Exhibit (a)(2)
LETTER OF TRANSMITTAL
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 Shareholder. Please use
the pre-addressed, postage-paid envelope provided. This Letter of Transmittal is
to be completed by holders of Shares of common stock in AMERICAN SPECTRUM
REALTY, INC. (the "Corporation"), pursuant to the procedures set forth in the
Offer to Purchase (as defined below). Capitalized terms used herein and not
defined herein have the same meanings as in the Offer to Purchase.
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11114 THE OFFER, WITHDRAWAL RIGHTS, AND PRORATION PERIOD
WILL EXPIRE AT 11:59 P.M., PACIFIC TIME, ON DECEMBER
Name: ____________________ 21, 2007 (THE "EXPIRATION DATE") UNLESS EXTENDED.
Deliver to: MacKenzie Patterson Fuller, LP
Address: _________________ 1640 School Street
Moraga, California 94556
City, State, ZIP: ________ For Assistance: (800) 854-8357
Via Facsimile: (925) 631-9119
Shares Owned: ____________ E-Mail Address: offers@mpfi.com
(PLEASE INDICATE CHANGES OR CORRECTIONS TO THE
ADDRESS PRINTED TO THE LEFT)
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PLEASE CAREFULLY READ THE ACCOMPANYING INSTRUCTIONS
To whom it may concern:
The undersigned hereby tenders to MPF Badger Acquisition Co., LLC, MPF-NY 2007,
LLC, MP Value Fund 5, LLC, MPF DeWaay Premier Fund 3, LLC, MP Value Fund 5, LLC,
MPF Flagship Fund 13, LLC, MPF DeWaay Premier Fund, LLC, Sutter Opportunity Fund
4, LLC, MPF ePlanning Opportunity Fund, LP, MPF DeWaay Fund 6, LLC, MPF DeWaay
Premier Fund 4, LLC, MPF Income Fund 24, LLC, MPF Special Fund 8, LLC
(collectively the "Purchasers") all of the Shares of common stock ("Shares") in
the Corporation held by the undersigned as set forth above (or, if less than all
such Shares, the number set forth below in the signature box), at a purchase
price equal to $17.25 per Share, less the amount of any dividends made or
declared with respect to the Shares between November 16, 2007 and the Expiration
Date, and upon the other terms and subject to the conditions set forth in the
Offer to Purchase, dated November 16, 2007 (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 138,180
Shares 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 Shares tendered prior to or on the Expiration Date 138,180
Shares on a pro rata basis, with adjustments to avoid purchases of certain
fractional Shares, based upon the number of Shares validly tendered prior to the
Expiration Date and not withdrawn.Subject to and effective upon acceptance for
payment of any of the Shares tendered hereby, the undersigned sells, assigns,
and transfers to, Purchasers all right, title, and interest in and to such
Shares 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 Shares,
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
Shares and transfer ownership of such Shares, on the books of the Corporation,
together with all accompanying evidences of transfer and authenticity, to the
Purchasers and, upon acceptance of the tender of such Shares by the Purchasers,
to exercise all voting rights and to receive all benefits and otherwise exercise
all rights of beneficial ownership of such Shares all in accordance with the
terms of the Offer. Upon the purchase of Shares pursuant to the Offer, all prior
proxies and consents given by the undersigned with respect to such Shares 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 dividends from the Corporation with respect to Shares which are
purchased pursuant to the Offer, other than dividends declared or paid through
the Expiration Date and to change the address of record for such dividends on
the books of the Corporation. 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 Shares.
The undersigned hereby represents and warrants that the undersigned owns the
Shares tendered hereby and has full power and authority to validly tender, sell,
assign, and transfer the Shares tendered hereby, and that when any such Shares
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 Shares 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 Shares tendered hereby. The
undersigned understands that a tender of Shares 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 dividend address to MacKenzie
Patterson Fuller, LP 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
Shares tendered hereby. In such event, the undersigned understands that any
Letter of Transmittal for Shares 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.
