December 8, 2004
Mail Stop 0510
ATEL Capital Equipment Fund XI, LLC
600 California Street, 6th Floor
San Francisco, CA 94108
Attention: Dean L. Cash
Re: ATEL Capital Equipment Fund XI, LLC
Form S-1, filed November 8, 2004
File No. 333-120276
Dear Mr. Cash:
We have reviewed your filing and have the following
comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
General
1. Please provide printed amendments supplementally with your next
filing so that we can review the graphics.
2. Throughout your prospectus you identify risks related to an
investment in the units that are not disclosed in the risk factors
section. If these risks are material to an investment in the
units,
they should be set forth in the risk factors section. Please
revise
accordingly.
Front Cover Page of Registration Statement
3. We note that you state that your SIC code number is 7394. It
appears from our records that your SIC code number is 7359.
Please
ensure that all future filings are filed under the correct SIC
code
number.
Cover Page of Prospectus
4. Please re-order your list of risk factors to present them in
order
of their materiality to an investor. For example, the seventh
risk
factor should be at the top of your list.
5. Please revise your third risk factor to disclose the actual
risk
to an investor, namely the risk that an investor cannot evaluate
the
risks of, or potential returns from, any of your investments. In
addition, please revise this risk factor to clarify that you have
not
identified any of your equipment investments or lessees.
6. We note that your fourth risk factor bundles two risks
together.
Please assign each risk its own bullet point and disclose the
actual
risk to an investor.
7. Please revise your fifth risk factor to disclose the actual
risk
to an investor, namely the risk that you may have losses if your
revenues are insufficient to pay your debt service.
8. Please revise your seventh risk factor to clarify that all
distributions may be a return of capital.
9. We note that your eighth risk factor does not appear in the
risk
factors section under its own subheading. Please either delete
this
risk or revise your risk factors section to include this risk
under
its own subheading.
10. We note your disclosure on page 46 regarding the difficulties
in
the equipment leasing market during the past three years. This
would
appear to be a material risk that should be disclosed on your
cover
page. Please revise accordingly.
11. Please disclose the termination date of your offering.
12. Please disclose that ATEL Securities Corporation is acting as
the
dealer manager for the group of participating broker-dealers and
that
it is an affiliate.
13. Your cover page should be followed immediately by a detailed
table of contents, the summary and the risk factors. Please move
your disclaimer regarding forecasts elsewhere in your prospectus.
Table of Contents
14. Your table of contents should list each risk factor, not
simply
the groups of risk factors. In addition, please revise "Risk
Factors" so that it describes each risk under a separate caption.
Summary of the Offering, page 6
General
15. Please provide a brief summary of the maximum amount of
borrowing
that you expect to use and whether this amount will change
depending
on the amount you actually raise.
16. Please provide a cross-reference to the glossary.
Management, page 6
17. Please disclose that you will have no employees and that the
manager will be making all investment decisions for you.
Risk Factors, page 6
18. We note our comments above regarding the risk factors set
forth
on the cover page of your prospectus. The summary risk factors
should be in the same order as these risk factors. In addition,
the
summary risk factors should not merely repeat the risks presented
on
the cover page of your prospectus.
Who Should Invest, page 6
19. Please provide a cross-reference to your disclosure regarding
the
suitability requirements of individual states.
Summary of the Operating Agreement - Transferability of Units,
page 8
20. Please disclose that the manager intends to take steps to
assure
that no public trading market develops for the units.
Risk Factors, page 9
General
21. We note that in your introductory paragraph you state that
there
may be additional risks discussed elsewhere in your prospectus.
You
must disclose in this section all risks that you believe are
material
at this time. Please delete this language from your introductory
paragraph.
22. Please move your subsection entitled "Risks Inherent in the
Structure of the Fund" so that it appears first. In addition,
please
re-order your risk factors so that they appear in the same order
as
the risk factors set forth on the cover page of your prospectus.
23. Many subheadings in this section are too vague and generic to
adequately describe the risk that follows. For example, on page
10,
you use the subheading "The equipment leasing industry is
competitive." Since all companies operating in a free market
economy
are subject to competition, this subheading is not descriptive.
