-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LFuQgJ+wG+Am3B994mitUpt967erBPkMhtrIARkYMJFb+42Wfnv/jgrsPDbKgO2G w4tgCBrsjB9pFoI2WDbiiQ== 0000912057-01-527518.txt : 20010813 0000912057-01-527518.hdr.sgml : 20010813 ACCESSION NUMBER: 0000912057-01-527518 CONFORMED SUBMISSION TYPE: SC TO-I PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20010810 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: EXCEL LEGACY CORP CENTRAL INDEX KEY: 0001050671 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE OPERATORS (NO DEVELOPERS) & LESSORS [6510] IRS NUMBER: 330781747 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-I SEC ACT: 1934 Act SEC FILE NUMBER: 005-53869 FILM NUMBER: 1703240 BUSINESS ADDRESS: STREET 1: 17140 BERNARDO CENTER DR STREET 2: SUITE 300 CITY: SAN DIEGO STATE: CA ZIP: 92128 BUSINESS PHONE: 8586759400 MAIL ADDRESS: STREET 1: 16955 VIA DEL CAMPO STREET 2: SUITE 100 CITY: SAN DIEGO STATE: CA ZIP: 92127 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: PRICE ENTERPRISES INC CENTRAL INDEX KEY: 0000929647 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 330628740 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-I BUSINESS ADDRESS: STREET 1: 4649 MORENA BLVD CITY: SAN DIEGO STATE: CA ZIP: 92117 BUSINESS PHONE: 6195814679 MAIL ADDRESS: STREET 1: 4649 MORENA BLVD CITY: SAN DIEGO STATE: CA ZIP: 92117 SC TO-I 1 a2055822zscto-i.txt SCHEDULE TO-I SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE TO TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR SECTION 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 EXCEL LEGACY CORPORATION (NAME OF SUBJECT COMPANY (ISSUER)) PRICE ENTERPRISES, INC. (NAME OF FILING PERSON (OFFEROR)) 9% CONVERTIBLE REDEEMABLE SUBORDINATED SECURED DEBENTURES DUE 2004 10% SENIOR REDEEMABLE SECURED NOTES DUE 2004 (TITLES OF CLASSES OF SECURITIES) 300665AA4 (DEBENTURES) 300665AB2 (NOTES) (CUSIP NUMBERS OF CLASSES OF SECURITIES) GARY B. SABIN CHIEF EXECUTIVE OFFICER PRICE ENTERPRISES, INC. 17140 BERNARDO CENTER DRIVE, SUITE 300 SAN DIEGO, CALIFORNIA 92128 (858) 675-9400 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF THE FILING PERSON(S)) COPIES TO: SCOTT N. WOLFE, ESQ. SIMON M. LORNE, ESQ. CRAIG M. GARNER, ESQ. MARY ANN LYMAN, ESQ. LATHAM & WATKINS MUNGER TOLLES & OLSON LLP 12636 HIGH BLUFF DRIVE, SUITE 300 355 SOUTH GRAND AVENUE, 35TH FLOOR SAN DIEGO, CALIFORNIA 92130 LOS ANGELES, CALIFORNIA 90071 (858) 523-5400 (213) 683-9100 CALCULATION OF FILING FEE TRANSACTION VALUATION* AMOUNT OF FILING FEE --------------------- -------------------- $51,307,000 $10,262 * Estimated solely for the purpose of calculating the registration fee required by the Securities Exchange Act of 1934, as amended. This fee has been computed pursuant to Rules 0-11(a)(4) and 0-11(b)(2) under the Exchange Act and is based upon 100% of the outstanding principal amount of the Legacy Debentures and Legacy Notes as of August 3, 2001. [x] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the form or schedule and the date of its filing. Amount Previously Paid: $12,827 Filing party: Price Enterprises, Inc. Form or Registration No.: 333-61622 Date Filed: May 25, 2001 [ ] Check box if filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: [ ] third-party tender offer subject to Rule 14d-1 [ ] going private transaction subject to Rule 13e-3 [x] issuer tender offer subject to Rule 13e-4 [ ] amendment to Schedule 13D under Rule 13d-2 Check the following box if the filing is a final amendment reporting the results of the tender offer [ ] This Tender Offer Statement on Schedule TO relates to the offer by Price Enterprises, Inc., a Maryland corporation ("Enterprises"), to exchange shares of its 8 3/4% Series A Cumulative Redeemable Preferred Stock, par value $0.0001 per share (the "Enterprises Series A Preferred Stock"), for all outstanding 9% Convertible Redeemable Subordinated Secured Debentures due 2004 (the "Legacy Debentures") and 10% Senior Redeemable Secured Notes due 2004 (the "Legacy Notes") of Excel Legacy Corporation, a Delaware corporation ("Legacy"), upon the terms and subject to the conditions set forth in the Consent Solicitation Statement/Prospectus dated August 7, 2001 and in the related consent and letter of transmittal (which, as amended or supplemented from time to time, together constitute the "Exchange Offer"). The Legacy Debentures and Legacy Notes will be valued at par and the Enterprises Series A Preferred Stock will be valued at $15.00 per share for purposes of the Exchange Offer, and each $1,000 in