May 16, 2005
Via Facsimile: (202) 772-9203
and submitted via EDGAR
Jeffrey B. Werbitt
Office of Mergers and Acquisitions
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549-0303
Re: Secured Investment Resources Fund, L.P. (the "Partnership")
Schedule TO-I filed April 15, 2005, by Millenium Management, LLC
File No. 005-80666
Dear Mr. Werbitt:
This letter responds to the Staff's comments conveyed in your letter of
April 27, 2005. Numbered paragraphs below correspond to the numbered paragraphs
in your letter.
1. Limited partnerships like the Partnership are not normally held in any
manner other than direct ownership by the individual beneficial owner (or their
custodial account, such as an IRA). This Partnership is typical and 1,216 refers
to beneficial holders. To assure that this would not be a Rule 13e-3
transaction, we calculated that if 8,000 units were tendered by the unit holders
with the smallest positions (resulting in the elimination of the highest number
of unit holders), it would still be mathematically impossible to have fewer than
300 unit holders.
2. In response to the comment, the Schedule TO is being amended.
3. The offeror's financial statements are not material to persons
considering the Offer because: (i) the offer is for cash; (ii) for persons
selling their securities, Purchaser's ability to finance the transaction is
disclosed; and (iii) for person's not selling their securities, the Purchaser's
financial condition as it might have been relevant to Purchaser's potential to
effectuate a change of control is not relevant in this case because Purchaser
already controls the Partnership, as its general partner. Therefore, we believe
nothing further is required to comply with Item 10 of Schedule TO-T.
4. The offer materials already discuss the considerations, including
"risks," that we believe are material to the decision whether or not to sell,
particularly in the bullet points (as suggested by Section III.B.1 of Exchange
Act Release No. 34-43069), and also in "Effects of the Offer." In addition to
the conflict of interest disclosure, the following statements appear in the
bullet points:
Securities and Exchange Commission
May 16, 2005
The Purchaser is making the Offer with a view to making a profit for
itself. Accordingly, the desire of the Purchaser to purchase Units at a low
price conflicts with the desire of the Unit Holders to sell their Units at
a high price.
Unit Holders who tender their Units will be giving up the opportunity to
participate in any potential future benefits from ownership of Units,
including distributions resulting from any future sale of the Partnership's
properties.
Therefore, we believe our bullet points address potential "risks" involved
in the offers and we believe the comment is unwarranted.
Your proposed "risk factor" concerning the lack of a depositary does not
apply to this offer because (as is typical) these limited partner units are not
represented by negotiable instruments. Therefore, unlike tenders of shares
represented by negotiable instruments, tendering partners do not suffer the risk
associated with endorsing a negotiable share certificate and delivering it to
another party (the Purchaser or a depositary).
5. We first sought to provide this "All or None" option to unit holders in
connection with a previous offer: Wilder Richman Historic Properties II, L.P.,
Schedule TO-T filed June 3, 2003, by Millenium Management, LLC and Everest
Properties II, LLC; File No.: 5-79056. At that time, I spoke with Abby Adams to
seek the Staff's input on this topic. Ms. Adams concurred with my conclusion
that there was nothing to prohibit us from providing such an option to the
limited partners. We added the option to the Wilder Richman offer and included
it in a few subsequent offers without receiving comments from the Staff.
The Staff did comment again on this issue in a pair of parallel offers:
Urban Improvement Fund Limited - 1973 and Urban Improvement Fund Limited - 1974,
Schedule TO-Ts filed January 6, 2004, by Everest Properties II, LLC, File Nos.
5-55067 and 5-61575. Based on the Staff's comments, the "All or None" option was
altered to make it function, as a technical matter, as a last-minute withdrawal
of the tender by the tendering security holder. Thus, if on the day of the
Expiration Date more than 8,000 units are tendered (unless the Purchaser
amends), the tenders by all Unit Holders that checked the All or None Box will
be deemed automatically withdrawn. Under such circumstances, the only units
tendered upon the expiration of the offer will be those tendered by Unit Holders
that did not check the All or None Box, and in accordance with the terms of our
offer and Rule 14d-8, those units would be prorated if they exceeded 8,000.
The reviewer for the Urban offers was Michele M. Anderson, and I believe
she may have consulted with Nicholas Panos, as well (although I am not certain).
At the time, Ms. Anderson agreed that this worked under the rules. We continue
to believe that there is nothing prohibiting such an automatic withdrawal
feature conditioned on a completely objective criterion.
6. In response to the first part of the comment, the first paragraph of the
section identified in the comment is being amended.
Regarding the second part of the comment, the first sentence of the
Withdrawal Rights section provides that withdrawal is permitted "at any time
after June 11, 2005" which date was meant to be 60 days after the offer date
but, due to a typo, is only 57 days after the offer date. I apologize for the
error. Given that the error is in favor of the unit holders, we will honor the
June 11 date, unless the Staff would prefer that we amend it to June 14.
Securities and Exchange Commission
May 16, 2005
7. The Purchaser has made and is expected to make other investments in
limited partnership interests of other partnerships. The members of the
Purchaser committed in advance, in writing, to provide capital up to a certain
amount, without reference to or knowledge of the specific offers to be made.
The Purchaser will not be making an equity offer. Several exemptions
applied to the Purchaser's initial formation and issuance of membership
interests, including without limitation Sections 3(a)(11) and 4(2) of the
Securities Act.
8. (Part II, Item 2. Properties) In response to the comment, the Purchaser
has provided additional information in its current letter to Unit Holders, which
is being filed as an exhibit to the amendment filed concurrently herewith.
Closing paragraphs: While acknowledging the Staff's positions, and without
implying any specific issue with such position, we respectfully decline to make
the statements requested. There is no requirement that we do so. To the extent
the requested statements are accurate statements of applicable law, there is no
reason to obtain from bidders a recitation of such law. To the extent the
statements go beyond applicable law or reflect interpretations of law that may
be open to dispute, it would not be fair or appropriate to require bidders to
make statements that might prejudice their right to take a contrary position at
some later time, if the occasion arose.
We are filing an amendment concurrently with this letter. We do not believe
that the amendment materially changes the information already provided to the
Unit Holders. Please contact the undersigned if you have any questions regarding
our responses to the Staff's comments and to advise us if the Staff has any
further comments.
Very truly yours,
/S/
Christopher K. Davis
Vice President and General Counsel
CKD:ckd
Enclosures with fax copy