In
addition, certain subheadings merely state a fact about your
business, such as "Demand for equipment fluctuates," "The Manager
is
subject to certain potential conflicts of interest," "The Manager
will receive substantial compensation" and "There are significant
limitations on the transferability of Units." Please revise your
risk factor subheadings to reflect the risk that follows. As a
general rule, your revised subheadings should work only in your
prospectus. If they are readily transferable to other companies`
offering documents, they are likely too generic. See Item 503(c)
of
Regulation S-K.
24. It appears that you are including more than one risk under one
subheading. Examples of "bundled" risk factors include "The
success
of the Fund will be subject to risks inherent in the equipment
leasing business," "The Fund may be harmed if a lessee defaults on
its lease," "The Fund may lease equipment outside of the United
States" and "Investors will have limited voting rights and must
rely
on management for the success of the Fund." In order to give
prominence to each risk factor, we suggest that you assign each
risk
its own descriptive subheading. See Item 503(c) of Regulation S-
K.
25. In each risk factor, get to the risk as quickly as possible
and
provide only enough detail to place the risk in context. In some
of
your risk factors, the actual risk you are trying to convey does
not
stand out from the extensive detail you provide. For example,
what
specifically is the risk in your risk factor under "The Fund may
lease equipment outside of the United States." This risk factor
explains in detail several actions that you will take but it does
not
address the actual risk clearly. In addition, under many
subheadings
your detail includes the benefits of a particular course of
action,
the actions that you will take to mitigate the risk or disclaimers
regarding your inability to assure, control or guarantee outcomes.
This detail does not address the risk described under your
subheading. Please revise your risk factors accordingly.
The Fund will be subject to the risk of claims..., page 11
26. Please describe with greater specificity the duties that could
be
imposed on you and please provide specific examples. In addition,
please disclose the effect that the imposition of these duties has
had on the prior programs, including the amount of the liabilities
imposed as a result thereof, so that an investor can assess the
magnitude of the risk.
The Fund has not identified all of its equipment and lessees, page
12
27. Please revise your disclosure under this subheading to clarify
that you have not identified any of your equipment investments or
lessees.
A substantial portion of Fund distributions from lease
revenues...,
page 13
28. Please revise your disclosure under this subheading to clarify
that all distributions may be a return of capital.
29. Your disclosure under this subheading discusses the tax
treatment
of distributions rather than the risk described in the subheading,
namely that investors may not receive any investment income.
Please
revise accordingly.
Risks Relating to Tax Matters, page 14
30. Please provide cross-references to your fuller discussions set
forth under "Federal Income Tax Consequences." See Item 7.B. of
Industry Guide 5.
Risks Related to ERISA Matters, page 15
31. Your disclosure under this subheading appears to repeat
disclosure that is set forth under the heading "ERISA
Considerations," rather than presenting reasons why your offering
is
risky or speculative to an investor. Please revise accordingly.
Who Should Invest, page 15
32. Please move your disclosure under "State Requirements"
beginning
on page 76 to this section to facilitate an investor`s
understanding
of your suitability standards.
Estimated Use of Proceeds, page 16
33. We note your statement that the figures set forth in this
section
are estimates and should not be relied upon. Please identify the
factors that would result in a material change to these figures.
34. Please arrange your narrative discussion to follow the line
items
set forth in your table. In addition, we note that your narrative
discussion is not consistent with the line items set forth in your
table. For example, the narrative disclosure of offering and
organizational expenses includes items that are not included in
the
related line item in your table. Please revise accordingly.
35. We note your disclosure regarding the purchase of units by the
manager, its affiliates and participating broker-dealers. Please
identify the conditions that must be satisfied to transfer these
units. In addition, please consider moving this disclosure to the
"Plan of Distribution" section where it is also discussed.
36. Please disclose the maximum amount that can be placed into
capital reserves and the factors that would affect this amount.
Management Compensation, page 18
37. We note that the manager will have a carried interest of 7.5%.
Please provide the disclosure required by Item 4.D. of Industry
Guide
5.
Investment Objectives and Policies, page 22
General Policies, page 22
38. We note that you state that your portfolio will include some
high-technology equipment. Please disclose the anticipated
percentage that this equipment will represent of your total
portfolio.
Types of Equipment, page 24
39. We note the types of equipment that you may purchase include
aircraft, locomotives and manufacturing equipment. We also note
that
in the Form 10-K for the year ended December 31, 2003 of your
affiliate, ATEL Capital Equipment Fund VIII, LLC, your affiliate
recorded impairment losses because there was continued decline in
the
markets for these types of equipment. Please explain whether the
market for these types of equipment remains down, is declining
further or is improving. In addition, if this market remains down
or
is declining further, please explain why you would invest in these
types of equipment.
