May 9, 2005
Via Facsimile (415) - and U.S. Mail
Robert Dixon
Sutter Capital Management, LLC
220 Montgomery Street, Suite 2100
San Francisco, CA 94104
RE: Concord Milestone Plus, LP
Schedule TO-T filed April 29, 2005 by Sutter Opportunity
Fund 3, LLC, Sutter
Opportunity Fund 3 (TE), LLC, SCM-CMP Acquisition Fund, LLC,
MacKenzie Patterson Fuller, Inc., Robert E. Dixon,
and C.E. Patterson
File No. 005-40562
Ladies and Gentlemen:
We have the following comments on the above-referenced
filing.
Schedule TO-I
1. We note that the offer is dated April 27, 2005 but the Schedule
TO was filed on April 29, 2005. Note that under Rule 14d-3(a), you
are required to file the Schedule TO on the date of commencement of
the tender offer. Please tell us when you commenced the tender offer,
and the date upon which the offer to purchase was delivered to
Concord Milestone and its security holders.
2. It appears from the annual report on Form 10-K filed by Concord
Milestone that the Class A interests and Class B interests that
make up each unit have been separated. Please tell us, with a view
toward revised disclosure, whether this separation has occurred. If
so, revise your tender offer documents accordingly and present
disclosure regarding the effect on your tender offer, including, among
other issues, the ability of security holders to tender each class of
interests separately, whether you will accept for purchase such
separate interests, the effect on your rights and the rights of
the current security holders as a security holders, and your ability
to amend the partnership agreement or replace the general partner.
Also, please revise the letter of transmittal to reflect these
changes as necessary.
3. We further note that according to the 10-K filed by Concord
Milestone, there were 1,518,800 class A interests and 2,111,072
Class B interests outstanding as of February 25, 2005, while your
tender offer states that there were 1,518,800 units outstanding as of
March 10, 2005. Please explain this discrepancy.
Offer to Purchase
Cover Page - Page 1
4. We note that Mr. C.E. Patterson is listed as a bidder in the
Schedule TO. Please advise us why Mr. Patterson does not appear
in the Offer to Purchase as a purchaser.
5. We note that the offer price may be reduced due to
distributions made between the date of the offer and its expiration
date. Please clarify here that if such a distribution occurs and the
offer price is reduced, you will extend the tender offer for an
appropriate number of days as provided by Rule 14e-1(b). See
Section III.B.1 of Exchange Act Release No. 34-43069 (July 24, 2000).
6. We note your offer is dated April 27, 2005, while your
disclosure is provided for trades in February 2005. Please advise us,
with a view toward revised disclosure, whether or not more recent
trading price information is available.
7. Refer to the first full paragraph on page 2. Please explain,
with a view toward revised disclosure, what type of access to the
securities you would have at a time before all conditions to the
offer have been satisfied and payment has been made. We note that
all conditions, other than those dependent upon the receipt of
necessary government approvals, must be satisfied or waived prior
to expiration of the offer and that you may not accept the tendered
securities until the expiration of the offer.
8. We note your reference to a "proration period" near the top of
the page. Given that you are offering to purchase all outstanding
securities, please explain this reference or, if inapplicable to
this offer, remove it.
Introduction - Page 7
9. With respect to your estimated liquidation value of $4.18 per
unit, please provide us supplementally with support for the
capitalization rate selected.
Acceptance for payment - Page 9
10. We note in the penultimate paragraph of this section that you
may retain tendered securities and those securities may not be
withdrawn except as provided for under the withdrawal rights, subject
to the limitations of applicable law. Please clarify the applicable
law and its effects or delete the reference.
Extension of tender offer period - Page 11
11. Since you are offering to purchase all of the outstanding
securities, the exception to the extension of the offer relating
to an increase in securities sought of not more than 2% is not
applicable. Please revise.
12. Please advise us why the required disclosure regarding a
subsequent offering period, required by Item 1004(a)(1)(iv) of
Regulation M-A, was not included here or in the summary section of
the tender offer that was disseminated to security holders.
Certain Federal Income Tax Consequences - Page 12
13. Delete the reference to this discussion being for "general
information only." Security holders are entitled to rely upon the
discussion.
Effects of the Offer - Page 12
14. We note your disclosure that the company could deregister its
securities if the number of security holders was reduced below
300. Please disclose your plans in this respect in the event the
tender offer results in such a reduction of security holders.
Sources of Funds - Page 14
15. We note in the introduction that you will pay for all transfer
fees. Please confirm supplementally whether your estimate of
those fees is included in the $20,000 you expect to pay for fees and
expenses.
Conditions to the Offer - Page 14
16. Please describe briefly the authorizations or approvals to
which you refer in the first paragraph of this section.
Closing Information
Please amend your filing promptly to comply with our
comments. If you do not agree with a comment, please tell us why in
your response. If the information you provide in response to our
comments materially changes the information that you have already
provided to unit holders, disseminate the revised materials in a
manner reasonably calculated to inform them of the new information.
Depending upon your response to these comments, a supplement may
need to be sent to unit holders.
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 bidder is in possession of all
facts relating to its disclosure, it is responsible for the accuracy
and adequacy of the disclosures it has made.
In connection with responding to our comments, please
provide, in writing, a statement from the offerors acknowledging that:
* the offerors are responsible for the adequacy and accuracy of
the disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the offerors may not assert staff comments 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 our review of your filing
or in response to our comments on your filing.
Please direct any questions to me at (202) 942-2962 or, in
my absence, to Nicholas Panos, Special Counsel, at (202) 551-3266.
You may also contact me via facsimile at (202) 551-3619. Please send
all correspondence to us at the following ZIP code: 20549-0303.
Sincerely,
Daniel F. Duchovny
Attorney-Advisor
Office of Mergers &
Acquisitions
cc: Paul J. Derenthal, Esq. (via fax: (415) 981-4840)