Arbitration Agreement: The Purchaser and the undersigned agree that any dispute,
claim, or controversy arising out of a purchase of Shares shall be resolved by
submission to binding arbitration in Oakland, California before a retired judge,
and all parties agree to be subject to jurisdiction in California. If one party
suggests arbitrators, and the other party fails to respond within 20 days of
notice by the proposing party, the proposing party may select the arbitrator
from among its suggested arbitrators. If the parties are unable to agree on an
arbitrator, the parties shall select an arbitrator pursuant to the rules of
JAMS. The arbitrator selected must follow applicable Federal securities laws and
California law and the rules of JAMS consistent herewith. The arbitrator must
render a decision in writing, explaining the legal and factual basis for
decision as to each of the principal controverted issues. The arbitrator's
decision will be final and binding upon the parties. A judgment upon any award
may be entered in a court of competent jurisdiction. Each party shall be
responsible for advancing one-half of the costs of arbitration; provided that
the prevailing party shall be entitled to recover expenses including but not
limited to attorney fees, arbitrator fees, and filing fees. Neither party is
waiving any rights under the federal securities laws, rules, or regulations. All
matters relating to this arbitration shall be governed by the Federal
Arbitration Act (9 U.S.C. Sections 1 et seq.).
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BOX A -- Medallion Signature Guarantee X
PLEASE DO NOT USE FOR ANY --------------------------------------
OTHER PURPOSE (MPF WILL (Signature of Owner) Date
OBTAIN FOR YOU)
X
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(Signature of Owner) Date
Taxpayer I.D. or Social #
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Telephone No. (day)
----------------------
(eve.)
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_________ BAC [ ] SELL ALL OR NONE (check
this box if you wish to
sell your Units ONLY if
ALL your Units will be
purchased).
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Please sign exactly as your name is printed (or corrected) above, and insert
your Taxpayer Identification Number or Social Security Number in the space
provided below your signature. For joint owners, each joint owner must sign.
(See Instruction 1). The signatory hereto hereby certifies under penalties of
perjury the statements in Box B, Box C and, if applicable, Box D. If the Owner
is tendering less than all Shares held, the number of Shares tendered is set
forth above. Otherwise, all Shares held by the undersigned are tendered hereby.
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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 Shareholder, or if this box [ ] is
checked, the Shareholder has applied for a TIN. If the Shareholder has applied
for a TIN, a TIN has not been issued to the Shareholder, and either: (a) the
Shareholder has mailed or delivered an application to receive a TIN to the
appropriate IRS Center or Social Security Administration Office, or (b) the
Shareholder intends to mail or deliver an application in the near future (it
being understood that if the Shareholder does not provide a TIN to the
Purchasers within sixty (60) days, 31% of all reportable payments made to the
Shareholder thereafter will be withheld until a TIN is provided to the
Purchasers); and
(ii) Unless this box [ ] is checked, the Shareholder is not subject to
backup withholding either because the Shareholder: (a) is exempt from backup
withholding, (b) has not been notified by the IRS that the Shareholder 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 Shareholder is no
longer subject to backup withholding.
Note: Place an "X" in the box in (ii) if you are unable to certify that the
Shareholder 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 shares of a Corporation 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 shares is a foreign
person. To inform the Purchasers that no withholding is required with respect to
the Shareholder's interest in the Corporation, the person signing this Letter of
Transmittal hereby certifies the following under penalties of perjury:
(i) Unless this box [ ] is checked, the Shareholder, 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 Shareholder'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 Shareholder'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 Shareholder is an "exempt foreign
person" for purposes of the backup withholding rules under the U.S. federal
income tax laws, because the Shareholder:
(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.
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 Shares a
Shareholder must sign at the "X" on the bottom of the first page of this
Letter of Transmittal and insert the Shareholder'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 Shareholder of the Shares, a Medallion signature guarantee
on this Letter of Transmittal will be obtained for you by MPF. If Shares
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 also 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, but MPF will obtain this for you. If any tendered Shares 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
Shares 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 Shareholders 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 Shares accepted for payment pursuant
to the Offer.
3. U.S. Persons. A Shareholder 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 Shareholder must provide to the Purchasers the
Shareholder'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 Shareholder is not
subject to such backup withholding. The TIN that must be provided is
that of the registered Shareholder 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
Shareholder being subject to backup withholding. Certain Shareholders
(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
Shareholder who or which is a United States Person (as defined
Instruction 3 above) must certify, under penalties of perjury, the
Shareholder's TIN and address, and that the Shareholder 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 Shareholder 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 Shareholder 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.