principal amount of Legacy Debentures and Legacy Notes tendered will be exchanged for 66.67 shares of the Enterprises Series A Preferred Stock. This Tender Offer Statement on Schedule TO is intended to satisfy the reporting requirements of Rule 13e-4(c)(2) of the Securities Exchange Act of 1934, as amended. ITEM 1. SUMMARY TERM SHEET. The information set forth in the section entitled "Summary Term Sheet" of the Consent Solicitation Statement/Prospectus is incorporated herein by reference. ITEM 2. SUBJECT COMPANY INFORMATION The name of the subject company is Excel Legacy Corporation, a Delaware corporation. The information set forth in the section entitled "Summary," "The Exchange Offer and Consent Solicitation" and "Information About Legacy" of the Consent Solicitation Statement/Prospectus is incorporated herein by reference. ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON. The name of the filing person is Price Enterprises, Inc., a Maryland corporation. The information set forth in the sections entitled "Information About Enterprises," "Information About Legacy," "Securities Ownership of Certain Beneficial Owners and Management of Enterprises" and "Securities Ownership of Certain Beneficial Owners and Management of Legacy" of the Consent Solicitation Statement/Prospectus is incorporated herein by reference. Unless otherwise indicated, the current business address of each filing person and person listed under General Instruction C to Schedule TO is 17140 Bernardo Center Drive, Suite 300, San Diego, California 92128. ITEM 4. TERMS OF THE TRANSACTION. The information set forth in the sections entitled "Summary Term Sheet," "Questions and Answers About the Transactions," "Summary," "The Exchange Offer and Consent Solicitation," "Material United States Federal Income Tax Considerations of the Exchange Offer," "Material United States Federal Income Tax Consequences Related to Price Legacy," "Description of Enterprises Capital Stock" and "Comparison of Stockholder Rights" of the Consent Solicitation Statement/Prospectus is incorporated herein by reference. ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS. The information set forth in the sections entitled "Background and Reasons for the Transactions," "The Exchange Offer and Consent Solicitation," "The Merger, the Sale of the Enterprises Series B Preferred Stock and Related Transactions" and "Information About Legacy" of the Consent Solicitation Statement/Prospectus is incorporated herein by reference. ITEM 6. PURPOSE OF THE TRANSACTION AND PLANS OR PROPOSALS. The information set forth in the sections entitled "Background and Reasons for the Transactions," "The Merger, the Sale of the Enterprises Series B Preferred Stock and Related Transactions," "Information About Enterprises," "Information About Legacy," "Material United States Federal Income Tax Consequences Related to Price Legacy," "Description of Enterprises Capital Stock" and "Comparison of Stockholder Rights" of the Consent Solicitation Statement/Prospectus is incorporated herein by reference. 1 ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. The total amount of funds or other consideration required by Enterprises to complete the Exchange Offer is approximately 3,420,636 shares of Enterprises Series A Preferred Stock (consisting of approximately 2,216,110 shares in exchange for Legacy Debentures and approximately 1,204,526 shares in exchange for Legacy Notes) and approximately $500,000, assuming all outstanding Legacy Debentures and Legacy Notes are tendered and exchanged pursuant to the Exchange Offer, in cash for accrued and unpaid interest and expenses, which will be paid from the cash assets of Enterprises. ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY. The information set forth in the section entitled "The Exchange Offer and Consent Solicitation" of the Consent Solicitation Statement/Prospectus is incorporated herein by reference. The following table sets forth certain information regarding the ownership of Legacy Debentures and Legacy Notes as of August 3, 2001 by Enterprises' and Legacy's directors and executive officers, all of Enterprises' and Legacy's directors and executive officers as a group and all other stockholders known by Legacy to beneficially own more than five percent in principal amount of the Legacy Debentures or Legacy Notes.
