Exhibit (a)(2)
LETTER OF TRANSMITTAL
THE OFFER, WITHDRAWAL RIGHTS AND PRORATION PERIOD WILL EXPIRE AT 12:00
MIDNIGHT, PACIFIC STANDARD TIME, ON June 5, 2000 (THE "EXPIRATION DATE") UNLESS
EXTENDED.
Deliver to: MacKenzie Patterson, Inc.
1640 School Street
Moraga, California 94556
For Assistance: (800) 854-8357
Via Facsimile: (925) 376-7983
E-Mail Address: offers@mackpatt.com
(PLEASE INDICATE CHANGES OR CORRECTIONS TO THE ADDRESS
PRINTED TO THE LEFT)
To participate in the Offer, a duly executed copy of this Letter of
Transmittal and any other documents required by this Letter of Transmittal must
be received by the Depositary on or prior to the Expiration Date.
Delivery of this Letter of Transmittal or any other required documents
to an address other than as set forth above does not constitute valid delivery.
The method of delivery of all documents is at the election and risk of the
tendering Unit holder. Please use the pre-addressed, postage-paid envelope
provided.
This Letter of Transmittal is to be completed by holders of assignee units
of limited partnership interest ("Units") in BROWN-BENCHMARK PROPERTIES LIMITED
PARTNERSHIP, an Delaware limited partnership(the "Partnership"), pursuant to the
procedures set forth in the Offer to Purchase (as defined below). Capitalized
terms used herein and not defined herein have the meanings ascribed to such
terms in the Offer to Purchase.
PLEASE CAREFULLY READ THE ACCOMPANYING INSTRUCTIONS
Gentlemen: The undersigned hereby tenders to MP VALUE FUND 4, LLC; MP VALUE
FUND 6, LLC; MORAGA FUND 1, L.P.; ACCELERATED HIGH YIELD INSTITUTIONAL
INVESTORS, LTD.; ACCELERATED HIGH YIELD INSTITUTIONAL FUND, LTD.; MORAGA-DEWAAY
FUND, LLC; MP FALCON FUND, LLC; MORAGA GOLD, LLC; and PREVIOUSLY OWNED MORTGAGE
PARTNERSHIPS INCOME FUND, L.P. (collectively the "Purchasers") all of the
assignee units of limited partnership interest ("Units") in the Partnership held
by the undersigned as set forth above (or, if less than all such Units, the
number set forth below in the signature box), at a purchase price equal to $12
per Unit, less the amount of any distributions made or declared with respect to
the Units between May 5, 2000 and the Expiration Date, and upon the other terms
and subject to the conditions set forth in the Offer to Purchase, dated May 5,
2000 (the "Offer to Purchase") and in this Letter of Transmittal, as each may be
supplemented or amended from time to time (which together constitute the
"Offer"). Receipt of the Offer to Purchase is hereby acknowledged. The
undersigned recognizes that, if more than 125,000 Units are validly tendered
prior to or on the Expiration Date and not properly withdrawn, the Purchasers
will, upon the terms of the Offer, accept for payment from among those Units
tendered prior to or on the Expiration Date 125,000 Units on a pro rata basis,
with adjustments to avoid purchases of certain fractional Units, based upon the
number of Units validly tendered prior to the Expiration Date and not withdrawn.
Subject to and effective upon acceptance for payment of any of the Units
tendered hereby, the undersigned hereby sells, assigns and transfers to, or upon
the order of, Purchasers all right, title and interest in and to such Units
which are purchased pursuant to the Offer. The undersigned hereby irrevocably
constitutes and appoints the Purchasers as the true and lawful agent and
attorney-in-fact and proxy of the undersigned with respect to such Units, with
full power of substitution (such power of attorney and proxy being deemed to be
an irrevocable power and proxy coupled with an interest), to deliver such Units
and transfer ownership of such Units, on the books of the Partnership, together
with all accompanying evidences of transfer and authenticity, to or upon the
order of the Purchasers and, upon payment of the purchase price in respect of
such Units by the Purchasers, to exercise all voting rights and to receive all
benefits and otherwise exercise all rights of beneficial ownership of such Units
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all in accordance with the terms of the Offer. Subject to and effective upon the
purchase of any Units tendered hereby, the undersigned hereby requests that each
of the Purchasers be admitted to the Partnership as a "substitute Limited
Partner" under the terms of the Partnership Agreement of the Partnership. Upon
the purchase of Units pursuant to the Offer, all prior proxies and consents
given by the undersigned with respect to such Units will be revoked and no
subsequent proxies or consents may be given (and if given will not be deemed
effective). In addition, by executing this Letter of Transmittal, the
undersigned assigns to the Purchasers all of the undersigned's rights to receive
distributions from the Partnership with respect to Units which are purchased
pursuant to the Offer, other than distributions declared or paid through the
Expiration Date and to change the address of record for such distributions on
the books of the Partnership. Upon request, the Seller will execute and deliver,
and irrevocably directs any custodian to execute and deliver, any additional
documents deemed by the Purchaser to be necessary or desirable to complete the
assignment, transfer and purchase of such Units.
