are accounted for; and (c) derivative instruments and related hedged items affect an entity’s financial position, financial performance, and cash flows. See Note 2 to our consolidated financial statements.
 
In 2009, we adopted the accounting pronouncement that provides additional guidance for estimating fair value in accordance with the accounting standard for fair value measurements when the volume and level of activity for the asset or liability have significantly decreased. This pronouncement also provides guidance for identifying transactions that are not orderly. This pronouncement was effective prospectively for all interim and annual reporting periods ending after June 15, 2009. See Note 2 to our consolidated financial statements.

In 2009, we adopted the accounting pronouncement that amends the requirements for disclosures about fair value of financial instruments, regarding the fair value of financial instruments for annual, as well as interim, reporting periods. This pronouncement was effective prospectively for all interim and annual reporting periods ending after June 15, 2009. See Note 2 to our consolidated financial statements.

In 2009, we adopted the accounting pronouncement regarding the general standards of accounting for, and disclosure of, events that occur after the balance sheet date, but before the financial statements are issued. This pronouncement was effective prospectively for interim and annual reporting periods ending after June 15, 2009. See Note 2 to our consolidated financial statements.

In 2009, we adopted Accounting Standards Codification 105, “Generally Accepted Accounting Principles,” which establishes the Financial Accounting Standards Board Accounting Standards Codification (the “Codification”), which supersedes all existing accounting standard documents and is the single source of authoritative non-governmental U.S. Generally Accepted Accounting Principles (“US GAAP”).  All other accounting literature not included in the Codification is considered non-authoritative. This accounting standard is effective for interim and annual periods ending after September 15, 2009. The Codification did not change or alter existing US GAAP and it did not result in a change in accounting practices for us upon adoption. We have conformed our consolidated financial statements and related notes to the new Codification for the year ended December 31, 2009. See Note 2 to our consolidated financial statements.



 
Critical Accounting Policies

An understanding of our critical accounting policies is necessary to understand our financial results. The preparation of financial statements in conformity with US GAAP requires our Manager to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities as of the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Significant estimates primarily include the determination of allowance for doubtful accounts, depreciation and amortization, impairment losses, estimated useful lives and residual values.  Actual results could differ from those estimates. We applied our critical accounting policies and estimation methods consistently in all periods presented.  We consider the following accounting policies to be critical to our business:

·  
Lease classification and revenue recognition;
·  
Asset impairments;
·  
Depreciation;
·  
Notes receivable;
·  
Initial direct costs;
·  
Acquisition fees;
·  
Foreign currency translation;
·  
Warrants; and
·  
Derivative financial instruments.

Lease Classification and Revenue Recognition

Each equipment lease we enter into is classified as either a finance lease or an operating lease, which is determined based upon the terms of each lease.  For a finance lease, initial direct costs are capitalized and amortized over the lease term.  For an operating lease, the initial direct costs are included as a component of the cost of the equipment and depreciated over the lease term.

For finance leases, we record, at lease inception, the total minimum lease payments receivable from the lessee, the estimated unguaranteed residual value of the equipment at lease termination, the initial direct costs related to the lease and the related unearned income.  Unearned income represents the difference between the sum of the minimum lease payments receivable, plus the estimated unguaranteed residual value, minus the cost of the leased equipment.  Unearned income is recognized as finance income over the term of the lease using the effective interest rate method.
 
For operating leases, rental income is recognized on a straight-line basis over the lease term.  Billed operating lease receivables are included in accounts receivable until collected. Accounts receivable are stated at their estimated net realizable value. Deferred revenue is the difference between the timing of the receivables billed and the income recognized on a straight-line basis.

For notes receivable, we use the effective interest rate method to recognize interest income, which produces a constant periodic rate of return on the investment, when earned.

The recognition of revenue may be suspended when deemed appropriate by our Manager in accordance with our policy on doubtful accounts.

Our Manager has an investment committee that approves each new equipment lease and other financing transaction. As part of its process, the investment committee determines the residual value, if any, to be used once the investment has been approved.  The factors considered in determining the residual value include, but are not limited to, the creditworthiness of the potential lessee, the type of equipment considered, how the equipment is integrated into the potential lessee’s business, the length of the lease and the industry in which the potential lessee operates.  Residual values are reviewed for impairment in accordance with our impairment review policy.
 
 

 
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 marketplace 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.  The residual value is calculated using information from various external sources, such as trade publications, auction data, equipment dealers, wholesalers and industry experts, as well as inspection of the physical asset and other economic indicators.

Asset Impairments

The significant assets in our portfolio are periodically reviewed, no less frequently than annually or when indicators of impairment exist, to determine whether events or changes in circumstances indicate that the carrying value of an asset may not be recoverable. An impairment loss will be recognized only if the carrying value of a long-lived asset is not recoverable and exceeds its fair market value.  If there is an indication of impairment, we will estimate the future cash flows (undiscounted and without interest charges) expected from the use of the asset and its eventual disposition. Future cash flows are the future cash inflows expected to be generated by an asset less the future outflows expected to be necessary to obtain those inflows. If an impairment is determined to exist, the impairment loss will be measured as the amount by which the carrying value of a long-lived asset exceeds its fair value and recorded in the consolidated statement of operations in the period the determination is made.

The events or changes in circumstances that generally indicate that an asset may be impaired are (i) the estimated fair value of the underlying equipment is less than its carrying value or (ii) the lessee is experiencing financial difficulties and it does not appear likely that the estimated proceeds from the disposition of the asset will be sufficient to satisfy the residual position in the asset and, if applicable, the remaining obligation to the non-recourse lender.  Generally in the latter situation, the residual position relates to equipment subject to third-party non-recourse debt where the lessee remits its rental payments directly to the lender and we do not recover our residual position until the non-recourse debt is repaid in full. The preparation of the undiscounted cash flows requires the use of assumptions and estimates, including the level of future rents, the residual value expected to be realized upon disposition of the asset, estimated downtime between re-leasing events and the amount of re-leasing costs. Our Manager’s review for impairment includes a consideration of the existence of impairment indicators including third-party appraisals, published values for similar assets, recent transactions for similar assets, adverse changes in market conditions for specific asset types and the occurrence of significant adverse changes in general industry and market conditions that could affect the fair value of the asset.

Depreciation

We record depreciation expense on equipment when the lease is classified as an operating lease.  In order to calculate depreciation, we first determine the depreciable equipment cost, which is the cost less the estimated residual value.  The estimated residual value is our estimate of the value of the equipment at lease termination.  Depreciation expense is recorded by applying the straight-line method of depreciation to the depreciable equipment cost over the lease term.