PRINCIPAL AMOUNT OF PERCENT PRINCIPAL AMOUNT OF PERCENT LEGACY DEBENTURES OF TOTAL LEGACY NOTES OF TOTAL NAME(1) BENEFICIALLY OWNED ($) (%) BENEFICIALLY OWNED ($) (%) ------- ---------------------- --- ---------------------- -------- Robert Price(2)(3) 7,318,000 22.0 3,992,000 22.1 Sol Price(2)(4) 6,288,000 18.9 3,429,000 19.0 James Cahill(2)(5) 472,000 1.4 254,000 1.4 Murray Galinson(2)(6) 371,000 1.1 202,000 1.1 Jack McGrory(2) 123,000 * 67,000 * Gary B. Sabin -- * -- * Richard B. Muir -- * -- * S. Eric Ottesen -- * -- * James Y. Nakagawa -- * -- * Graham R. Bullick, Ph.D -- * -- * Mark T. Burton -- * -- * John A. Visconsi -- * -- * William J. Stone -- * -- * Susan M. Wilson -- * -- * John H. Wilmot -- * -- * Richard J. Nordlund -- * -- * Robert S. Talbott -- * -- * Robert E. Parsons, Jr. -- * -- * All executive officers and directors as a group (17 persons) 774,000 2.3 419,000 2.3
* Less than 1% beneficially owned. (1) The address for all persons listed, other than James F. Cahill, Jack McGrory, Robert E. Price and Sol Price is 17140 Bernardo Center Drive, Suite 300, San Diego, California 92128. The address for James F. Cahill, Jack McGrory, Robert E. Price and Sol Price is c/o The Price Entities, 7979 Ivanhoe Avenue, Suite 520, La Jolla, California 92037. (2) Sol Price, Robert E. Price, James F. Cahill, Murray Galinson and Jack McGrory are directors of The Price Family Charitable Fund. As such, for purposes of this table, they are each deemed to beneficially own $96,000 in principal amount of Legacy Debentures and $52,000 in principal amount of Legacy Notes held by the Charitable Fund. Each of Sol Price, Robert E. Price, James F. Cahill, Murray Galinson and Jack McGrory has shared voting and dispositive power with respect to, and disclaims beneficial ownership of, the Legacy Debentures and Legacy Notes held by the Charitable Fund. 2 (3) Includes $7,220,000 in principal amount of Legacy Debentures and $3,939,000 in principal amount of Legacy Notes held by trusts of which Robert E. Price is a trustee. Mr. Price has shared voting and dispositive power with respect to such Legacy Debentures and Legacy Notes. Also includes $2,000 in principal amount of Legacy Debentures and $1,000 in principal amount of Legacy Notes held by Mr. Price as custodian of his minor children under the California Uniform Transfer to Minors Act, or the CUTMA. (4) Includes $6,192,000 in principal amount of Legacy Debentures and $3,377,000 in principal amount of Legacy Notes held by The Price Family Charitable Trust of which Sol Price is the sole trustee, and as to which Sol Price has sole voting and dispositive power. (5) Includes $185,000 in principal amount of Legacy Debentures and $98,000 in principal amount of Legacy Notes held by trusts of which Mr. Cahill is a trustee. Mr. Cahill has shared voting and dispositive power with respect to, and disclaims beneficial ownership of, the Legacy Debentures and Legacy Notes held by the trusts. (6) Includes $275,000 in principal amount of Legacy Debentures and $150,000 in principal amount of Legacy Notes held by Galinson Holdings. Mr. Galinson disclaims beneficial ownership of such Legacy Debentures and Legacy Notes. Based on Enterprises' records and on information provided to Enterprises by its directors, executive offers, affiliates and subsidiaries, neither Enterprises nor any of its affiliates or subsidiaries nor, to the best of Enterprises' knowledge, any of the directors or executive officers of Enterprises or any of its subsidiaries, nor any associates or subsidiaries of any of the foregoing, has effected any transactions involving the Legacy Debentures or Legacy Notes during the 60 days prior to the date of this Schedule TO. ITEM 9. PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED. Neither Enterprises nor any person acting on its behalf has or currently intends to employ, retain or compensate any person to make solicitations or recommendations to the holders of Legacy Debentures or Legacy Notes with respect to the Exchange Offer. ITEM 10. FINANCIAL STATEMENTS. The information set forth in the sections entitled "Summary--Selected Summary Historical and Selected Unaudited Pro Forma Financial Data," "Summary--Comparative Per Share Data," "Summary--Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends" and "Unaudited Pro Forma Operating and Financial Information" of the Consent Solicitation Statement/Prospectus is incorporated herein by reference. ITEM 11. ADDITIONAL INFORMATION. The information set forth in the section entitled "The Exchange Offer and Consent Solicitation" and the entire Consent Solicitation Statement/Prospectus is incorporated herein by reference. ITEM 12. EXHIBITS. (a)(1)(i) Letter of Transmittal. (a)(1)(ii) Notice of Guaranteed Delivery. (a)(1)(iii) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. (a)(1)(iv) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. 