SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) Securities
Exchange Act of 1934
Filed by the Registrant [ ]
Filed by a party other than the Registrant [X]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only
(as permitted by Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting material pursuant to Rule 14a-11(c) or Rule 14a-12
SECURED INVESTMENT RESOURCES FUND, L.P.
(Name of Registrant as Specified in Its Charter)
Everest Properties II, LLC
Millenium Management, LLC
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of filing fee (Check the appropriate box):
[X] No fee required
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transactions applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined.)
(4) Proposed maximum aggregate value of transaction:
(5) Total Fee paid:
[ ] Fee paid previously with preliminary materials
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount previously paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing party:
(4) Date filed:
Everest Properties II, LLC
Millenium Management, LLC
155 N. Lake Avenue, Suite 1000
Pasadena, CA 91101
March [_], 2004
Dear Limited Partner:
Enclosed is a Solicitation of Consents seeking the approval by written
consent (the "Consents") of the limited partners (the "Limited Partners") of
Secured Investment Resources Fund, L.P., a Kansas limited partnership (the
"Partnership"), to remove all current general partners and to continue the
Partnership and elect Millenium Management, LLC, a California limited liability
company ("Millenium") as the new general partner of the Partnership. According
to the last filing made with the Securities and Exchange Commission ("SEC") by
the Partnership, James R. Hoyt is the Individual General Partner, and Secured
Investment Resources, Inc., a Kansas corporation, is the Corporate General
Partner, of the Partnership.
The goal of Millenium in soliciting the Consents is to elect Millenium as
the new general partner of the Partnership so that Millenium can:
o Send Financial Reports to Limited Partners: Upon becoming the new
general partner, Millenium will send you detailed financial reports
about Partnership assets and operations which the current general
partners have continuously withheld.
o File Required Reports with the SEC: Millenium will file all the
required financial reports with the SEC. The current general partners
have not filed the required financial reports with the SEC for periods
after 1998. We believe the Partnership is in serious violation of
securities laws.
o Investigate Claims: Although Millenium is currently not aware of any
existing claims against the general partners, upon becoming your new
general partner Millenium will investigate to determine whether or not
there are any claims, such as claims for breach of fiduciary duty or
breach of the Partnership Agreement, that should be brought against
the Partnership's current general partners.
o Reduce Management Fees and Expenses: Millenium will use its best
efforts to reduce the property management and other fees paid by
current general partners and its affiliates.
o Liquidate The Partnership: Once Millenium has been able to take over
the Partnership and analyze its situation, if Millenium deems it to be
in the best interest of the Limited Partners, it will consider selling
the properties and liquidating the Partnership (the Partnership
Agreement currently provides that the Partnership does not have to be
liquidated until the year 2044).
You may have the following questions:
Q: What is Millenium Asking Me to Vote Upon?
A: Millenium is asking for your consent (1) to remove all of the current general
partners of the Partnership, believed to be James R. Hoyt and Secured Investment
Resources, Inc.; and (2) elect Millenium Management, LLC, as the general partner
of the Partnership.
Q: Who is Millenium?
A: Millenium is an affiliate of Everest Management, LLC, which owns limited
partner units in the Partnership. Both Millenium and Everest Management are
managed by Everest Properties II, LLC ("Everest"). Everest's management and its
affiliates have substantial experience in investing in and managing limited
partnerships. Everest, through its affiliated investment funds, has invested
over Two Hundred Million Dollars in over four hundred partnership since 1996.
Everest's affiliates own and/or operate over 3700 apartment units owned by
various limited partnerships in fourteen states.
Q: Why Should I Vote to Remove the Current General Partners?
A: The current general partners have not sent any financial reports to you or
filed the required financial reports with the SEC for periods after 1998. By
their omissions, they have not only breached the Restated Certificate and
Agreement of Limited Partnership (the "Partnership Agreement"), but we believe
they have violated securities laws. The limited partners have a right to know
the true income and expenses of the properties in which they have invested their
hard-earned money. Without regular financial reporting, audits and financial
statement certification, there is no safeguard against potential abuses or
improprieties by the general partners.
Q: What Do I Need to Do Now?