The undersigned hereby represents and warrants that the undersigned owns
the Units tendered hereby within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended, and has full power and authority to validly
tender, sell, assign and transfer the Units tendered hereby, and that when any
such Units are purchased by the Purchasers, the Purchasers will acquire good,
marketable and unencumbered title thereto, free and clear of all liens,
restrictions, charges, encumbrances, conditional sales agreements or other
obligations relating to the sale or transfer thereof, and such Units will not be
subject to any adverse claim. Upon request, the undersigned will execute and
deliver any additional documents deemed by the Purchasers to be necessary or
desirable to complete the assignment, transfer and purchase of Units tendered
hereby.
The undersigned understands that a tender of Units to the Purchasers will
constitute a binding agreement between the undersigned and the Purchasers upon
the terms and subject to the conditions of the Offer. The undersigned recognizes
the right of the Purchasers to effect a change of distribution address to
MacKenzie Patterson, Inc. at 1640 School Street, Moraga, California, 94556. The
undersigned recognizes that under certain circumstances set forth in the Offer
to Purchase, the Purchasers may not be required to accept for payment any of the
Units tendered hereby. In such event, the undersigned understands that any
Letter of Transmittal for Units not accepted for payment will be destroyed by
the Purchasers. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the undersigned and any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned. Except as stated in the Offer to
Purchase, this tender is irrevocable.
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SIGNATURE BOX
(Please complete Boxes A, B, C and D on the following page as necessary)
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Please sign exactly as your name is
printed (or corrected) above, and X---------------------------------------
insert your Taxpayer Identification (Signature of Owner) Date
Number or Social Security Number in
the space provided below your
signature. For joint owners, each joint
owner must sign.
(See Instructions 1) The signatory X---------------------------------------
hereto hereby certifies under penalties (Signature of Owner) Date
of perjury the statements in Box B,
Box C and if applicable, Box D.
If the undersigned is tendering less
than all Units held the number of
Units tendered is set forth below.
Otherwise, all Units held by the
undersigned are tendered hereby.
Taxpayer I.D. or Social #------------------
_____________ Units Telephone No. (day)---------------------
(eve.)--------------------
1 (cont.)
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BOX A
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Medallion Signature Guarantee
(Required for all Sellers)
(See Instruction 1)
Name and Address of Eligible Institution: --------------------------------------
Authorized Signature ----------------------------- Title --------------------
Name ---------------------------- Date ---------------------- ,200-----------
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BOX B
SUBSTITUTE FORM W-9
(See Instruction 3 - Box B)
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The person signing this Letter of Transmittal hereby certifies the
following to the Purchasers under penalties of perjury:
(i) The TIN set forth in the signature box on the front of
this Letter of Transmittal is the correct TIN of the Unit holder, or if this box
[ ] is checked, the Unit holder has applied for a TIN. If the Unit holder has
applied for a TIN, a TIN has not been issued to the Unit holder, and either: (a)
the Unit holder has mailed or delivered an application to receive a TIN to the
appropriate IRS Center or Social Security Administration Office, or (b) the Unit
holder intends to mail or deliver an application in the near future (it being
understood that if the Unit holder does not provide a TIN to the Purchasers
within sixty (60) days, 31% of all reportable payments made to the Unit holder
thereafter will be withheld until a TIN is provided to the Purchasers); and
(ii) Unless this box [ ] is checked, the Unit holder is not
subject to backup withholding either because the Unit holder: (a) is exempt from
backup withholding, (b) has not been notified by the IRS that the Unit holder is
subject to backup withholding as result of a failure to report all interest or
dividends, or (c) has been notified by the IRS that such Unit holder is no
longer subject to backup withholding.
Note: Place an "X" in the box in (ii) if you are unable to certify that the
Unit holder is not subject to backup withholding.
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BOX C
FIRPTA AFFIDAVIT
(See Instruction 3 - Box C)
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Under Section 1445(e)(5) of the Internal Revenue Code and Treas. Reg.
1.1445-11T(d), a transferee must withhold tax equal to 10% of the amount
realized with respect to certain transfers of an interest in a partnership if
50% or more of the value of its gross assets consists of U.S. real property
interests and 90% or more of the value of its gross assets consists of U.S. real
property interests plus cash equivalents, and the holder of the partnership
interest is a foreign person. To inform the Purchasers that no withholding is
required with respect to the Unit holder's interest in the Partnership, the
person signing this Letter of Transmittal hereby certifies the following under
penalties of perjury;
(i) Unless this box [ ] is checked, the Unit holder, if an
individual, is a U.S. citizen or a resident alien for purposes of U.S. income
taxation, and if other than an individual, is not a foreign corporation, foreign
partnership, foreign estate or foreign trust (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations); (ii) the Unit holder's U.S.
social security number (for individuals) or employer identification number (for
non-individuals) is correctly printed in the signature box on the front of this
Letter of Transmittal; and (iii) the Unit holder's home address (for
individuals), or office address (for non-individuals), is correctly printed (or
corrected) on the front of this Letter of Transmittal. If a corporation, the
jurisdiction of incorporation is __________.