3 (a)(1)(v) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (a)(2) Not applicable. (a)(3) Not applicable. (a)(4) Consent Solicitation Statement/Prospectus of Enterprises (incorporated by reference to Enterprises' Registration Statement on Form S-4 (File No. 333-61622) filed with the SEC on May 25, 2001, as amended by Amendment No. 1 to Form S-4 filed July 6, 2001 and Amendment No. 2 to Form S-4 filed July 31, 2001). (a)(5)(i) Summary Advertisement dated August 10, 2001. (a)(5)(ii) Press Release dated August 10, 2001. (a)(5)(iii) Letter to Debtholders of Legacy from Gary B. Sabin, President and Chief Executive Officer of Legacy, dated August 10, 2001 (incorporated by reference to Legacy's Solicitation/Recommendation Statement on Schedule 14D-9 filed with the SEC on August 10, 2001). (b) Not applicable. (d)(1) Agreement and Plan of Merger, dated as of March 21, 2001, by and among Enterprises, PEI Merger Sub, Inc. and Legacy (incorporated by reference to Enterprises' Current Report on Form 8-K filed with the SEC on March 23, 2001). (d)(2) Form of Stockholder Agreement, dated as of March 21, 2001, between Enterprises and certain stockholders of Legacy (incorporated by reference to Enterprises' Current Report on Form 8-K filed with the SEC on March 23, 2001). (d)(3) Form of Stock Purchase Agreement dated as of September 25, 2000 by and between Legacy and each of Richard B. Muir, Graham R. Bullick, S. Eric Ottesen, and Mark T. Burton (incorporated by reference to Legacy's Quarterly Report on Form 10-Q (File No. 0-23503) filed with the SEC on November 9, 2000). (d)(4) Form of Loan Assumption Agreement dated as of September 25, 2000 by and between Legacy and each of Richard B. Muir, Graham R. Bullick, S. Eric Ottesen, and Mark T. Burton (incorporated by reference to Legacy's Quarterly Report on Form 10-Q (File No. 0-23503) filed with the SEC on November 9, 2000). (d)(5) Form of Supplemental Indenture between Legacy and Wells Fargo Bank Minnesota, N.A. with respect to the 9.0% Convertible Redeemable Subordinated Secured Debentures due 2004 (filed as an Annex to the Consent Solicitation Statement/Prospectus constituting part of Enterprises' Registration Statement on Form S-4 (File No. 333-61622) filed with the SEC on May 25, 2001, as amended by Amendment No. 1 to Form S-4 filed July 6, 2001 and Amendment No. 2 to Form S-4 filed July 31, 2001, and incorporated herein by reference). (d)(6) Form of Supplemental Indenture between Legacy and Wells Fargo Bank Minnesota, N.A. with respect to the 10.0% Senior Redeemable Secured Notes due 2004 (filed as an Annex to the Consent 4 Solicitation Statement/Prospectus constituting part of Enterprises' Registration Statement on Form S-4 (File No. 333-61622) filed with the SEC on May 25, 2001, as amended by Amendment No. 1 to Form S-4 filed July 6, 2001 and Amendment No. 2 to Form S-4 filed July 31, 2001, and incorporated herein by reference). (d)(7) Indenture, dated as of November 5, 1999, between Legacy and Wells Fargo Bank Minnesota, N.A. for 9.0% Convertible Redeemable Subordinated Secured Debentures due 2004, including form of Debenture and form of Pledge Agreement (incorporated by reference to Legacy's Current Report on Form 8-K (File No. 0-23503) filed with the SEC on November 12, 1999). (d)(8) Indenture, dated as of November 5, 1999, between Legacy and Wells Fargo Bank Minnesota, N.A. for 10.0% Senior Redeemable Secured Notes due 2004, including form of Note and form of Pledge Agreement (incorporated by reference to Legacy's Current Report on Form 8-K (File No. 0-23503) filed with the SEC on November 12, 1999). (g) Not applicable. (h) Not applicable. 5 SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: August 10, 2001 PRICE ENTERPRISES, INC. By: /s/ GARY B. SABIN ---------------------------------- Name: Gary B. Sabin Title: President and Chief Executive Officer 6 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION ------ ----------- (a)(1)(i) Letter of Transmittal. (a)(1)(ii) Notice of Guaranteed Delivery. (a)(1)(iii) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. (a)(1)(iv) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. (a)(1)(v) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (a)(2) Not applicable. (a)(3) Not applicable. (a)(4) Consent Solicitation Statement/Prospectus of Enterprises (incorporated by reference to Enterprises' Registration Statement on Form S-4 (File No. 333-61622) filed with the SEC on May 25, 2001, as amended by Amendment No. 1 to Form S-4 filed July 6, 2001 and Amendment No. 2 to Form S-4 filed July 31, 2001). (a)(5)(i) Summary Advertisement dated August 10, 2001. (a)(5)(ii) Press Release dated August 10, 2001. (a)(5)(iii) Letter to Debtholders of Legacy from Gary B. Sabin, President and Chief Executive Officer of Legacy, dated August 10, 2001 (incorporated by reference to Legacy's Solicitation/Recommendation Statement on Schedule 14D-9 filed with the SEC on August 10, 2001). (b) Not applicable. 