Notes Receivable

Notes receivable are reported in our consolidated balance sheets at the outstanding principal balance net of any unamortized deferred fees, premiums or discounts on purchased loans. Costs on originated loans are reported as other current and other non-current assets in our consolidated balance sheets. Unearned income, discounts and premiums are amortized to income as a component of interest income using the effective interest rate method in our consolidated statements of operations.  Interest receivable related to the unpaid principal is recorded separately from the outstanding balance in our consolidated balance sheets.
 
 

 
Initial Direct Costs

We capitalize initial direct costs associated with the origination and funding of leased assets and other financing transactions in accordance with the accounting pronouncement that accounts for nonrefundable fees and costs associated with originating or acquiring loans and initial direct costs of leases. The costs are amortized on a lease by lease basis based on the actual lease term using a straight-line method for operating leases and the effective interest rate method for direct finance leases and notes receivable in our consolidated statements of operations. Costs related to leases or other financing transactions that are not consummated are expensed as an acquisition expense in our consolidated statements of operations.

Acquisition Fees

Pursuant to our LLC Agreement, we pay acquisition fees to our Manager equal to 3% of the purchase price for our investments. These fees are capitalized and included in the cost of the investment in our consolidated balance sheets.

Foreign Currency Translation
 
Assets and liabilities having non-U.S. dollar functional currencies are translated at month-end exchange rates. Contributed capital accounts are translated at the historical rate of exchange when the capital was contributed or distributed. Revenues, expenses and cash flow items are translated at the weighted average exchange rate for the period. Resulting translation adjustments are recorded as a separate component of accumulated other comprehensive income or loss (“AOCI”) in our consolidated balance sheets.

Warrants

Warrants held by us are not registered for public sale and are revalued on a quarterly basis.  The revaluation of warrants is calculated using the Black-Scholes option pricing model.  The assumptions utilized in the Black-Scholes model include share price, strike price, expiration date, risk-free rate and the volatility percentage.  The change in the fair value of warrants is recognized in our consolidated statements of operations.

Derivative Financial Instruments

We may enter into derivative transactions for purposes of hedging specific financial exposures, including movements in foreign currency exchange rates and changes in interest rates on our non-recourse long-term debt. We enter into these instruments only for hedging underlying exposures. We do not hold or issue derivative financial instruments for purposes other than hedging, except for warrants, which are not hedges. Certain derivatives may not meet the established criteria to be designated as qualifying accounting hedges, even though we believe that these are effective economic hedges.

We account for derivative financial instruments in accordance with the accounting pronouncements that established accounting and reporting standards for derivative financial instruments.  These accounting pronouncements require us to recognize all derivatives as either assets or liabilities on the consolidated balance sheets and measure those instruments at fair value. We recognize the fair value of all derivatives as either assets or liabilities on the consolidated balance sheets and changes in the fair value of such instruments are recognized immediately in earnings unless certain accounting criteria established by the accounting pronouncements are met. These criteria demonstrate that the derivative is expected to be highly effective at offsetting changes in the fair value or expected cash flows of the underlying exposure at both the inception of the hedging relationship and on an ongoing basis and include an evaluation of the counterparty risk and the impact, if any, on the effectiveness of the derivative. If these criteria are met, which we must document and assess at inception and on an ongoing basis, we recognize the changes in fair value of such instruments in AOCI, a component of equity on the consolidated balance sheets. Changes in the fair value of the ineffective portion of all derivatives are recognized immediately in earnings.
 
 

 
Other Recent Events

Since the onset of the recession in December 2007, the rate of payment defaults by lessees, borrowers and other financial counterparties has generally risen significantly.  Our Manager continuously reviews and evaluates our transactions to take such action as it deems necessary to mitigate any adverse developments on our liquidity, cash flows or profitability, which may include agreeing to restructure a transaction with one or more of our lessees, borrowers or other financial counterparties.  In the event of a restructuring of a transaction, our Manager generally expects that the lessee, borrower and/or other financial counterparty will ultimately be able to satisfy its obligations to us.  As a result thereof, our Manager has discussed and continues to discuss restructuring options with some of our lessees, borrowers and other financial counterparties.  In many instances, the transaction is not restructured and continues as initially structured.  Nevertheless, none of the other equipment leasing and financing funds managed by our Manager has experienced any material defaults in payment that would materially impact such fund’s liquidity, cash flows or profitability.  There can be no assurance that any future restructurings will not have an adverse effect on our financial position, results of operations or cash flows. Except as otherwise disclosed in this Annual Report on Form 10-K, our Manager has not agreed to restructure any of our transactions and we have not taken any impairment charges and there is no information that would cause our Manager to take an impairment charge on any of our transactions at this time.

Results of Operations for the Years Ended December 31, 2009 (“2009”) and 2008 (“2008”)

Our offering period ended on April 30, 2009 and our operating period commenced on May 1, 2009. We invested most of the net proceeds from our offering in equipment leases and other financing transactions. During our operating period, we have made and will continue to make investments with the cash generated from our initial investments and our additional investments to the extent that the cash is not used for expenses, reserves and distributions to members. As our investments mature, we may reinvest the proceeds in additional investments in equipment or other financing transactions. We anticipate incurring gains or losses on our investments during our operating period. Additionally, we expect to see our rental income and finance income increase, as well as related expenses such as depreciation and amortization expense and interest expense. We anticipate that the fees we pay our Manager to manage our investment portfolio will increase during this period as the size and volume of activity in our investment portfolio will increase.
 
 
Revenue for 2009 and 2008 is summarized as follows:

   
Years Ended December 31,
       
   
2009
   
2008
   
Change
 
 Rental income
  $ 59,604,472     $ 22,940,645     $ 36,663,827  
 Finance income
    7,246,926       3,695,178       3,551,748  
 Income from investment in joint venture
    573,040       325,235       247,805  
 Interest and other income
    11,066,780       2,385,444       8,681,336  
                         
 Total revenue
  $ 78,491,218     $ 29,346,502     $ 49,144,716  
 
 