A: After carefully reading and considering the information contained in this
document, we are asking that you please complete, sign and date the enclosed
GREEN consent form by marking FOR each proposal herein and mailing it to us in
the self-addressed envelope provided. Hopefully, after Millenium is elected as
the general partner of the Partnership, we can work together to protect the
remaining value of your investment in the Partnership.
We urge you to carefully read the enclosed Consent Solicitation Statement
in order to vote your interests. YOUR VOTE IS IMPORTANT. FAILURE TO VOTE,
ABSTENTIONS AND BROKER NON-VOTES WILL HAVE THE SAME EFFECT AS A VOTE AGAINST THE
PROPOSALS. Again, to be sure your vote is represented, please sign, date and
return the enclosed GREEN Consent of Limited Partner form as promptly as
possible in the enclosed, prepaid envelope. If you have any questions, please do
not hesitate to contact Ms. Stacey McClain at 626-585-5920.
Very truly yours,
Millenium Management, LLC
SOLICITATION OF CONSENTS
of
LIMITED PARTNERS
of
Secured Investment Resources Fund, L.P.
by
Everest Properties II, LLC
and
Millenium Management, LLC
March [_], 2004
CONSENT SOLICITATION STATEMENT
Everest Properties II, LLC ("Everest") and Millenium Management, LLC, a
California limited liability company ("Millenium") are seeking the approval by
written consent (the "Consents") of the limited partners (the "Limited
Partners") of Secured Investment Resources Fund, L.P., a Kansas limited
partnership (the "Partnership"), to remove all of the current general partners,
believed to be James R. Hoyt ("Hoyt") and Secured Investment Resources, Inc.
("SIRI"). Everest and Millenium are also seeking your approval to continue the
Partnership with Millenium as the new general partner of the Partnership. The
election of Millenium as a general partner is conditioned upon the approval of
the removal of all of the current general partners.
In the event that the current general partners are removed and the Limited
Partners do not approve continuing the Partnership with Millenium as the new
general partner, Millenium will initiate an additional consent solicitation to
continue the Partnership with a different, new general partner. In the event
that the Limited Partners do not elect to continue the Partnership with a new
general partner after the removal of the current general partners, the
Partnership will be dissolved and the assets of the Partnership will be
liquidated pursuant to the Partnership Agreement.
This Consent Solicitation Statement and the accompanying GREEN Consent of
Limited Partners form are first being mailed to Limited Partners on or about
March [_], 2004. Limited Partners who are record owners of Limited Partnership
Interests as of March 15, 2004 (the "Record Date") shall be sent this Consent
Solicitation Statement.
The reasons for Millenium's belief that it is important to replace the
current general partners are set further in the introductory letter.
Considerations other than those identified, such as investment and tax
considerations, exist which should also be weighed in replacing the current
general partners with Millenium. You are advised to read this entire Consent
Solicitation Statement carefully and to consult with your investment and tax
advisors before making a decision whether or not to consent. YOUR VOTE IS
IMPORTANT. FAILURE TO VOTE WILL HAVE THE SAME EFFECT AS A VOTE AGAINST THE
PROPOSALS.
The Consents are solicited upon the terms and subject to the conditions of
this Consent Solicitation Statement and the accompanying form of Consent.
Removal of the current general partners and the election to continue the
Partnership with Millenium as the new general partner requires the consent of
the record holders of a majority of the outstanding limited partnership
interests ("Limited Partnership Interests") of the Limited Partners (the
"Required Consents"). If Millenium receives the Required Consents, it will
become the new general partner, as provided in the Partnership Agreement.
Section 16.2 of the Partnership Agreement provides that the vote of Limited
Partners owning a majority of the Limited Partnership Interests may remove a
general partner and elect a successor general partner. Section 20.1.1 provides
that the newly elected general partner may elect to continue the Partnership if
an event of dissolution occurs by the removal of a general partner.
Under the Partnership Agreement and Kansas law, Limited Partners do not
have dissenters' rights of appraisal in connection with these Proposals.
THIS SOLICITATION IS BEING MADE BY MILLENIUM AND EVEREST AND NOT ON BEHALF
OF THE PARTNERSHIP. CONSENTS SHOULD BE DELIVERED TO MILLENIUM AND SHOULD NOT BE
SENT TO THE PARTNERSHIP.