7 (d)(1) Agreement and Plan of Merger, dated as of March 21, 2001, by and among Enterprises, PEI Merger Sub, Inc. and Legacy (incorporated by reference to Enterprises' Current Report on Form 8-K filed with the SEC on March 23, 2001). (d)(2) Form of Stockholder Agreement, dated as of March 21, 2001, between Enterprises and certain stockholders of Legacy (incorporated by reference to Enterprises' Current Report on Form 8-K filed with the SEC on March 23, 2001). (d)(3) Form of Stock Purchase Agreement dated as of September 25, 2000 by and between Legacy and each of Richard B. Muir, Graham R. Bullick, S. Eric Ottesen, and Mark T. Burton (incorporated by reference to Legacy's Quarterly Report on Form 10-Q (File No. 0-23503) filed with the SEC on November 9, 2000). (d)(4) Form of Loan Assumption Agreement dated as of September 25, 2000 by and between Legacy and each of Richard B. Muir, Graham R. Bullick, S. Eric Ottesen, and Mark T. Burton (incorporated by reference to Legacy's Quarterly Report on Form 10-Q (File No. 0-23503) filed with the SEC on November 9, 2000). (d)(5) Form of Supplemental Indenture between Legacy and Wells Fargo Bank Minnesota, N.A. with respect to the 9.0% Convertible Redeemable Subordinated Secured Debentures due 2004 (filed as an Annex to the Consent Solicitation Statement/Prospectus constituting part of Enterprises' Registration Statement on Form S-4 (File No. 333-61622) filed with the SEC on May 25, 2001, as amended by Amendment No. 1 to Form S-4 filed July 6, 2001 and Amendment No. 2 to Form S-4 filed July 31, 2001, and incorporated herein by reference). (d)(6) Form of Supplemental Indenture between Legacy and Wells Fargo Bank Minnesota, N.A. with respect to the 10.0% Senior Redeemable Secured Notes due 2004 (filed as an Annex to the Consent Solicitation Statement/Prospectus constituting part of Enterprises' Registration Statement on Form S-4 (File No. 333-61622) filed with the SEC on May 25, 2001, as amended by Amendment No. 1 to Form S-4 filed July 6, 2001 and Amendment No. 2 to Form S-4 filed July 31, 2001, and incorporated herein by reference). (d)(7) Indenture, dated as of November 5, 1999, between Legacy and Wells Fargo Bank Minnesota, N.A. for 9.0% Convertible Redeemable Subordinated Secured Debentures due 2004, including form of Debenture and form of Pledge Agreement (incorporated by reference to Legacy's Current Report on Form 8-K (File No. 0-23503) filed with the SEC on November 12, 1999). (d)(8) Indenture, dated as of November 5, 1999, between Legacy and Wells Fargo Bank Minnesota, N.A. for 10.0% Senior Redeemable Secured Notes due 2004, including form of Note and form of Pledge Agreement (incorporated by reference to Legacy's Current Report on Form 8-K (File No. 0-23503) filed with the SEC on November 12, 1999). (g) Not applicable. (h) Not applicable. 8 EX-99.(A)(1)(I) 3 a2055822zex-99_a1i.txt EXHIBIT 99(A)(1)(I) EXHIBIT (a)(1)(i) PRICE ENTERPRISES, INC. CONSENT AND LETTER OF TRANSMITTAL OFFER TO EXCHANGE SHARES OF 8 3/4% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK OF PRICE ENTERPRISES, INC. FOR ANY AND ALL OUTSTANDING 9% CONVERTIBLE REDEEMABLE SUBORDINATED SECURED DEBENTURES DUE 2004 AND 10% SENIOR REDEEMABLE SECURED NOTES DUE 2004 OF EXCEL LEGACY CORPORATION AND SOLICITATION OF CONSENTS FOR AMENDMENT OF THE RELATED INDENTURES - -------------------------------------------------------------------------------- THE EXCHANGE OFFER AND SOLICITATION OF CONSENTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON SEPTEMBER 11, 2001, UNLESS EXTENDED (SUCH DATE, AS THE SAME MAY BE EXTENDED, THE "EXPIRATION DATE") OR EARLIER TERMINATED. HOLDERS WHO DESIRE TO RECEIVE THE EXCHANGE OFFER CONSIDERATION MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR LEGACY DEBENTURES AND LEGACY NOTES PURSUANT TO THE EXCHANGE OFFER AND CONSENT TO THE PROPOSED AMENDMENTS ON OR PRIOR TO THE EXPIRATION