 
Total revenue for 2009 increased $49,144,716 as compared to 2008. The increase in total revenue was primarily due to increases in rental income of approximately $36,664,000 due to the acquisitions of (i) the Gas Compressors by ICON Atlas in June 2009 and August 2009, (ii) the Diving Equipment by ICON Diving Marshall Islands in June 2009, (iii) mining equipment by ICON Murray in February 2009 and ICON Murray II in May 2009, (iv) motor coaches by ICON Coach in April 2009, and (v) the Barge by Victorious in March 2009. In addition, we recorded a full year of rental income during 2009 related to the acquisitions of (i) marine vessels by ICON Carina Holdings and ICON Corona Holdings in December 2008, (ii) marine vessels by ICON Eagle Holdings in November 2008, (iii) additional manufacturing equipment by ICON EAR in June 2008, (iv) the Dragline by ICON Magnum in May 2008, (v) marine vessels by ICON Aegean and ICON Arabian in April 2008 and (vi) the additional telecommunications equipment by ICON Global Crossing IV in March 2008. The increase in interest and other income was primarily due to the interest received from the notes receivable invested in by ICON ION in June 2009 and July 2009 and ICON Northern Leasing II in March 2009 and the interest earned in our money market accounts. In addition, we recorded a full year of interest income for the notes receivable invested in by ICON Appleton and ICON Northern Leasing in November 2008. The increase in interest and other income was primarily offset by a decrease in interest income from Solyndra, as this note was paid in full in July 2008. The increase in finance income was primarily due to the acquisitions of (i) the Leighton Vessel by ICON Eclipse and the Ocean Princess by ICON Ionian in October 2009, (ii) the other two Leighton Vessels by ICON Mynx and ICON Stealth in June 2009, and (iii) the additional telecommunications equipment by ICON Global Crossing IV in March 2009. In addition, we recorded a full year of finance income during 2009 related to the acquisition of auto parts manufacturing equipment by ICON French Equipment II in March 2008.

Expenses for 2009 and 2008 are summarized as follows:

   
Years Ended December 31,
       
   
2009
   
2008
   
Change
 
               
 
 
 Management fees - Manager
  $ 3,390,239     $ 1,474,993     $ 1,915,246  
 Administrative expense reimbursements - Manager
    3,594,400       2,705,118       889,282  
 General and administrative
    2,276,211       1,350,134       926,077  
 Interest
    11,616,105       3,086,275       8,529,830  
 Depreciation and amortization
    34,507,641       12,875,095       21,632,546  
 Bad debt expense
    572,721       -       572,721  
 Impairment loss
    3,429,316       -       3,429,316  
 Loss on financial instruments
    25,642       55,495       (29,853 )
 Total expenses
  $ 59,412,275     $ 21,547,110     $ 37,865,165  

Total expenses for 2009 increased $37,865,165 as compared to 2008. The increase in total expenses was primarily due to increases in depreciation and amortization expense of approximately $21,633,000 due to the acquisitions of (i) the Gas Compressors by ICON Atlas in June 2009 and August 2009, (ii) the Diving Equipment by ICON Diving Marshall Islands in June 2009, (iii) mining equipment by ICON Murray in February 2009 and ICON Murray II in May 2009, (iv) motor coaches by ICON Coach in April 2009, and (v) the Barge by Victorious in March 2009.  The increase in depreciation and amortization expense was also due to the amortization expense for capitalized fees on direct finance leases for (i) the Leighton Vessel acquired by ICON Eclipse and the Ocean Princess acquired by ICON Ionian in October 2009, (ii) the other two Leighton Vessels acquired by ICON Mynx and ICON Stealth in June 2009, and (iii) the additional telecommunications equipment acquired by ICON Global Crossing IV in March 2009, as well as the amortization expense for capitalized fees on the notes receivable invested in by ICON ION in June 2009 and July 2009 and ICON Northern Leasing II in March 2009. In addition, we recorded a full year of depreciation and amortization expense during 2009 related to the acquisitions of (i) marine vessels by ICON Carina Holdings and ICON Corona Holdings in December 2008, (ii) marine vessels by ICON Eagle Holdings in November 2008, (iii) the notes receivable invested in by ICON Appleton and ICON Northern Leasing in November 2008, (iv) the Dragline by ICON Magnum in May 2008, (v) marine vessels by ICON Aegean and ICON Arabian in April 2008 and (vi) auto parts manufacturing equipment by ICON French Equipment II in March 2008. The increase in interest expense was primarily due to the interest incurred on the non-recourse debt owed by ICON Eclipse, ICON Ionian, ICON Mynx, ICON Stealth, ICON Eagle Holdings, ICON Corona Holdings, ICON Carina Holdings, ICON Mayon, ICON Aegean and ICON Arabian. The increase in impairment loss was due to the impairment charge recognized on the semiconductor manufacturing equipment owned by ICON EAR in 2009. The increase in Management fees – Manager and Administrative expense reimbursements – Manager resulted from our increased investment in equipment subject to lease and other financing transactions during 2009. The increase in general and administrative expense was primarily due to the accounts receivable balance for ICON EAR that was charged to bad debt expense and the increase in professional fees during 2009.
 
 

 
Noncontrolling Interests

Net income attributable to noncontrolling interests for 2009 increased $3,363,215 as compared to 2008. The increase in income attributable to noncontrolling interests was primarily due to our investment in controlling interests in (i) ICON Quattro, ICON Atlas and ICON ION during 2009, in each of which Fund Fourteen has a noncontrolling interest, (ii) Victorious in March 2009, in which Swiber has a noncontrolling interest and (iii) ICON Carina Holdings, ICON Corona Holdings and ICON Northern Leasing in 2008, in each of which Fund Ten has a noncontrolling interest. In addition, Fund Eleven acquired a noncontrolling interest in ICON Northern Leasing in 2008, which contributed to the increase in income attributable to noncontrolling interests. The increase in income attributable to noncontrolling interests was offset by the impairment loss recorded by ICON EAR, in which Fund Eleven has a noncontrolling interest.

Net Income Attributable to Fund Twelve

As a result of the foregoing changes from 2008 to 2009, net income attributable to us for 2009 and 2008 was $13,858,916 and $5,942,580, respectively. Net income attributable to us per weighted average additional Share for 2009 and 2008 was $41.08 and $32.36, respectively.