THE SECURITIES AND EXCHANGE COMMISSION HAS NOT PASSED UPON THE ACCURACY OR
ADEQUACY OF THE INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO
THE CONTRARY IS UNLAWFUL.
THIS SOLICITATION OF CONSENTS EXPIRES NO LATER THAN 11:59 P.M. PACIFIC TIME
ON [_________], 2004, UNLESS EXTENDED.
AVAILABLE INFORMATION
The Partnership is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and is
required thereby to file reports, consent solicitation statements and other
information with the SEC. However, the Partnership has not filed any of the
aforementioned documents with the SEC for periods after 1998. Such reports,
consent solicitation statements and other information filed with the SEC can be
inspected and copied at the public reference facilities maintained by the SEC at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. In addition, the SEC
maintains a site on the World Wide Web portion of the Internet that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the SEC. The address of such site is
http://www.sec.gov.
INFORMATION CONCERNING MILLENIUM AND EVEREST
Millenium is a California limited liability company that was formed in 1998
for the purpose of seeking to become the general partner of other real estate
limited partnerships and to invest in limited partnerships. Millenium and
Everest do not own any Limited Partnership Interests, but its affiliate, Everest
Management, LLC, owns 3.8% of the Limited Partnership Interests outstanding. The
principal office of Millenium is 155 N. Lake Avenue, Suite 1000, Pasadena, CA
91101; telephone (626) 585-5920.
Both Everest Management and Millenium are managed by Everest. Everest,
through affiliated investment funds, has invested over two hundred million
dollars in over four hundred partnership since 1996. Everest's affiliates own
and/or operate over 3700 apartment units owned by various limited partnerships
in fourteen states. Everest and Millenium have the same officers. They do not
own any Limited Partnership Interests. The following are the resumes of
Everest's and Millenium's officers. The business address of each of the officers
is 155 N. Lake Avenue, Suite 1000, Pasadena, CA 91101.
W. Robert Kohorst. Mr. Kohorst has been the President of Everest since
1996. He is a lawyer by profession. From 1984 through 1990, Mr. Kohorst was the
President of the Private Placement Group for Public Storage, Inc., a national
U.S. real estate syndicator. Mr. Kohorst's responsibilities included all
structuring, marketing, investor services and accounting services for private
placement syndications for Public Storage, Inc., and its affiliates. Upon
leaving Public Storage, Inc. in 1990, Mr. Kohorst was the Chief Executive
Officer and principal of two businesses, Tiger Shark Golf, Inc., a golf
equipment manufacturer, and Masquerade International, Inc., a manufacturer of
costumes. In 1991 Mr. Kohorst co-founded KH Financial, Inc., which has been
engaged in the acquisition of general partner interests, real estate companies
and related assets. Mr. Kohorst has been the President of KH Financial, Inc.
from its inception to the present. Mr. Kohorst holds a Juris Doctor from the
University of Michigan and a Bachelor of Science degree in accounting from the
University of Dayton.
David I. Lesser. Mr. Lesser has been the Executive Vice President of
Everest since 1996. He is a lawyer by profession. From 1979 through 1986, Mr.
Lesser practiced corporate and real estate law with Kadison, Pfaelzer, Woodard,
Quinn & Rossi and Johnsen, Manfredi & Thorpe, two prominent Los Angeles law
firms. From 1986 through 1995, Mr. Lesser was a principal and member of Feder,
Goodman & Schwartz and its predecessor firm, co-managing the firm's corporate
and real estate practice. Between 1990 and 1992, Mr. Lesser was counsel to
Howard, Rice, Nemerovski, Robertson, Canady & Falk. Mr. Lesser is also a Vice
President of KH Financial, Inc. Mr. Lesser holds a Juris Doctor from Columbia
University and a Bachelor of Arts degree from the University of Rochester.