40. Please disclose whether a category of equipment is low-
technology
or high-technology, as readers may not be familiar with the
distinction.
Aircraft, page 25
41. Please explain why you place limits on your investments in
aircraft.
Description of Leases, page 32
42. Please describe under what circumstances you would agree to be
responsible for the "net lease" obligations. In addition, please
disclose the estimated costs of these obligations as a percentage
of
the equipment`s cost.
43. We note that you have contracts and/or arrangements with
governmental entities. Please advise us as to whether you have
considered Item 101(c)(ix) of Regulation S-K.
Growth Capital Financing, page 33
44. We note your disclosure regarding your determination to not be
deemed an investment company for purposes of the Investment
Company
Act of 1940. We also note that you may enter into transactions in
which you receive a note from the lessee. Please advise us as to
whether you have considered these notes, which will be deemed to
be
securities, for purposes of determining whether you will be an
investment company under the Investment Company Act of 1940.
Leasing Industry and Competition, page 35
45. Please disclose the principal methods of competition in your
industry. In addition, please discuss your competition`s
advantages
over you and how this affects your competitive position within
your
industry. See Item 101(c)(x) of Regulation S-K.
Conflicts of Interest, page 37
46. With respect to each potential conflict of interest discussed
in
this section, please describe the methods by which you, the
manager
and its affiliates will minimize the potential conflicts. In
addition, please describe the benefits and detriments to each
party
that is subject to a conflict. See Release No. 33-6900.
47. We note that the manager, its affiliates and the participating
broker-dealers may purchase units at a reduced price in relation
to
other investors. It would appear that these purchasers would
achieve
a full return of capital earlier than other investors. Please
discuss the conflicts of interest that may arise as a result of
this
disparity.
Fiduciary Duty of the Manager, page 39
48. Please describe with greater specificity the nature of the
manager`s fiduciary duties to members.
49. Please advise us as to whether your operating agreement
modifies
any state-law fiduciary duty standards. To the extent it does,
please disclose each modification, the reasons for this
modification
and the benefits and detriments to both you and the manager as a
result of this modification.
Management, page 40
The Manager, page 40
50. Please disclose that you will not have any employees and that,
if
true, the management listed will be the individuals responsible
for
making investment decisions for you.
51. We note your disclosure on page 37 regarding the manager`s
contingent liability for the prior programs. Please advise us as
to
whether you have considered Item 9.D. of Industry Guide 5.
Management Compensation, page 43
52. Please consider replacing the disclosure under this subheading
with a cross-reference to the "Management Compensation" section.
Management of the Fund`s Operations and Administration, page 43
53. Please identify the reasons why the manager would permit a
third
party to manage your equipment. In addition, please disclose the
fees that would be paid to such third party, in particular whether
these fees would be in addition to or subtracted from the asset
management fee paid to the manager.
Prior Performance Summary, page 44
54. Please provide the disclosure required by Item 8.A. of
Industry
Guide 5 with respect to the prior private programs.
55. Please describe with greater specificity the difficulties
experienced by the equipment leasing market during the past three
years.
56. Please disclose the anticipated termination date of the tenth
prior program`s offering.
57. We note your disclosure regarding lessee defaults in
connection
with the prior programs. Please expand your disclosure to include
the defaults rates.
Federal Income Tax Consequences, page 51
58. This section should summarize the opinion of counsel that is
filed as an exhibit to your registration statement, as opposed to
counsel`s opinion that the summary provided is accurate. Please
revise accordingly. See Item 12.A. of Industry Guide 5.
59. This section should summarize all material Federal income tax
aspects of your offering. Please revise your introductory
paragraph
accordingly.
Summary of the Operating Agreement, page 68
General, page 68
60. This section should summarize the material terms of your
operating agreement. Please revise your introductory paragraphs
accordingly.
61. Please provide a cross-reference in the second paragraph of
your
introduction with respect to those provisions of your operating
agreement that are summarized elsewhere in your prospectus.
62. Please discuss the removal, withdrawal and replacement of the
manager, as well as any limitations on the authority of the
manager.