Results of Operations for the Years Ended December 31, 2008 (“2008”) and 2007 (“2007”)

Revenue for 2008 and 2007 is summarized as follows:

   
Years Ended December 31,
       
   
2008
   
2007
   
Change
 
 Rental income
  $ 22,940,645     $ 3,745,463     $ 19,195,182  
 Finance income
    3,695,178       762,779       2,932,399  
 Income from investment in joint venture
    325,235       -       325,235  
 Interest and other income
    2,385,444       322,073       2,063,371  
                         
 Total revenue
  $ 29,346,502     $ 4,830,315     $ 24,516,187  

Total revenue for 2008 increased $24,516,187 as compared to 2007. The increase in total revenue was primarily attributable to increases in rental income due to the acquisitions of approximately $10,585,000 of (i) additional telecommunications equipment by ICON Global Crossing IV in March 2008, (ii) the Vroon Vessels owned by ICON Aegean and ICON Arabian in April 2008, (iii) the Dragline owned by ICON Magnum in May 2008, (iv) additional manufacturing equipment by ICON EAR prior to June 30, 2008, (v) the marine vessels owned by ICON Eagle Holdings in November 2008 and (vi) the marine vessels owned by ICON Carina Holdings and ICON Corona Holdings in December 2008. In addition, we recognized a full year of rental income for 2007 acquisitions of (i) the marine vessel owned by ICON Mayon in July 2007, (ii) the machining and metal working equipment acquired from LC Manufacturing in September 2007, (iii) the telecommunications equipment owned by ICON Global Crossing IV after the second quarter of 2007 and (iv) the equipment owned by ICON EAR and the machining and metal working equipment acquired from Crow in December 2007, which resulted in an increase of approximately $8,611,000.  The increase in finance income was from ICON French Equipment II’s investment in a finance lease with Sealynx in March 2008 and ICON Global Crossing IV’s investment in a finance lease with Global Crossing after the second quarter of 2007, which resulted in increases of approximately $1,510,000 and $1,422,000, respectively.  The increase in interest income was due to the interest received on our money market account as well as the notes receivable with Solyndra, Appleton and NCA XIV and NCA XV.
 
 

 
Expenses for 2008 and 2007 are summarized as follows:

   
Years Ended December 31,
       
   
2008
   
2007
   
Change
 
   
 
         
 
 
 Management fees - Manager
  $ 1,474,993     $ 178,289     $ 1,296,704  
 Administrative expense reimbursements - Manager
    2,705,118       1,346,866       1,358,252  
 General and administrative
    1,350,134       161,497       1,188,637  
 Interest
    3,086,275       704,418       2,381,857  
 Depreciation and amortization
    12,875,095       1,860,863       11,014,232  
 Loss on financial instruments
    55,495       25,024       30,471  
                         
 Total expenses
  $ 21,547,110     $ 4,276,957     $ 17,270,153  

Total expenses for 2008 increased $17,270,153 as compared to 2007. The increase in total expenses was primarily attributable to increases in depreciation and amortization expense due to acquisitions of approximately $6,089,000 of (i) additional telecommunications equipment by ICON Global Crossing IV in March 2008, (ii) the auto parts manufacturing equipment owned by ICON French Equipment II in March 2008, (iii) the Vroon Vessels owned by ICON Aegean and ICON Arabian in April 2008, (iv) the Dragline owned by ICON Magnum in May 2008, (v) the additional manufacturing equipment acquired by ICON EAR prior to June 30, 2008, (vi) the marine vessels owned by ICON Eagle Holdings and the notes receivable invested in by ICON Appleton and ICON Northern Leasing in November 2008 and (vii) the marine vessels owned by ICON Carina Holdings and ICON Corona Holdings in December 2008. In addition, we recognized a full year of depreciation for 2007 acquisitions of (i) the marine vessel owned by ICON Mayon in July 2007, (ii) the machining and metal working equipment acquired from LC Manufacturing in September 2007, (iii) the telecommunications equipment owned by ICON Global Crossing IV after the second quarter of 2007 and (iv) the manufacturing equipment owned by ICON EAR and the machining and metal working equipment acquired from Crow in December 2007, which resulted in an increase of approximately $4,925,000. The increase in interest expense was primarily due to the interest incurred on the non-recourse debt owed by ICON Aegean, ICON Arabian and ICON Mayon. The increase in Management fees – Manager resulted from our increased investment in leased assets in 2008. Administrative expense reimbursements - Manager are costs incurred by our Manager that are necessary to our operations.  These costs include our Manager’s legal, accounting, investor relations and operations personnel, as well as professional fees and other costs, that are charged to us based upon the percentage of time such personnel dedicate to our operations. Both Management fees – Manager and Administrative expense reimbursements – Manager are expected to increase as we make more investments. The increase in general and administrative expenses was primarily due to the increase in professional fees during 2008.
 
Noncontrolling Interests

Net income attributable to noncontrolling interests for 2008 increased $1,420,306 as compared to 2007. The increase in income attributable to noncontrolling interests was primarily due to our investments in ICON Carina Holdings, ICON Corona Holdings and ICON Northern Leasing in 2008. Fund Ten has a noncontrolling interest in ICON Carina Holdings, ICON Corona Holdings and ICON Northern Leasing, which resulted in the increase in income attributable to noncontrolling interests. Also contributing to the increase was the full year impact of Fund Ten’s noncontrolling interest in ICON Mayon, which acquired the Mayon Spirit in July 2007. The increase in income attributable to noncontrolling interests was also due to the noncontrolling interest that Fund Eleven has in ICON Northern Leasing, which was acquired in 2008 and the full year impact of Fund Eleven’s noncontrolling interest in ICON EAR, which was acquired in December 2007.
 
 

 
Net Income Attributable to Fund Twelve

As a result of the foregoing changes from 2007 to 2008, net income attributable to us for 2008 and 2007 was $5,942,580 and $116,852, respectively. Net income attributable to us per weighted average additional Share for 2008 and 2007 was $32.36 and $2.45, respectively.

Financial Condition

This section discusses the major balance sheet variances from 2009 compared to 2008.

Total Assets

Total assets increased $182,392,844, from $438,585,542 at December 31, 2008 to $620,978,386 at December 31, 2009. The increase was primarily due to cash proceeds received from our equity raise, which provided us with funds to make additional investments during 2009. We acquired the Gas Compressors owned by ICON Atlas, the Diving Equipment, the Barge, the motor coaches owned by ICON Coach, and the mining equipment owned by ICON Murray and ICON Murray II during 2009, which accounted for the increase in our leased equipment at cost. The increase in our leased equipment at cost was offset by the recognition of depreciation expense on all of our assets and impairment charges recognized on the semiconductor manufacturing equipment owned by ICON EAR. The increase in notes receivable was due to our investments in notes receivable through ICON Quattro, ICON ION and ICON Northern Leasing II during 2009. The increase in net investment in finance leases resulted from our investments in the Leighton Vessels, the Ocean Princess, and additional telecommunications equipment during 2009. In addition, we capitalized the deferred financing costs and initial direct costs associated with acquisitions entered into during 2009.

Current Assets

Current assets increased $10,524,732, from $71,097,660 at December 31, 2008 to $81,622,392 at December 31, 2009, primarily due to the cash proceeds used to invest in additional equipment subject to lease and other financing transactions entered into during 2009. In addition, we classified the assets owned by ICON EAR as assets held for sale, net of selling costs, as we intend to sell the assets during 2010. We also classified as other current assets a portion of the deferred financing costs and initial direct costs associated with acquisitions entered into during 2009.