Christopher K. Davis. Mr. Davis is a Vice President and the General Counsel
of Everest, which he joined in 1998. He is a lawyer by profession. From 1991 to
1995, he practiced securities and corporate law with Gibson, Dunn & Crutcher, a
prominent national law firm headquartered in Los Angeles. From 1995 through
1997, he served as Senior Staff Counsel and then Director of Corporate Legal of
Pinkerton's, Inc., a worldwide provider of security, investigation and related
services. At Pinkerton, Mr. Davis was responsible for directing the corporate
section of the legal department. Mr. Davis holds a Juris Doctor from Harvard Law
School and a Bachelor of Science degree in Business Administration from the
University of California, Berkeley.
Peter J. Wilkinson. Mr. Wilkinson is a Vice President and the Chief
Financial Officer of Everest, which he joined in 1996. He is an accountant by
profession. From 1981 through 1987, he worked for Deloitte Haskins and Sells and
Coopers and Lybrand in London and Sydney in their audit divisions, gaining
significant experience in a variety of industry segments. From 1987 to 1990, he
was the company secretary and controller of Gresham Partners, an Australian
investment bank where, in addition to being responsible for all financial, tax
and administrative matters, he was involved with analyzing leveraged buyout,
property finance and business acquisitions. Mr. Wilkinson joined BankAmerica in
the United States and from 1991 to 1996 held a number of positions, culminating
in being the Division Finance Officer for the Corporate Trust and Mortgage and
Asset Backed divisions. In this capacity, he was responsible for presentation of
all financial information and financial due diligence during their divestiture.
Mr. Wilkinson holds a Bachelor of Science degree from Nottingham University and
is an English chartered accountant.
INFORMATION CONCERNING THE PARTNERSHIP
Since the current general partners have not filed any of the required
financial reports with the SEC for periods after 1998, there is little
information available on the Partnership. Information contained in this section
is based upon documents and reports publicly filed by the Partnership, including
the Annual Report on Form 10-K for the fiscal year ended December 31, 1998 (the
"Form 10-K"). Although Millenium has no information that any statements
contained in this section are untrue, the Millenium has not independently
investigated the accuracy of statements, and takes no responsibility for the
accuracy, inaccuracy, completeness or incompleteness of any of the information
contained in the Form 10-K or for the failure by the Partnership to disclose
events which may have occurred and may affect the significance or accuracy of
any such information.
Secured Investment Resources Fund, L.P. ("Partnership") is a Kansas limited
partnership formed pursuant to the Kansas Revised Uniform Limited Partnership
Act on March 30, 1984. James R. Hoyt is the Individual General Partner and
Secured Investment Resources, Inc., a Kansas corporation, is the corporate
general partner. The Partnership was formed with the intent to engage in the
business of acquiring, improving, developing, operating and holding for
investment, income producing properties with the objectives of (i) preserving
and protecting the Partnership's capital; (ii) providing capital gains through
potential appreciation; (iii) providing quarterly "tax sheltered" cash
distributions from operations; (iv) generating tax losses ion excess of tax
shelter distributions, which may be used to offset taxable income from other
sources; and (v) increasing equity through the reduction of mortgage loans on
Partnership properties. The term of the partnership is sixty (60) years from the
date of the Partnership Agreement of October 1, 1984, or the date of which all
the assets acquired by the Partnership are sold or converted to cash.
The Partnership acquired two garden-style apartment communities in 1985 and
three commercial strip shopping centers in 1986. The General Partners feel that
all of these properties met the Partnership's investment criteria and
objectives.
Outstanding Limited Partnership Interests
According to the Partnership, there were 24,869.50 limited partnership
units issued and outstanding at December 31, 1998. A Limited Partner is entitled
to one vote for each Limited Partnership Interest owned by such Limited Partner.
Millenium does not know if any person currently owns beneficially in excess of
5% of the outstanding Limited Partnership Interests.
PROPOSALS AND SUPPORTING STATEMENT
The Limited Partners are being asked to approve by written consent the
following actions (the "Proposals") pursuant to the Partnership Agreement:
(1) the removal of all of the current general partners of the Partnership,
specifically, Hoyt and SIRI and any other person or entity currently serving as
a general partner; and
(2) the continuation of the Partnership with Millenium as the new general
partner of the Partnership (which is conditioned upon the approval of Proposal 1
above).
Removing the General Partner
A review of documents and reports publicly filed by the Partnership and
books and records available to partners indicates that the Partnership held real
estate assets that, if they are still held by the Partnership, may be valuable.