DATE. HOLDERS WHO TENDER THEIR LEGACY DEBENTURES AND LEGACY NOTES IN THE EXCHANGE OFFER ARE REQUIRED TO CONSENT TO THE PROPOSED AMENDMENTS. AS A RESULT, HOLDERS WHO TENDER THEIR LEGACY DEBENTURES AND LEGACY NOTES WILL BE DEEMED TO HAVE CONSENTED TO THE PROPOSED AMENDMENTS WITH RESPECT TO THE SECURITIES TENDERED. HOLDERS WHO DESIRE ONLY TO CONSENT TO THE PROPOSED AMENDMENTS WILL NOT RECEIVE THE EXCHANGE OFFER CONSIDERATION, AND NEED ONLY VALIDLY CONSENT TO THE PROPOSED AMENDMENTS ON OR PRIOR TO THE EXPIRATION DATE. - -------------------------------------------------------------------------------- List below the Legacy Debentures and Legacy Notes to which this Consent and Letter of Transmittal relates. If the space provided below is inadequate, list the certificate numbers and principal amounts on a separately executed schedule and affix the schedule to this Consent and Letter of Transmittal. Tenders of Legacy Debentures and Legacy Notes will be accepted only in principal amounts equal to $1,000 or integral multiples thereof.
- ------------------------------------------------------------------------------------------------------------------------------- DESCRIPTION OF LEGACY DEBENTURES TENDERED - ------------------------------------------------------------------------------------------------------------------------------- PRINCIPAL AMOUNT TENDERED AND AS TO PRINCIPAL AMOUNT AGGREGATE WHICH RELATED AS TO WHICH ONLY NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) CERTIFICATE PRINCIPAL AMOUNT CONSENTS ARE RELATED CONSENTS (PLEASE FILL IN, IF BLANK) NUMBER(S)* REPRESENTED** GIVEN** ARE GIVEN*** - ------------------------------------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------- TOTAL PRINCIPAL AMOUNT OF LEGACY DEBENTURES - ------------------------------------------------------------------------------------------------------------------------------- * Need not be completed by Holders who tender by book-entry transfer (see below). ** Legacy Debentures tendered by this Consent and Letter of Transmittal must be in a minimum principal amount of $1,000. Unless otherwise indicated in the column labeled "Principal Amount Tendered And As To Which Related Consents Are Given" and subject to the terms and conditions of the Consent Solicitation Statement/Prospectus, a Holder will be deemed to have tendered the entire aggregate principal amount represented by the Legacy Debentures indicated in the column labeled "Aggregate Principal Amount Represented." See Instruction 5. *** Any principal amount indicated in the column labeled "Principal Amount Tendered And As To Which Related Consents Are Given" will be deemed to include a Consent to the Proposed Amendments notwithstanding any contrary entry in this column. - -------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------- DESCRIPTION OF LEGACY NOTES TENDERED - ------------------------------------------------------------------------------------------------------------------------------- PRINCIPAL AMOUNT TENDERED AND AS TO PRINCIPAL AMOUNT AGGREGATE WHICH RELATED AS TO WHICH ONLY NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) CERTIFICATE PRINCIPAL AMOUNT CONSENTS ARE RELATED CONSENTS (PLEASE FILL IN, IF BLANK) NUMBER(S)* REPRESENTED** GIVEN** ARE GIVEN*** - ------------------------------------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------- TOTAL PRINCIPAL AMOUNT OF LEGACY NOTES - ------------------------------------------------------------------------------------------------------------------------------- * Need not be completed by Holders who tender by book-entry transfer (see below). ** Legacy Notes tendered by this Consent and Letter of Transmittal must be in a minimum principal amount of $1,000. Unless otherwise indicated in the column labeled "Principal Amount Tendered And As To Which Related Consents Are Given" and subject to the terms and conditions of the Consent Solicitation Statement/Prospectus, a Holder will be deemed to have tendered the entire aggregate principal amount represented by the Legacy Notes indicated in the column labeled "Aggregate Principal Amount Represented." See Instruction 5. *** Any principal amount indicated in the column labeled "Principal Amount Tendered And As To Which Related Consents Are Given" will be deemed to include a Consent to the Proposed Amendments notwithstanding any contrary entry in this column. - -------------------------------------------------------------------------------------------------------------------------------