Total Liabilities

Total liabilities increased $104,350,091, from $174,993,070 at December 31, 2008 to $279,343,161 at December 31, 2009.  The increase was primarily due to the non-recourse debt obligations incurred by ICON Eclipse, ICON Ionian, ICON Mynx, ICON Stealth and ICON Victorious during 2009.
 
Current Liabilities

Current liabilities increased $16,807,316, from $41,491,899 at December 31, 2008 to $58,299,215 at December 31, 2009.  The increase was primarily due to the non-recourse debt obligations incurred by ICON Eclipse, ICON Ionian, ICON Mynx and ICON Stealth during 2009.

Equity

Equity increased $78,042,753, from $263,592,472 at December 31, 2008 to $341,635,225 at December 31, 2009. The majority of this balance was primarily due to our equity raise, which was partially offset by the distributions paid to our members and noncontrolling interests, the organizational and offering expense allowance paid to our Manager, the sales commissions paid to third party broker-dealers and underwriting fees paid to ICON Securities. Equity also increased as a result of our net income for 2009 and the contributions made by Swiber and Fund Fourteen in connection with our joint ventures.
 
 

 
Liquidity and Capital Resources

Summary

At December 31, 2009 and 2008, we had cash and cash equivalents of $27,075,059 and $45,408,378, respectively. During our offering period, our main source of cash was from financing activities and our main use of cash was in investing activities. During our operating period, our main source of cash is from operating activities and our main use of cash is in investing and financing activities.

Our liquidity will vary in the future, increasing to the extent cash flows from investments and proceeds from sale of our investments exceed expenses and decreasing as we enter into new investments, pay distributions to our members and to the extent expenses exceed cash flows from operations and proceeds from sale of our investments.

We currently have adequate cash balances and generate a sufficient amount of cash flow from operations to meet our short-term working capital requirements.  We expect to generate sufficient cash flows from operations to sustain our working capital requirements in the foreseeable future. In the event that our working capital is not adequate to fund our short-term liquidity needs, we could borrow against our revolving line of credit, with $27,640,000 available at December 31, 2009, to meet such requirements. Our revolving line of credit is discussed in further detail in “Financings and Borrowings” below.

We anticipate that our liquidity requirements for the remaining life of the fund will be financed by the expected results of operations, as well as cash received from our investments at maturity.

We anticipate being able to meet our liquidity requirements into the foreseeable future. However, our ability to generate cash in the future is subject to general economic, financial, competitive, regulatory and other factors that affect us and our lessees’ and borrowers’ businesses that are beyond our control.  See “Item 1A. Risk Factors.”


 
Cash Flows
 
The following table sets forth summary cash flow data:
 
         
For the Period from
 
         
May 25, 2007
 
         
(Commencement of
 
   
Years Ended December 31,
   
Operations) through
 
   
2009
   
2008
   
December 31, 2007
 
                   
Net cash provided by (used in):
                 
                   
 Operating activities
  $ 28,769,289     $ 13,684,207     $ 983,164  
 Investing activities
    (88,951,923 )     (159,142,765 )     (58,350,968 )
 Financing activities
    41,819,222       168,713,518       79,520,707  
 Effects of exchange rates on cash and cash equivalents
    30,093       (1,485 )     -  
                         
Net (decrease) increase in cash and cash equivalents
  $ (18,333,319 )   $ 23,253,475     $ 22,152,903  

Note: See the Consolidated Statements of Cash Flows included in “Item 8. Consolidated Financial Statements and Supplementary Data” of this Annual Report on Form 10-K for additional information.

Operating Activities
 
Cash provided by operating activities increased $15,085,082, from $13,684,207 in 2008 to $28,769,289 in 2009. The increase was primarily related to the increase in collection of approximately $6,544,000 in receivables from our finance leases, primarily from our investments in ICON Eclipse and ICON Ionian in October 2009, ICON Mynx and ICON Stealth in June 2009 and the additional leases entered into by ICON Global Crossing IV in March 2009. In addition, we collected a full year of receivables from our finance lease for ICON French Equipment II, which lease commenced in March 2008.

Investing Activities
 
Cash used in investing activities decreased $70,190,842, from $159,142,765 in 2008 to $88,951,923 in 2009.  The decrease in the use of cash for investing activities was primarily related to our increased use of borrowings for the investments we made in 2009 as compared to 2008, which resulted in less cash being expended for our investing activities.

Financing Activities
 
Cash provided by financing activities decreased $126,894,296, from $168,713,518 in 2008 to $41,819,222 in 2009.  Our offering period ended on April 30, 2009, which primarily accounts for the decrease in cash provided by financing activities. We raised additional net capital of approximately $92,911,000 during 2008 as compared to 2009, as we raised equity for a full year in 2008 as compared to four months in 2009. The cash distributions paid to our members and noncontrolling interests were higher in 2009 as we had additional members receiving distributions in 2009 and collected payments from additional lease and other financing transactions. In addition, we received $27,000,000 from our borrowings of non-recourse long-term debt in 2008, as compared to approximately $3,205,000 in 2009.



Financings and Borrowings

Non-Recourse Long-Term Debt

We had non-recourse long-term debt obligations at December 31, 2009 of $220,267,838.  Most of our non-recourse long-term debt obligations consist of notes payable in which the lender has a security interest in the equipment and an assignment of the rental payments under the lease, in which case the lender is being paid directly by the lessee. In other cases, we receive the rental payments and pay the lender. If the lessee were to default on the non-recourse long-term debt, the equipment would be returned to the lender in extinguishment of the non-recourse long-term debt.

Revolving Line of Credit, Recourse

We and certain entities managed by our Manager, Fund Eight B, Fund Nine, Fund Ten, Fund Eleven and Fund Fourteen (collectively, the “ICON Borrowers”), are parties to a Commercial Loan Agreement, as amended (the “Loan Agreement”), with CB&T. The Loan Agreement provides for a revolving line of credit of up to $30,000,000 pursuant to a senior secured revolving loan facility (the “Facility”), which is secured by all assets of the ICON Borrowers not subject to a first priority lien, as defined in the Loan Agreement. Each of the ICON Borrowers is jointly and severally liable for all amounts borrowed under the Facility. At December 31, 2009, no amounts were accrued related to our joint and several obligations under the Facility. Amounts available under the Facility are subject to a borrowing base that is determined, subject to certain limitations, on the present value of the future receivables under certain lease agreements and loans in which the ICON Borrowers have a beneficial interest.