We note that these documents and records are from 1998. The general partner has
not filed any current reports or sent updated financial information to the
Limited Partners since 1998. If the Partnership has disposed of its assets,
Millenium will seek to determine the details of such disposition and the use of
any proceeds therefrom. If the Partnership still owns these assets, Millenium
believes the Partnership should be exploring opportunities to maximize the value
of these assets and concentrate on realizing potential cash returns to the
Limited Partners on their original investment. If Millenium is elected as the
new general partner, it plans to review the books and records of the Partnership
and formulate specific plans to achieve these goals and objectives. Of course,
Millenium cannot give any assurances that electing Millenium as the new general
partner will result in attaining theses goals and objections.
Millenium believes that removing the current general partners and electing
Millenium as the new general partner will provide the Limited Partners with the
best potential to realize the greatest potential cash returns to the Limited
Partners in the near future. The goal of Millenium in soliciting the Consents is
to elect itself as the new general partner of the Partnership so that it can:
o Send Financial Reports to Limited Partners: Upon becoming the new
general partner, Millenium will send you detailed financial reports
about Partnership assets and operations which the current general
partners have continuously withheld.
o File Required Reports with the SEC: Millenium will file all the
required financial reports with the SEC. The current general partners
have not filed the required financial reports with the SEC for periods
after 1998. We believe the Partnership is in serious violation of
securities laws.
o Investigate Claims: Although Millenium is currently not aware of any
existing claims against the general partners, upon becoming your new
general partner Millenium will investigate to determine whether or not
there are any claims, such as claims for breach of fiduciary duty or
breach of the Partnership Agreement, that should be brought against
the Partnership's current general partners.
o Reduce Management Fees and Expenses: Millenium will use its best
efforts to reduce the property management and other fees paid by the
Partnership, especially any fees paid to the current general partners
and its affiliates.
o Liquidate The Partnership: Once Millenium has been able to take over
the Partnership and analyze its situation, if Millenium deems it to be
in the best interest of the Limited Partners, it will solicit the
votes of the limited partners to sell any remaining properties and
liquidate the Partnership (the Partnership Agreement currently
provides that the Partnership does not have to be liquidated until the
year 2044).
Admission of New General Partner
If the Required Consents are obtained to remove the current general
partners and elect Millenium as the new general partner, the current general
partners will not retain any of the rights, powers or authority accruing to the
general partner following their removal as general partners; provided, however,
that Millenium must purchase the current general partners' interest in the
Partnership at its fair value on the date of such removal as provided in Section
17.4 of the Partnership Agreement. Millenium is unable to estimate the fair
value of the current general partners' interest in the Partnership based on the
information available to Millenium. Therefore, Millenium is unable to determine
if the obligation to purchase such interest would be material or would have a
material effect on Millenium's financial condition or operations.
Further, Section 9.8 of the Partnership Agreement provides that if the
general partners are removed from the Partnership, any portion of the
Acquisition Fee, Property Management Fee, Partnership Management Fee,
subordinated real estate commission, General Partners' Interest in Cash From
Sales, Financing, Refinancing or Liquidation or any other fee or commission
payable according to the provisions of Section 9 which is then accrued and due,
but not yet paid, shall be paid by the Partnership to the general partners.
Millenium is unable to determine if any such amounts are accrued but not paid or
if this obligation of the Partnership would be material, have a material effect
on the Partnership's financial condition or operations, or affect the
Partnership's ability to make distributions.
Millenium does not anticipate any circumstance under which Millenium would
not desire to become the new general partner, however, Millenium reserves the
right to withdraw before admission as the new general partner in the event of a
material adverse change in the Partnership. A material adverse change would
include bankruptcy, foreclosure or other material impairments on the value or
operations of the Partnership's assets. If the current general partners are
removed, Millenium withdraws, and no replacement general partner is elected,
than a party appointed for such purpose shall wind up the affairs of the
Partnership, shall sell all of the Partnership's assets as promptly as is
consistent with obtaining the fair value thereof, and pay all liabilities and
all costs of dissolution.
