THE SCOTT LAW FIRM, P.A.
940 Northeast 79th Street, Suite A
Miami, Florida 33138
(305) 754-3603
facsimile (305) 754-2668
wscott@wscottlaw.com
July 25, 2005
Ms. Karen Garnett
Assistant Director
U.S. Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: TriView Global Fund, LLC (the "Registrant" and the "Fund")
Registration Statement on Form S-1, Pre-effective Amendment No. 3
File No. 333-119655
Dear Ms. Garnett,
We have reproduced your letter to the Registrant of June 3, 2005, and
have supplied its response immediately following each of the comments. All
changes are reflected in the Issuer's Registration Statement, Pre-effective
Amendment No. 3 filed herewith.
We are available to amplify or clarify any response.
Very truly yours,
/s/ William S. Scott
William Sumner Scott
For the Firm
WSS/lf
cc: TriView Capital Management, Inc.
Managing Member
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
Mail Stop, 4561
June 3, 2005
Michael Pacult
Managing Member
TriView Global Fund, LLC
5916 N. 300 West
Fremont, Indiana 46737
Re: TriView Global Fund, LLC Amendment No. 2 to Form S-1
Filed on May 13, 2005 File No. 333-119655
Dear Mr. Pacult:
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 : nay have about our comments or
any other aspect of our review. Feel free to call us at the telex hone
numbers listed at the end of this letter.
For purposes of this comment letter, we refer to the pagination, paragraphs,
sentence and line numbers as displayed by the marked courtesy copy version of
your amended Form S-1 filed on May 13, 2005.
General
1. We note your references to a partnership and the general partner
throughout the prospectus, e.g. pages 1, 14-15. Please :revise to refer to
the limited liability company structure and your managing members.
Response: We have revised as follows:
Trading Advisor's and Managing Member's Incentive Fee (6)
and
(6) The trading advisors receive a 22.165% quarterly incentive fee on new net
profits and the corporate managing member receives a 4.283% incentive fee,
similarly calculated.
Cover Page
2. We note your revised disclosure in response to prior comment three from
our letter dated March 14, 2005 states that the "managing member reserves the
right to change the termination date of the offering pursuant to the LLC
Operating Agreement." Since Section 7 of the LLC Operating Agreement conveys
"sole and complete discretion to determine the terms and conditions of the
Offering" upon the managing member, please revise your disclosure to confirm
that your managing member will terminate this offering no later than two
years from its commencement. Alternatively, consider stating that the
managing member may extend the offering beyond this two-year period, but
quantify the amount of time for the extension.
Response: We have revised as follows:
The offering will terminate one year from the commencement of the offering if
the minimum is not sold, or upon two years from the commencement of the
offering if the minimum is sold. However, the managing member reserves the
right to extend the termination date of the offering an additional three
years beyond two years, pursuant to the LLC Operating Agreement, upon filing
the appropriate post effective amendment to the Fund registration statement
with the Securities and Exchange Commission.
Charges to the Fund, page 3
3. In your response to prior comment eight, we note you state that including
the round turn fee would appear to investors as an additional charge paid to
the futures commission merchant. Noting your concern, please include the
estimate accompanied by disclosure that this amount will be paid from your
managing members' 6% brokerage commission. Please make similar changes to
page 21 of the prospectus.
Response: We have revised on page 3 as follows:
The futures commission merchant
(Man Financial Inc.)
Accepts trades from the advisor, clears the trades; hold the Fund's trading
equity
From its 6%, the corporate managing member pays the futures commission
merchant the per round turn commissions, approximately $7.75 to $8.25 for
domestic markets.
We have revised on page 21 as follows:
Futures Commission Merchant
(Man Financial Inc)
Round-turn commissions
From its 6%, the corporate managing member pays the futures commission
merchant its round turn brokerage commissions, approximately $7.75 to $8.25
for domestic markets.