The Facility expires on June 30, 2011 and the ICON Borrowers may request a one year extension to the revolving line of credit within 390 days of the then-current expiration date, but CB&T has no obligation to extend. The interest rate for general advances under the Facility is CB&T’s prime rate and the interest rate on up to five separate non-prime rate advances that are permitted to be made under the Facility is the rate at which U.S. dollar deposits can be acquired by CB&T in the London Interbank Eurocurrency Market plus 2.5% per year, provided that neither interest rate is permitted to be less than 4.0% per year. The interest rate at December 31, 2009 was 4.0%. In addition, the ICON Borrowers are obligated to pay a quarterly commitment fee of 0.50% on unused commitments under the Facility.

Aggregate borrowings by all ICON Borrowers under the Facility amounted to $2,360,000 at December 31, 2009.  We had no borrowings outstanding under the Facility as of such date.  The balances of $100,000 and $2,260,000 were borrowed by Fund Ten and Fund Eleven, respectively.  As of March 24, 2010, Fund Ten and Fund Eleven had outstanding borrowings under the Facility of $700,000 and $0, respectively.

Pursuant to the Loan Agreement, the ICON Borrowers are required to comply with certain covenants.  At December 31, 2009, the ICON Borrowers were in compliance with all covenants. For additional information, see Note 8 to our consolidated financial statements.

Distributions

We, at our Manager’s discretion, pay monthly distributions to our members and noncontrolling interests starting with the first month after each member’s admission and the commencement of our joint venture operations, respectively, and we expect to continue to pay such distributions until the end of our operating period. We paid distributions to our additional members of $31,554,863, $16,072,151 and $2,040,455, respectively, for the years ended December 31, 2009, 2008 and 2007.  We paid distributions to our Manager of $318,725, $162,440 and $20,561, respectively, for the years ended December 31, 2009, 2008 and 2007. We paid distributions to our noncontrolling interests of $13,458,787, $1,943,705 and $0, respectively, for the years ended December 31, 2009, 2008 and 2007.
 
 

 
Commitments and Contingencies and Off-Balance Sheet Transactions

Commitments and Contingencies

At December 31, 2009, we had non-recourse debt obligations. The lender has a security interest in the majority of the equipment relating to each non-recourse debt instrument and an assignment of the rental payments under the lease associated with the equipment.  In such cases, the lender is being paid directly by the lessee.  If the lessee defaults on the lease, the equipment would be returned to the lender in extinguishment of the non-recourse debt. At December 31, 2009, our outstanding non-recourse long-term indebtedness was $220,267,838.  We are a party to the Facility, as discussed in “Financings and Borrowings” above. We had no borrowings under the Facility at December 31, 2009.

Principal and interest maturities of our debt and related interest consisted of the following at December 31, 2009:

   
Payments Due by Period
 
         
Less Than 1
     1 - 3      4 -5  
   
Total
   
Year
   
Years
   
Years
 
Non-recourse debt
  $ 220,267,838     $ 43,305,938     $ 83,977,704     $ 92,984,196  
Non-recourse interest
    34,752,683       12,329,760       16,168,094       6,254,829  
                                 
    $ 255,020,521     $ 55,635,698     $ 100,145,798     $ 99,239,025  
 
The Participating Funds have entered into a credit support agreement, pursuant to which losses incurred by a Participating Fund with respect to any MWU subsidiary are shared among the Participating Funds in proportion to their respective capital investments. The term of the credit support agreement matches the term of the schedules to the master lease agreement. No amounts were accrued at December 31, 2009 and our Manager cannot reasonably estimate at this time the maximum potential amounts, if any, that may become payable under the credit support agreement.

In connection with the acquisitions of the Eagle Auriga, the Eagle Centaurus, the Eagle Carina and the Eagle Corona, we, through ICON Eagle Holdings, ICON Carina Holdings and ICON Corona Holdings, maintain four restricted cash accounts with Fortis. These restricted cash accounts consist of the free cash balances that result from the difference between the bareboat charter payments from AET and the repayments on the non-recourse long-term debt to Fortis and DVB. The account of ICON Eagle Holdings is cross-collateralized and the free cash remains in the restricted cash account until an aggregate amount of $500,000 is funded into the account. Thereafter, all cash in excess of $500,000 can be distributed. The free cash for ICON Carina Holdings and ICON Corona Holdings remain in their restricted cash accounts until $500,000 is funded into each account. Thereafter, all free cash in excess of $500,000 can be distributed from the respective accounts.

In connection with the acquistions of the Leighton Vessels, we, through ICON Mynx, ICON Stealth and ICON Eclipse, are required to maintain a minimum aggregate cash balance of $450,000 among the respective bank accounts of ICON Mynx, ICON Stealth and ICON Eclipse.

In connection with the acquisition of the Ocean Princess, we, through ICON Ionian, are required to maintain a minimum cash balance of $300,000 with Nordea at all times.
 
The aforementioned cash amounts are presented within other non-current assets in our consolidated balance sheets as of December 31, 2009 and 2008.
 
We have entered into certain residual sharing and remarketing agreements with various third parties.  In connection with these agreements, residual proceeds received in excess of specific amounts will be shared with these third parties based on specific formulas. The obligation related to these agreements is recorded at fair value.

 
Off-Balance Sheet Transactions

None.

Subsequent Event

On December 18, 2009, we, through our wholly-owned subsidiary, ICON Faulkner, LLC (“ICON Faulkner”), a Marshall Islands limited liability company, entered into a Memorandum of Agreement (the “Faulkner MOA”) to purchase the pipelay barge, the Leighton Faulkner, from Leighton Contractors (Asia) Limited (“Leighton Contractors”) for $20,000,000.  Simultaneously with the execution of the Faulkner MOA, ICON Faulkner entered into a bareboat charter with Leighton Contractors for a period of 96 months commencing on the closing date.  The acquisition closed on January 5, 2010.  The purchase price for the Leighton Faulkner consisted of $1,000,000 in cash and $19,000,000 in a non-recourse loan, which included $12,000,000 of senior debt pursuant to a senior facility agreement with Standard Chartered and $7,000,000 of subordinated seller’s credit.  The loan has a term of five years, with an option to extend for another three years. The interest rate has been fixed pursuant to a swap agreement.  All of Leighton Contractors’ obligations are guaranteed by its ultimate parent company, Leighton Holdings, a publicly traded company on the Australian Stock Exchange.  We paid an acquisition fee to our Manager of approximately $600,000 relating to this transaction.