VOTING PROCEDURE FOR LIMITED PARTNER
Distribution and Expiration Date of Solicitation
This Consent Solicitation Statement and the related Consent are first being
mailed to Limited Partners on or about March [_], 2004. Limited Partners who are
record owners of Limited Partnership Interests as of the Record Date may execute
and deliver a Consent. A beneficial owner of Limited Partnership Interests who
is not the record owner of such Limited Partnership Interests must arrange for
the record owner of such Limited Partnership Interests to execute and deliver to
Millenium a Consent form that reflects the vote of the beneficial owner.
This solicitation of Consents will expire at 11:59 p.m. Pacific Time on the
earlier to occur of the following dates (the "Expiration Date"): (i)
[___________], 2004 or such later date to which Millenium determines to extend
the solicitation, and (ii) the date the Required Consents are received.
Millenium reserves the right to extend this solicitation of Consents for such
period or periods as it may determine in its sole discretion from time to time;
provided, however that it will not extend this solicitation past [_____], 2004.
Any such extension will be followed as promptly as practicable by notice thereof
by written notice to the Limited Partners, as well as filing with the SEC. All
Consents delivered to Millenium will remain effective until the Expiration Date,
including during any extension thereof, unless validly revoked by a later dated
Consent delivered to Millenium prior to the Expiration Date. No Consent will be
considered effective longer than eleven months from the date it is given.
Millenium reserves the right for any reason to terminate the solicitation of
Consents at any time prior to the Expiration Date by filing an amendment to this
Consent Solicitation Statement with the SEC.
Voting Procedures and Required Consents
The Consent of Limited Partner form included with this Consent Solicitation
Statement is the ballot to be used by Limited Partners to cast their votes. For
each Proposal, Limited Partners should mark a box adjacent to the Proposal
indicating that the Limited Partner votes "For" or "Against" the Proposal, or
wishes to "Abstain". All Consents that are properly completed, signed and
delivered to Millenium, and not validly revoked prior to the Expiration Date,
will be given effect in accordance with the specifications thereof. If none of
the boxes on the Consent is marked, but the Consent is otherwise properly
completed and signed, the Limited Partner delivering such Consent will be deemed
to have voted "For" the Proposals.
Each Proposal requires the consent of the record holders of a majority of
the Limited Partnership Interests (the "Required Consents"). Accordingly,
adoption of each Proposal requires the receipt without revocation of the
Required Consents indicating a vote "For" the Proposal. Millenium is seeking
approval of each of the Proposals. The continuation of the Partnership with
Millenium as the new general partner is conditioned on the approval of the
removal of the current general partners. Otherwise, no Proposal is conditioned
on the approval of another Proposal. The failure of a Limited Partner to deliver
a Consent or a vote to "Abstain" will have the same effect as if such Limited
Partner had voted "Against" the Proposals. Limited Partnership Interests not
voted on Consents returned by brokers, banks or nominees will have the same
effect as Limited Partnership Interests voted against the Proposals.
If Limited Partnership Interests to which a Consent relates are held of
record by two or more joint holders or tenants in common, all such holders must
sign the Consent. If a Consent is signed by a trustee, partner, executor,
administrator, guardian, attorney-in-fact, officer of a corporation or other
person acting in a fiduciary or representative capacity, such person must so
indicate when signing and must submit with the Consent form appropriate evidence
of authority to execute the Consent. In addition, if a Consent relates to less
than the total number of Limited Partnership Interests held in the name of such
Limited Partner, the Limited Partner must state the number of Limited
Partnership Interests recorded in the name of such Limited Partner to which the
Consent relates. If a Consent is executed by a person other than the record
owner, then it must be accompanied by a valid proxy duly executed by the record
owner.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance, and revocation of Consents, and the interpretation of the
terms and conditions of this solicitation of Consents, will be determined by
Millenium, subject to the provisions of the Partnership Agreement, as well as
state and federal law. Neither Millenium, nor any of its affiliates, shall be
under any duty to give any notification of any such defects, irregularities or
waiver, nor shall any of them incur any liability for failure to give such
notification. Deliveries of Consents will not be deemed to have been made until
any irregularities or defects therein have been cured or waived.