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER AND THE CONSENT SOLICITATION IS: MELLON INVESTOR SERVICES LLC BY MAIL: BY HAND: BY OVERNIGHT DELIVERY: Reorganization Department Reorganization Department Reorganization Department PO Box 3301 120 Broadway 85 Challenger Road South Hackensack, NJ 07606 13th Floor Mail Stop--Reorg New York, NY 10271 Ridgefield Park, NJ 07660
DELIVERY OF THIS CONSENT AND LETTER OF TRANSMITTAL TO AN ADDRESS, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE VALID DELIVERY. The instructions contained herein and in the Exchange Offer (as defined below) should be read carefully before this Consent and Letter of Transmittal is completed. HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE THE EXCHANGE OFFER CONSIDERATION PURSUANT TO THE EXCHANGE OFFER AND CONSENT SOLICITATION MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR LEGACY DEBENTURES AND LEGACY NOTES AND CONSENT TO THE PROPOSED AMENDMENTS ON OR PRIOR TO THE EXPIRATION DATE. HOLDERS WHO TENDER THEIR LEGACY DEBENTURES AND LEGACY NOTES IN THE EXCHANGE OFFER ARE REQUIRED TO CONSENT TO THE PROPOSED AMENDMENTS. AS A RESULT, HOLDERS WHO TENDER THEIR LEGACY DEBENTURES AND LEGACY NOTES WILL BE DEEMED TO HAVE CONSENTED TO THE PROPOSED AMENDMENTS WITH RESPECT TO THE SECURITIES TENDERED. HOLDERS WHO DESIRE ONLY TO CONSENT TO THE PROPOSED AMENDMENTS WILL NOT RECEIVE THE EXCHANGE OFFER CONSIDERATION, AND NEED ONLY VALIDLY CONSENT TO THE PROPOSED AMENDMENTS ON OR PRIOR TO THE EXPIRATION DATE. / / CHECK HERE IF TENDERED LEGACY DEBENTURES AND LEGACY NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING: Name of Tendering Institution: ____________________________________________ Account Number with DTC: __________________________________________________ Transaction Code Number: __________________________________________________ 2 / / CHECK HERE IF TENDERED LEGACY DEBENTURES AND LEGACY NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY DELIVERED TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING: Name of Registered Holder(s): _____________________________________________ Window Ticket No. (if any): _______________________________________________ Date of Execution of Notice of Guaranteed Delivery: _______________________ Name of Eligible Institution that Guaranteed Delivery: ____________________ If Delivered by Book-Entry Transfer: ______________________________________ Account Number with DTC: __________________________________________________ Transaction Code Number: __________________________________________________ By the execution hereof, the undersigned acknowledges receipt of the Consent Solicitation Statement/ Prospectus, dated August 7, 2001 (as the same may be amended from time to time, the "Consent Solicitation Statement/Prospectus") of Price Enterprises, Inc., a Maryland corporation ("Enterprises"), this Consent and Letter of Transmittal and instructions hereto (the "Consent and Letter of Transmittal" and, together with the Consent Solicitation Statement/Prospectus, the "Exchange Offer"). The Exchange Offer consists of (i) Enterprises' offer to exchange shares of 8 3/4% Series A Cumulative Redeemable Preferred Stock of Enterprises (the "Enterprises Series A Preferred Stock") for any and all of the outstanding 9% Convertible Redeemable Subordinated Secured Debentures due 2004 (the "Legacy Debentures") and 10% Senior Redeemable Secured Notes due 2004 (the "Legacy Notes") of Excel Legacy Corporation, a Delaware corporation (the "Issuer"), upon the terms and subject to the conditions set forth in the Consent Solicitation Statement/Prospectus, and (ii) Enterprises' solicitation (the "Consent Solicitation") of consents (the "Consents") from each holder (each a "Holder" and, collectively, the "Holders") of Legacy Debentures and Legacy Notes to certain proposed amendments (the "Proposed Amendments") to the respective indentures, dated as of November 5, 1999, between Legacy and Wells Fargo Bank Minnesota, N.A. (the "Trustee"), which govern the Legacy Debentures and Legacy Notes (the "Indentures"). Holders who tender Legacy Debentures and Legacy Notes under this Consent and Letter of Transmittal on or prior to the Expiration Date will be deemed to consent to the Proposed Amendments. This Consent and Letter of Transmittal is to be used by Holders if (i) certificates representing Legacy Debentures and Legacy Notes are to be physically delivered to the Exchange Agent herewith by Holders, (ii) tender of Legacy Debentures and Legacy Notes is to be made by book-entry