Reimbursement of delivery, insurance, storage and any other charges
incidental to trading and paid to third parties Reimbursement by the Fund of
actual payments to third parties in connection with Fund trading
Redemptions, pages 4 and 44
4. We note your response to prior comment 12. Section 14(b) of your
Operating Agreement, however, does not appear to specify the method by which
the managing member will honor redemptions in the event there are
insufficient funds. Please revise your disclosure to clarify that the
managing member has discretion over which requests to honor. Also, please
revise your disclosure to clarify that the managing member may, in its sole
discretion, suspend the amount of units to be redeemed in any month if it
determines that redemptions would impair the Fund's ability to meet its
objectives.
Response: We have revised Section 14(b) of the LLC Operating Agreement as
follows:
In addition to the limits and conditions as set forth above, the right to
obtain Redemption shall be contingent upon the Fund's having property
sufficient to discharge its liabilities on the date of Redemption. If the
Managing Member determines that permitting the number of Redemptions sought
would be detrimental to the tax status of the Fund, it may restrict the
number of Redemptions to be permitted as are necessary, in its sole
discretion, to not impair the Fund's tax status. Under special
circumstances, including, but not limited to, the inability to liquidate
positions in security or commodity interests as of or following the
Redemption Date, default or delay in payments due to the Fund from commodity
brokers, banks or other persons, the Fund may in turn delay payment to
persons requesting Redemption of Units of the proportionate part of net asset
value represented by the sums that are the subject to such default or delay.
In these cases, the managing member will honor redemptions in the order the
requests physically arrive at its office (first-come, first-serve). If
multiple requests arrive simultaneously and there is insufficient cash to
grant all the redemptions, each investor that made a redemption request will
receive a redemption amount pro rated based on its Unit investment in the
Fund.
5. Considering the discretion retained by the managing member, it appears
that the material terms of your redemption program are sufficiently broad so
that a new investment decision is created with respect to each redemption.
Consequently, your redemption program may be subject to Rule 13e-4 and
Regulation 14E of the Securities Exchange Act. Should you desire to seek
exemptive or no action relief from the Division of Corporation Finance,
please file a no-action request with the Division. Otherwise, please be
advised that any redemptions you make may be subject to the tender offer
rules.
Response: We have revised the LLC Operating Agreement to remove the Managing
Member's discretion to limit redemptions, except in the special cases noted.
In that regard, we do not believe the program may be subject to Rule 13e-4
and Regulation 14E of the Securities Exchange Act and will not seek exemptive
or no action relief from the Division of Corporation Finance.
Expenses Per Unit of Membership Interest pages 14-15
6. Please advise us as to what types of liquid securities you intend to
invest that may compose up to 90% of your equity.
Response: We have revised as follows:
(8) For purposes of this calculation, we have assumed that 90% of the
partnership equity will earn interest through the investment in short term T-
Bills on deposit for use as margin to secure trades with the futures
commission merchants at the current cash market interest assumption rate of
3.27% annually. All interest income will be paid to the Fund.
Charges to the Fund, page 19
7. Please revise your bullet-point definition of "new net profit" to clarify
that it is calculated after payment of brokerage fees and does not include
interest income earned by the LLC. Also, provide a description of how new net
profit is actually calculated.
Response: We have revised as follows:
New net profit:
* is calculated to determine how much a trading advisor has increased our
net assets through trading alone
* is based upon the net value of the equity assigned to the trading advisor
to trade
* is calculated after the payment of brokerage fees
* is calculated monthly but paid quarterly
* only occurs when any losses in previous quarters have been offset by new
profits regardless of whether:
* the managing member has changed the trading advisor's compensation, or
* the Fund and trading advisor have entered a new contract
* is adjusted to eliminate the effects of:
* any new subscriptions for membership interests
* redemptions by members
* any interest income paid to the Fund, and
* any other income earned on our assets that are not related to trading
activity, regardless of whether such assets are held separately or in a
margin account.