Inflation and Interest Rates

The potential effects of inflation on us are difficult to predict. If the general economy experiences significant rates of inflation, it could affect us in a number of ways.  We do not currently have or expect to have rent escalation clauses tied to inflation in our leases. The anticipated residual values to be realized upon the sale or re-lease of equipment upon lease termination (and thus the overall cash flow from our leases) may increase with inflation as the cost of similar new and used equipment increases.

If interest rates increase significantly, leases already in place would generally not be affected.
 
We, like most other companies, are exposed to certain market risks, which include changes in interest rates and the demand for equipment owned by us.  We believe that our exposure to other market risks, including foreign currency exchange rate risk, commodity risk and equity price risk, are insignificant at this time to both our financial position and our results of operations.

We currently have twelve outstanding notes payable, which are our non-recourse debt obligations.  With respect to the non-recourse debt that is subject to variable interest, the interest rate for each non-recourse debt obligation is fixed pursuant to an interest rate swap to allow us to mitigate interest rate fluctuations.  As a result, we consider this a fixed position and, therefore, the conditions in the credit markets as of December 31, 2009 have not had any impact on us.  In addition, we have considered the risk of counterparty performance of our interest rate swaps by considering, among other things, the credit agency ratings of our counterparties.  Based on this assessment, we believe that the risk of counterparty non-performance is minimal.  With respect to our revolving line of credit, which is subject to a variable interest rate, we have no outstanding amounts due as of December 31, 2009.  Our Manager has evaluated the impact of the condition of the credit markets on our future cash flows and we do not expect any adverse impact on our cash flows should credit conditions in general remain the same or deteriorate further.
 
 

 
We engage in leasing and other financing transactions relating to the use of equipment by domestic and foreign lessees and borrowers outside of the United States. Although certain of our transactions are denominated in Euros and pounds sterling, substantially all of our transactions are denominated in the U.S. dollar, therefore reducing our risk to currency translation exposures. In addition, to further reduce this risk, we at times enter into currency hedges to reduce our risk to currency translation exposure on our foreign denominated transactions. To date, our exposure to exchange rate volatility has not been significant.  We have also considered the risk of counterparty performance on our foreign currency hedges by considering, among other things, the credit ratings of our counterparty. Nevertheless, there can be no assurance that currency translation exposures will not have a material impact on our financial position, results of operations or cash flow in the future.

To hedge our variable interest rate risk, we have and may in the future enter into interest rate swap contracts that will effectively convert the underlying floating interest rates to a fixed interest rate. In general, these swap agreements will reduce our interest rate risk associated with variable interest rate borrowings.  However, we will be exposed to and will manage credit risk associated with our counterparties to our swap agreements by dealing only with institutions our Manager considers financially sound.

On July 24, 2007, we entered into an interest rate swap contract with Fortis in order to fix the variable interest rate on our non-recourse debt obligation related to the Mayon Spirit and to minimize our risk for interest rate fluctuations. After giving effect to the swap agreement, we have a fixed interest rate of 6.35% per year.

On April 24, 2008, we entered into interest rate swap contracts with Fortis in order to fix the variable interest rate on our non-recourse debt obligations related to the Vroon Vessels and to minimize our risk for interest rate fluctuations. After giving effect to the swap agreements, we have a fixed interest rate of 3.93% per year.

We entered into interest rate swap contracts with Fortis and DVB in order to fix the variable interest rates on our non-recourse debt obligations related to the Eagle Auriga on November 18, 2008, the Eagle Centaurus on November 12, 2008, the Eagle Carina on December 4, 2008 and the Eagle Corona on January 5, 2009 and to minimize our risk for interest rate fluctuations. After giving effect to the swap agreements, we have fixed interest rates of 4.94%, 4.63%, 3.85% and 4.015% with respect to the non-recourse debt obligations of the Eagle Auriga, the Eagle Centaurus, the Eagle Carina and for the Eagle Corona, respectively.

On June 26, 2009, we entered into interest rate swap contracts with Fortis in order to fix the variable interest rate on our non-recourse debt obligations related to ICON Mynx and ICON Stealth and to minimize our risk for interest rate fluctuations. After giving effect to the swap agreements, we have a fixed interest rate of 7.05% per year for the Senior Tranche.

On June 30, 2009, we entered into an interest rate swap contract with Standard Chartered in order to fix the variable interest rate on our non-recourse debt obligation related to ICON Eclipse and to minimize our risk for interest rate fluctuations. After giving effect to the swap agreement, we have a fixed interest rate of 7.25% per year for the Eclipse Senior Tranche.

On October 30, 2009, we entered into an interest rate swap contract with Nordea Bank Finland Plc. in order to fix the variable interest rate on our non-recourse debt obligation related to the Ocean Princess and to minimize our risk for interest rate fluctuations. After giving effect to the swap agreement, we have a fixed interest rate of 5.54% per year. We account for this swap contract as a non-designated derivative instrument and will recognize any change in the fair value directly in earnings.

We manage our exposure to equipment and residual risk by monitoring the markets our equipment is in and maximizing remarketing proceeds through the re-lease or sale of equipment.
 



 
 
 
 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The Members
ICON Leasing Fund Twelve, LLC


We have audited the accompanying consolidated balance sheets of ICON Leasing Fund Twelve, LLC (the “Company”) as of December 31, 2009 and 2008, and the related consolidated statements of operations, changes in equity, and cash flows for each of the three years in the period ended December 31, 2009. These financial statements are the responsibility of the Company’s management. 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 audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. We were not engaged to perform an audit of the Company’s 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 Company's 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, and 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 consolidated financial position of ICON Leasing Fund Twelve, LLC at December 31, 2009 and 2008, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2009, in conformity with U.S. generally accepted accounting principles.

As discussed in Note 2 to the accompanying consolidated financial statements, the Company adopted and, for presentation and disclosure purposes, retrospectively applied the new accounting pronouncement for noncontrolling interests on January 1, 2009.