The person signing this Letter of Transmittal understands that this
certification may be disclosed to the IRS by the Purchasers and that any false
statements contained herein could be punished by fine, imprisonment, or both.
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BOX D
SUBSTITUTE FORM W-8
(See Instruction 4 - Box D)
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By checking this box [ ], the person signing this Letter of
Transmittal hereby certifies under penalties of perjury that the Unit holder is
an "exempt foreign person" for purposes of the backup withholding rules under
the U.S. federal income tax laws, because the Unit holder:
(i) Is a nonresident alien individual or a foreign corporation,
partnership, estate or trust;
(ii) If an individual, has not been and plans not to be present in the U.S.
for a total of 183 days or more during the calendar year; and
(iii) Neither engages, nor plans to engage, in a U.S. trade or business
that has effectively connected gains from transactions with a broker or barter
exchange.
2 (cont.)
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer
1. Tender, Signature Requirements; Delivery. After carefully reading and
completing this Letter of Transmittal, in order to tender Units a Unit holder
must sign at the "X" on the bottom of the first page of this Letter of
Transmittal and insert the Unit holder's correct Taxpayer Identification Number
or Social Security Number ("TIN") in the space provided below the signature. The
signature must correspond exactly with the name printed (or corrected) on the
front of this Letter of Transmittal without any change whatsoever. If this
Letter of Transmittal is signed by the registered Unit holder of the Units a
Medallion signature guarantee on this Letter of Transmittal is required.
Similarly, if Units are tendered for the account of a member firm of a
registered national security exchange, a member firm of the National Association
of Securities Dealers, Inc. or a commercial bank, savings bank, credit union,
savings and loan association or trust company having an office, branch or agency
in the United States (each an "Eligible Institution"), a Medallion signature
guarantee is required. In all other cases, signatures on this Letter of
Transmittal must be Medallion guaranteed by an Eligible Institution, by
completing the Signature guarantee set forth in BOX A of this Letter of
Transmittal. If any tendered Units are registered in the names of two or more
joint holders, all such holders must sign this Letter of Transmittal. If this
Letter of Transmittal is signed by trustees, administrators, guardians,
attorneys-in-fact, officers of corporations, or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing and must
submit proper evidence satisfactory to the Purchasers of their authority to so
act. For Units to be validly tendered, a properly completed and duly executed
Letter of Transmittal, together with any required signature guarantees in BOX A,
and any other documents required by this Letter of Transmittal, must be received
by the depositary prior to or on the Expiration Date at its address or facsimile
number set forth on the front of this Letter of Transmittal. No alternative,
conditional or contingent tenders will be accepted. All tendering Unit holders
by execution of this Letter of Transmittal waive any right to receive any notice
of the acceptance of their tender.
2. Transfer Taxes. The Purchasers will pay or cause to be paid all transfer
taxes, if any, payable in respect of Units accepted for payment pursuant to the
Offer.
3. U.S. Persons. A Unit holder who or which is a United States citizen or
resident alien individual, a domestic corporation, a domestic partnership, a
domestic trust or a domestic estate (collectively "United States persons") as
those terms are defined in the Internal Revenue Code and Income Tax Regulations,
should complete the following:
Box B - Substitute Form W-9. In order to avoid 31% federal income tax
backup withholding, the Unit holder must provide to the Purchasers the Unit
holder's correct Taxpayer Identification Number or Social Security Number
("TIN") in the space provided below the signature line and certify, under
penalties of perjury, that such Unit holder is not subject to such backup
withholding. The TIN that must be provided is that of the registered Unit holder
indicated on the front of this Letter of Transmittal. If a correct TIN is not
provided, penalties may be imposed by the Internal Revenue Service ("IRS"), in
addition to the Unit holder being subject to backup withholding. Certain Unit
holders (including, among others, all corporations) are not subject to backup
withholding. Backup withholding is not an additional tax. If withholding results
in an overpayment of taxes, a refund may be obtained from the IRS.
Box C - FIRPTA Affidavit. To avoid potential withholding of tax
pursuant to Section 1445 of the Internal Revenue Code, each Unit holder who or
which is a United States Person (as defined Instruction 3 above) must certify,
under penalties of perjury, the Unit holder's TIN and address, and that the Unit
holder is not a foreign person. Tax withheld under Section 1445 of the Internal
Revenue Code is not an additional tax. If withholding results in an overpayment
of tax, a refund may be obtained from the IRS.
4. Foreign Persons. In order for a Unit holder who is a foreign person (i.e.,
not a United States Person as defined in 3 above) to qualify as exempt from 31%
backup withholding, such foreign Unit holder must certify, under penalties of
perjury, the statement in BOX D of this Letter of Transmittal attesting to that
foreign person's status by checking the box preceding such statement. However,
such person will be subject to withholding of tax under Section 1445 of the
Code.
5. Additional Copies of Offer to Purchase and Letter of Transmittal.
Requests for assistance or additional copies of the Offer to Purchase and this
Letter of Transmittal may be obtained from the Purchasers by calling
800-854-8357.
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