For example, if loses in previous quarters totaled $500,000, and in the
subsequent quarter the Fund (i) earned $2,000,000 through trading profits,
(ii) earned $300,000 in total interest, (iii) added $1,000,000 in capital
contributions from members, and (iv) paid $500,000 in redemptions; then,
only the $2,000,000 in trading profits would be used to calculate new net
profits and would be offset by the previous loss of $500,000. In this case,
new net profit would be $1,500,000.
The Managing Member, page 23
8. In connection with your response to prier comment 18 from our last letter
dated March 14, 2005, we note you disclose Mr. Pacult's net worth as "in
excess of $3.3 million." Please revise to state the dollar amount of his net
worth as of a given date or date of the prospectus. It appears that the term
"in excess" of a certain number may make this disclosure unnecessarily vague
to investors.
Response: We have revised as follows:
Audited financial statements for the corporate managing member for the period
ended December 31, 2004 are included in this prospectus. As of May 31, 2005,
the individual managing member's net worth is 3.3 million dollars and
consists primarily of real estate that is not readily marketable. However,
it is sufficient to maintain compliance with the North American Securities
Administrators Association guidelines for commodity pools. This will allow
the membership interests to be sold in States that apply those guidelines.
Also, see Experts.
Performance of Other Funds Managed by the Managing Member, page 25
9. Please revise your disclosure to include Providence Select Fund, Limited
Partnership as a fund managed by Mr. Pacult, but which, if true, has not yet
commenced trading.
Response: We have revised as follows:
Within the last ten years, the individual managing member of the Fund,
Michael Pacult, has managed four other commodity pools, one of which,
Strategic Opportunities Fund, LLC, is privately offered and has not yet
commenced trading. Mr. Pacult is the sole principal of the corporate general
partner of Strategic. The other three pools are publicly offered: Atlas
Futures Fund, LP, Bromwell Financial Fund, LP and Providence Select Fund, LP.
Atlas and Bromwell have commenced trading, however, Providence has not yet
commenced trading. The Fund's corporate managing member has not managed any
other commodity pools. As of August, 2003, Mr. Pacult became an individual
general partner and sole principal of the corporate general partner of both
Atlas and Bromwell, but is no longer an individual general partner of
Bromwell. Mr. Pacult has been the individual general partner and principal
of the corporate general partner of Providence since inception. As of May
31, 2005, the total amount of money raised for Atlas and Bromwell was
$13,293,226 and the total number of investors in both pools was 230. There
are not yet any investors in Providence nor has any money been raised for it.
In November, 2003, the two trading advisors for Bromwell were replaced
because they were unprofitable. As of January 12, 2005, the new trading
advisor, Fall River Capital, LLC had not been profitable and the general
partner of Bromwell suspended the offering and trading, and caused
substantially all of the partners to redeem their accounts in Bromwell.
Bromwell is currently undergoing reorganization with new terms and a new
commodity trading advisor. Atlas, however, has been profitable since
inception and its offering is ongoing.
Financial Statements
10. Update the financial statements in accordance with Rule 3-12 of
Regulation S-X.
Response: We have updated the financial statements as of May 31, 2005.
Part II of the Form S-1 Exhibit 5.01 Legal Opinion
11. Please ask counsel to confirm to us in writing that it concurs with our
understanding that the reference and limitation to "Delaware General
Corporation Law" includes the statutory provisions and also all applicable
provisions of the Delaware Constitution and reported judicial decisions
interpreting these laws. Refer to Section VIII.A.14. of the Division of
Corporation Finance: Current Issues and Rulemaking Projects Outline (November
14, 2000).
Response: The Scott Law Firm, P.A., by signature below, hereby confirms that
it concurs with the understanding of the SEC that the reference and
limitation to "Delaware General Corporation Law" includes the statutory
provisions and also all applicable provisions of the Delaware Constitution
and reported judicial decisions interpreting these laws.
/s/ William S. Scott
William S. Scott
For the Firm