In the event Millenium determines to extend this solicitation of Consents
in its sole discretion or this solicitation of Consents expires, Millenium will
notify the Limited Partners as promptly as practicable thereafter by notice of
such extension or the results of this solicitation of Consents by written notice
to the Limited Partners, as well as filing an amendment to this Consent
Solicitation Statement with the SEC, if required.
Effectiveness; Potential Challenges
Certain aspects of the procedure set forth for this solicitation are
subject to uncertainty because such procedures are not defined by the
Partnership Agreement or the Revised Uniform Limited Partnership Act that
governs the Partnership. Therefore, such procedures may be challenged by the
current general partners or other limited partners and may result in a delay or
nullification of the effectiveness of the Consents. In particular, neither the
Partnership Agreement nor applicable law conclusively establishes: the manner
for getting the Record Date; who can receive and verify consents and
revocations; and when does an action taken by written consent become effective.
Millenium believes that its procedures for collection of consents and
revocations, as well as determining the validity of the same, are valid but
nonetheless may be subject to challenge by the current general partners or other
limited partners due to ambiguity in the Partnership Agreement and the
applicable law.
Completion Instructions
Limited Partners are requested to complete, sign and date the GREEN Consent
of Limited Partner form included with this Consent Solicitation Statement and
mail, fax, hand deliver or send by overnight courier the original signed Consent
to Millenium Management, LLC, 155 N. Lake Avenue, Suite 1000, Pasadena, CA
91101, Fax No.: 626-585-5929.
Consents should be sent or delivered to Millenium at the address set forth
on the back cover of this Consent Solicitation Statement. A prepaid, return
envelope is included for your convenience.
Power of Attorney
Upon approval of a Proposal, Millenium will be expressly authorized to
prepare any and all documentation and take any further actions necessary to
implement the approved Proposal. Furthermore, each Limited Partner who votes for
a Proposal described in this Consent Solicitation Statement, by signing the
attached Consent, constitutes and appoints Millenium, acting through its
officers and employees, as his or her attorney-in-fact for the purposes of
executing any and all documents and taking any and all actions required under
the Partnership Agreement or applicable law in order to implement the approved
Proposal, including the execution of an amendment to the Partnership Agreement
to reflect Millenium as the new general partner of the Partnership in accordance
with the applicable Proposal.
Revocation of Consents
Consents may be revoked at any time prior to the Expiration Date, or a
Limited Partner may change his vote on one or both Proposals, in accordance with
the following procedures. For a revocation or change of vote to be effective,
Millenium must receive prior to the Expiration Date a written notice of
revocation or change of vote (which may be in the form of a subsequent, properly
executed Consent) at the address set forth on the Consent. The notice must
specify the name of the record holder of the Limited Partnership Interests and
the name of the person having executed the Consent to be revoked or changed (if
different), and must be executed in the same manner as the Consent to which the
revocation or change relates or by a duly authorized person that so indicates
and that submits with the notice appropriate evidence of such authority as
determined by Millenium. A revocation or change of a Consent shall be effective
only as to the Limited Partnership Interests listed on such notice and only if
such notice complies with the provisions of this Consent Solicitation Statement.
Millenium reserves the right to contest the validity of any revocation or
change of vote and all questions as to validity (including time of receipt) will
be determined by Millenium, subject to the provisions of the Partnership
Agreement, as well as state and federal law.
No Dissenters' Rights of Appraisal
Under the Partnership Agreement and Kansas law, Limited Partners do not
have dissenters' rights of appraisal in connection with these Proposals.
Solicitation of Consents
Neither the Partnership nor the current general partners are participants
in this solicitation of Consents. Millenium will initially bear all costs of
this solicitation of Consents, including fees for attorneys and the cost of
preparing, printing and mailing this Consent Solicitation Statement, which are
currently estimated to be $20,000. To date, Millenium has incurred fees and
expenses for this solicitation of approximately $5,000. If Millenium is elected
as the new general partner, Millenium will seek reimbursement for such costs
from the Partnership to the extent allowed under Paragraph 10 of the Partnership
Agreement. Paragraph 10.3 of the Partnership Agreement provides that the
Partnership shall pay the general partner for expenses in connection with
preparation of proxy statements and solicitations of proxies in connection
therewith as well as the preparation and mailing of any reports the general
partner of the Partnership deems in the best interest of the Limited Partners.