/s/ Ernst & Young, LLP

March 30, 2010
New York, New York



 
(A Delaware Limited Liability Company)
 
Consolidated Balance Sheets
 
   
Assets
 
   
   
   
December 31,
 
   
2009
   
2008
 
 Current assets:
           
 Cash and cash equivalents
  $ 27,075,059     $ 45,408,378  
 Current portion of net investment in finance leases
    18,783,013       6,175,219  
 Current portion of notes receivable
    22,786,334       17,058,414  
 Other current assets
    3,995,632       2,455,649  
 Assets held for sale, net
    8,982,354       -  
                 
 Total current assets
    81,622,392       71,097,660  
                 
 Non-current assets:
               
 Net investment in finance leases, less current portion
    137,797,207       20,723,514  
 Leased equipment at cost (less accumulated depreciation of
               
     $43,506,562 and $14,178,194, respectively)
    335,480,153       302,253,674  
 Notes receivable, less current portion
    51,122,271       35,641,940  
 Investment in joint venture
    4,609,644       5,374,899  
 Derivative instrument
    -       92,388  
 Due from Manager and affiliates
    -       641,568  
 Other non-current assets, net
    10,346,719       2,759,899  
                 
 Total non-current assets
    539,355,994       367,487,882  
                 
 Total Assets
  $ 620,978,386     $ 438,585,542  
                 
Liabilities and Equity
 
                 
 Current liabilities:
               
 Current portion of non-recourse long-term debt
  $ 43,305,938     $ 29,073,897  
 Derivative instruments
    4,779,552       5,431,968  
 Deferred revenue
    6,576,971       4,608,711  
 Due to Manager and affiliates
    482,301       330,980  
 Accrued expenses and other current liabilities
    3,154,453       2,046,343  
                 
 Total current liabilities
    58,299,215       41,491,899  
                 
 Non-current liabilities:
               
 Non-recourse long-term debt, less current portion
    176,961,900       133,501,171  
 Other non-current liabilities
    44,082,046       -  
                 
 Total non-current liabilities
    221,043,946       133,501,171  
                 
 Total Liabilities
    279,343,161       174,993,070  
                 
 Commitments and contingencies (Note 16)
               
                 
 Equity:
               
 Members' Equity:
               
Additional Members
    278,405,366       229,360,768  
Manager
    (301,542 )     (121,406 )
Accumulated other comprehensive loss
    (5,024,109 )     (5,751,632 )
                 
 Total Members' Equity
    273,079,715       223,487,730  
                 
 Noncontrolling Interests
    68,555,510       40,104,742  
                 
 Total Equity
    341,635,225       263,592,472  
                 
 Total Liabilities and Equity
  $ 620,978,386     $ 438,585,542  


See accompanying notes to consolidated financial statements.

 
 
(A Delaware Limited Liability Company)
 
Consolidated Statements of Operations
 
   
               
For the Period from
 
               
May 25, 2007
 
               
(Commencement of
 
   
Years Ended December 31,
   
Operations) through
 
   
2009
   
2008
   
December 31, 2007
 
                   
 Revenue:
                 
 Rental income
  $ 59,604,472     $ 22,940,645     $ 3,745,463  
 Finance income
    7,246,926       3,695,178       762,779  
 Income from investment in joint venture
    573,040       325,235       -  
 Interest and other income
    11,066,780       2,385,444       322,073  
                         
 Total revenue
    78,491,218       29,346,502       4,830,315  
                         
 Expenses:
                       
 Management fees - Manager
    3,390,239       1,474,993       178,289  
 Administrative expense reimbursements - Manager
    3,594,400       2,705,118       1,346,866  
 General and administrative
    2,276,211       1,350,134       161,497  
 Interest
    11,616,105       3,086,275       704,418  
 Depreciation and amortization
    34,507,641       12,875,095       1,860,863  
 Bad debt expense
    572,721       -       -  
 Impairment loss
    3,429,316       -       -  
 Loss on financial instruments
    25,642       55,495       25,024  
                         
 Total expenses
    59,412,275       21,547,110       4,276,957  
                         
 Net income
    19,078,943       7,799,392       553,358  
                         
 Less: Net income attributable to noncontrolling interests
    (5,220,027 )     (1,856,812 )     (436,506 )
                         
 Net income attributable to Fund Twelve
  $ 13,858,916     $ 5,942,580     $ 116,852  
                         
 Net income attributable to Fund Twelve allocable to:
                       
 Additional Members
  $ 13,720,327     $ 5,883,154     $ 115,683  
 Manager
    138,589       59,426       1,169  
                         
    $ 13,858,916     $ 5,942,580     $ 116,852  
                         
 Weighted average number of additional shares of
                       
 limited liability company interests outstanding
    333,979       181,777       47,186  
                         
 Net income attributable to Fund Twelve per weighted
                       
 average additional share of limited liability company
                       
 interests
  $ 41.08     $ 32.36     $ 2.45  

 

See accompanying notes to consolidated financial statements.


 
(A Delaware Limited Liability Company)
 
Consolidated Statements of Changes in Equity
 
   
               
   
Members' Equity
             
   
 
   
 
         
 
   
 
   
 
   
 
 
   
Additional
Shares of
Limited Liability
Company Interests
   
Additional
Members
   
Manager
   
Accumulated
Other
Comprehensive
Loss
   
Total
Members' Equity
   
Noncontrolling
Interests
   
Total
Equity
 
 Balance, December 31, 2006
    1     $ 1,000     $ 1,000     $ -     $ 2,000     $ -     $ 2,000  
                                                         
Comprehensive income:
                                                       
 Net income
    -       115,683       1,169       -       116,852       436,506       553,358  
 Change in valuation of
                                                       
interest rate swap contracts
    -       -       -       (349,950 )     (349,950 )     (336,226 )     (686,176 )
            Total comprehensive loss
                                    (233,098 )     100,280       (132,818 )
 Proceeds from issuance of additional shares
                                                       
 of limited liability company interests
    93,805       93,670,295       -       -       93,670,295       -       93,670,295  
 Shares of limited liability company interests repurchased
    (1 )     (1,000 )                     (1,000 )     -       (1,000 )
 Sales and offering expenses
    -       (12,087,572 )     -       -       (12,087,572 )     -       (12,087,572 )
 Cash distributions
    -       (2,040,455 )     (20,561 )     -       (2,061,016 )     -       (2,061,016 )
 Investment in joint venture by noncontrolling interest
    -       -       -       -       -       10,762,478       10,762,478  
 
Balance, December 31, 2007
    93,805     $ 79,657,951     $ (18,392 )   $ (349,950 )   $ 79,289,609     $ 10,862,758     $ 90,152,367  
                                                         
Comprehensive income:
                                                       
 Net income
    -       5,883,154       59,426       -       5,942,580       1,856,812       7,799,392  
 Change in valuation of
                                                       
derivative instruments
    -                       (4,455,706 )     (4,455,706 )     (279,661 )     (4,735,367 )
 Currency translation adjustment
    -                       (945,976 )     (945,976 )     -       (945,976 )
            Total comprehensive income
                                    540,898       1,577,151       2,118,049  
 Proceeds from issuance of additional shares
                                                       
 of limited liability company interests
    180,184       179,455,836       -       -       179,455,836       -       179,455,836  
 Sales and offering expenses
    -       (19,564,022 )     -