Voting Rights of Members, page 69
63. We note that certain voting rights of the members are not
described under this subheading. For example, members have the
right
to approve modifications to investment objectives and policies.
Please revise accordingly.
Repurchase of Units, page 73
64. Please provide the disclosure required by Item 17 of Industry
Guide 5.
Plan of Distribution, page 74
65. Please clarify whether units purchased by participating
broker-
dealers will count towards the minimum investment amount.
Reports to Holders, page 77
66. We note that this section does not reflect your undertakings
set
forth in Part II of your registration statement. For example, the
delivery time with respect to your quarterly reports is different
than that which is provided in your undertakings. In addition,
deliveries that you have undertaken to provide to members are not
disclosed in this section. Please revise accordingly. See Item
15
of Industry Guide 15.
Supplemental Sales Material, page 78
67. As you know, any supplemental sales materials to be used in
connection with your offering are required to be submitted to us
pursuant to the requirements of Item 19.D. of Industry Guide 5 and
will be subject to our review and comment. In addition to the
requirement that the materials set forth a balanced presentation
of
risk and reward, please be advised that these materials should not
contain any information or disclosure that is inconsistent with or
not also provided in your prospectus.
Where You Can Find Additional Information, page 79
68. Please provide the disclosure required by Item 101(e) of
Regulation S-K.
Prior Performance Information, page A-1
69. Please provide the disclosure required by the instructions to
Appendix II to Industry Guide 5.
70. Please update your disclosure in this section and throughout
your
prospectus to include financial information through September 30,
2004.
Table II, page A-6
71. Please expand your disclosure to identify and quantify the
types
of costs included in the subheading "Other operating expenses."
72. Please advise us as to the method of calculating the line item
"Dollar amount of cumulative cash generated from operations before
deducting payments to the General Partner / Managing Member."
73. We note that the sum of the total amount paid from proceeds
and
the total amount paid from operations does not equal the total
amount
paid as broken down by year. Please explain this discrepancy.
Table V, page A-13
74. We note that Table V and Table VI are not in the correct
order.
Please revise accordingly. See Appendix II to Industry Guide 5.
Item 13. Other Expenses of Issuance and Distribution, page II-1
75. Please expand your disclosure to also include issuance and
distribution expenses, assuming that the minimum number of units
are
sold.
Item 14. Indemnification of Directors and Officers, page II-1
76. Please describe with greater specificity the indemnification
provided by you to the manager and its affiliates, including any
exceptions and/or limits. In this regard, we note your disclosure
on
page 73 of your prospectus.
Item 16. Exhibits and Financial Statement Schedules, page II-2
77. Please file as promptly as possible all exhibits required by
the
exhibit table provided in Item 601(a) of Regulation S-K, in
particular Exhibit 8.1. These exhibits and any related disclosure
are subject to review and you should allow a reasonable time for
our
review prior to requesting acceleration.
78. Please file as an exhibit your certificate of formation or
explain why it has not been filed as an exhibit.
79. Please file as an exhibit your form of subscription agreement
or
explain why it has not been filed as an exhibit.
Item 17. Undertakings, page II-2
80. Please provide the undertakings required by Item 20.D. of
Industry Guide 5.
Exhibit 23.1
81. Please update Ernst and Young LLP`s consent to include the
complete file number of your registration statement.
* * *
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested supplemental information.
Detailed cover letters greatly facilitate our review. Please
understand that we may have additional comments after reviewing
your
amendment and responses to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the company and its management are in
possession of all facts relating to a company`s disclosure, they
are
responsible for the accuracy and adequacy of the disclosures they
have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert staff comments and the declaration of
effectiveness as a defense in any proceeding initiated by the
Commission or any person under the federal securities laws of the
United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in connection with our review of
your
filing or in response to our comments on your filing.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
You may contact Meagan Caldwell at (202) 824-5578 or Rufus
Decker at (202) 942-1774 if you have questions regarding comments
on
the financial statements and related matters. Please contact
Andrew
Schoeffler at (202) 824-5612 or, in his absence, Mark Webb at
(202)
942-1874 or the undersigned at (202) 942-1950 with any other
questions.
Sincerely,
Pamela A. Long
Assistant Director
cc: Paul J. Derenthal, Esq.
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Dean L. Cash
ATEL Capital Equipment Fund XI, LLC
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0404
DIVISION OF
CORPORATION FINANCE