In addition to the use of mails, certain regular employees of Everest may
solicit Consents via telephone on behalf of Millenium and Everest, for which no
additional compensation will be paid.
Limited Partners are encouraged to contact Stacey McClain of Millenium at
the telephone number set forth on the back cover of this Consent Solicitation
Statement with any questions regarding this solicitation of Consents and with
requests for additional copies of this Consent Solicitation Statement and form
of Consent.
SOLICITATION OF CONSENTS
of
LIMITED PARTNERS
of
Secured Investment Resources Fund, L.P.
a Kansas Limited Partnership
Deliveries of Consents, properly completed and duly executed, should be
made to Millenium Management, LLC at:
155 N. Lake Avenue, Suite 1000
Pasadena, CA 91101
Fax No.: 626-585-5929
Questions and requests for assistance about procedures for consenting or
other matters relating to this solicitation may be directed to Stacey McClain at
the address and telephone number listed below. Additional copies of this Consent
Solicitation Statement and form of Consent may be obtained from Millenium as set
forth below.
No person is authorized to give any information or to make any
representation not contained in this Consent Solicitation Statement regarding
the solicitation of Consents made hereby, and, if given or made, any such
information or representation should not be relied upon as having been
authorized by Millenium or any other person. The delivery of this Consent
Solicitation Statement shall not, under any circumstances, create any
implication that there has been no change in the information set forth herein or
in the affairs of Millenium or the Partnership since the date hereof.
Everest Properties II, LLC
Millenium Management, LLC
155 N. Lake Avenue, Suite 1000
Pasadena, CA 91101
(626) 585-5920
SOLICITED BY EVEREST PROPERTIES II, LLC
MILLENIUM MANAGEMENT, LLC
(Preliminary Form of Consent)
CONSENT OF LIMITED PARTNER
Secured Investment Resources Fund, L.P.
a Kansas Limited Partnership (the "Partnership")
LIMITED PARTNERS WHO RETURN A SIGNED CONSENT BUT FAIL TO INDICATE THEIR
APPROVAL OR DISAPPROVAL AS TO ANY MATTER WILL BE DEEMED TO HAVE VOTED FOR SUCH
MATTER. THIS CONSENT IS VALID FROM THE DATE OF ITS EXECUTION UNTIL DULY REVOKED,
BUT NO LONGER THAN ELEVEN MONTHS.
THIS CONSENT FORM REVOKES ANY PREVIOUSLY EXECUTED CONSENT.
The undersigned has received the Consent Solicitation Statement dated March [_],
2004 ("Consent Solicitation Statement") by Millenium Management, LLC, a
California limited liability company ("Millenium") and Everest Properties II,
LLC, a California limited liability company, seeking the approval by written
consent of the following proposals:
(1) the removal of all of the current general partners of the Partnership,
specifically, James R. Hoyt, an individual, and Secured Investment Resources,
Inc., a Kansas corporation, and any other person or entity currently serving as
a general partner; and
(2) the continuation of the Partnership with Millenium as the new general
partner of the Partnership (which is conditioned on the approval of proposal (1)
above).
Each of the undersigned, by signing and returning this Consent, hereby
constitutes and appoints Millenium, acting through its officers and employees,
as his or her attorney-in-fact for the purposes of executing any and all
documents and taking any and all actions required under the Partnership
Agreement or applicable law in order to implement an approved proposal; and
hereby votes all limited partnership interests of the Partnership held of record
by the undersigned as follows for the proposals set forth above, subject to the
Consent Solicitation Statement.
Proposal FOR AGAINST ABSTAIN
1. Removal of Current General Partners [ ] [ ] [ ]
2. Continuation of the Partnership [ ] [ ] [ ]
with a new general partner,
Millenium
(Please sign exactly as your name appears on the Partnership's records. Joint
owners should each sign. Attorneys-in-fact, executors, administrators, trustees,
guardians, corporation officers or others acting in representative capacity
should indicate the capacity in which they sign and should give FULL title, and
submit appropriate evidence of authority to execute the Consent)
Dated: _______________________, 2004
(Important-please fill in)
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Signature / Title
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Signature / Title
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Telephone Number