EXHIBIT 99(a)(2)
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 BELLAVISTA CAPITAL, 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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THE OFFER, WITHDRAWAL RIGHTS, AND PRORATION PERIOD WILL
Name: ____________________________________ EXPIRE AT 12:00 MIDNIGHT, PACIFIC TIME, ON NOVEMBER 10, 2006
(THE "EXPIRATION DATE") UNLESS EXTENDED.
Address: __________________________________ Deliver to: MacKenzie Patterson Fuller, LP
1640 School Street
City, State, ZIP: ____________________________ Moraga, California 94556
For Assistance: (800) 854-8357
Shares Owned: ______________________________ Via Facsimile: (925) 631-9119
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-NY 2006, LLC; Moraga Gold, LLC; Steven
Gold; MPF Senior Note Program I, LP; MPF Income Fund 22, LLC; MacKenzie
Patterson Special Fund 5, LLC; MacKenzie Patterson Special Fund 7, LLC;
MacKenzie Patterson Special Fund 6, 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 $1.75 per Share, less the
amount of any dividends made or declared with respect to the Shares between
October 6, 2006 and the Expiration Date, and upon the other terms and subject to
the conditions set forth in the Offer to Purchase, dated October 6, 2006 (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 750,000 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 750,000 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 Purchasers 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 the parties are unable to agree on an arbitrator, each party
shall name one and the two persons so-named shall select a neutral judge who
will act as the sole arbitrator (if one party fails to select an arbitrator
within 20 days of notice by the other party of its selection, the other party's
selection will be the arbitrator). 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. Prevailing party shall be entitled to recover expenses including
but not limited to attorney fees, arbitrator fees, and filing fees. You are not
waiving any of your rights under the federal securities laws, rules, or
regulations.
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BOX A -- Medallion Signature Guarantee--PLEASE DO NOT USE FOR ANY
OTHER PURPOSE (Required for all Sellers; See Instruction 1) X___________________________________________________________
(Signature of Owner) Date
X___________________________________________________________
(Signature of Owner) Date
Taxpayer I.D. or Social # ________________________________
Telephone No. (day) ________________________________
(eve.) ________________________________
_______________ Shares
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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. |_| 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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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 is required. Similarly, 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 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 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.