transfer to the Exchange Agent's account at The Depository Trust Company ("DTC") pursuant to the procedures set forth in the Consent Solicitation Statement/Prospectus under "The Exchange Offer and Consent Solicitation--Procedures for Exchanging Legacy Debentures and Legacy Notes and Delivering Consents--Tender of Legacy Debentures and Legacy Notes Held Through DTC" by any financial institution that is a participant in DTC and whose name appears on a security position listing as the owner of Legacy Debentures and Legacy Notes, unless such tender is made after the Expiration Date, and an Agent's Message (as described in the Consent Solicitation Statement/ Prospectus) is delivered in connection with such book-entry transfer or (iii) tender of Legacy Debentures and Legacy Notes is to be made according to the guaranteed delivery procedures set forth in the Consent Solicitation Statement/Prospectus under "The Exchange Offer and Consent Solicitation--Procedures for Exchanging Legacy Debentures and Legacy Notes and Delivering Consents--Guaranteed Delivery." Delivery of documents to DTC does not constitute delivery to the Exchange Agent. The undersigned has completed, executed and delivered this Consent and Letter of Transmittal to indicate the action the undersigned desires to take with respect to the Exchange Offer and Consent Solicitation. The instructions included with this Consent and Letter of Transmittal must be followed. Questions and requests for assistance or for additional copies of the Consent Solicitation Statement/Prospectus, this Consent and Letter of Transmittal and the Notice of Guaranteed Delivery must be directed to Mellon Investor Services LLC in its capacity as the information agent (the "Information Agent") at the address and telephone number set forth on the last page of this Consent and Letter of Transmittal. See Instruction 13 below. Holders that are tendering by book-entry transfer to the Exchange Agent's account at DTC can execute the tender through the DTC Automated Tender Offer Program ("ATOP"), for which the transaction will be eligible. DTC participants that are accepting the Exchange Offer must transmit their acceptance to DTC, which will verify the acceptance and execute a book-entry delivery to the DTC account of Mellon Investor Services LLC in its capacity as the exchange agent (the "Exchange Agent"). DTC will then send an Agent's Message to the Exchange 3 Agent for its acceptance. DTC participants may also accept the Exchange Offer by delivering a Notice of Guaranteed Delivery to the Exchange Agent. To validly deliver a Consent with respect to Legacy Debentures and Legacy Notes transferred pursuant to ATOP on or prior to the Expiration Date (and thereby make a valid tender), a DTC participant using ATOP must also properly complete and duly execute a Consent and Letter of Transmittal and timely deliver it to the Exchange Agent. Pursuant to authority granted by DTC, any DTC participant which has Legacy Debentures and Legacy Notes credited to its DTC account at any time (and thereby held of record by DTC's nominee) may directly provide a Consent to the Proposed Amendments as though it were a registered Holder by so completing, executing and delivering this Consent and Letter of Transmittal. If a Holder desires to tender Legacy Debentures and Legacy Notes pursuant to the Exchange Offer and (i) certificates representing such Legacy Debentures and Legacy Notes are not immediately available, (ii) time will not permit such Holder's Consent and Letter of Transmittal, certificates representing such Legacy Debentures and Legacy Notes and all other required documents to reach the Exchange Agent on or prior to the Expiration Date or (iii) the procedures for book-entry transfer (including delivery of an Agent's Message) cannot be completed on or prior to the Expiration Date, such Holder may nevertheless tender such Legacy Debentures and Legacy Notes with the effect that such tender will be deemed to have been received on or prior to the Expiration Date. Holders may effect such a tender of Legacy Debentures and Legacy Notes in accordance with the guaranteed delivery procedures set forth in the Consent Solicitation Statement/Prospectus under "The Exchange Offer and Consent Solicitation--Procedures for Exchanging Legacy Debentures and Legacy Notes and Delivering Consents--Guaranteed Delivery." See Instruction 2 below. 4 NOTE: SIGNATURES MUST BE PROVIDED BELOW PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY Ladies and Gentlemen: Upon the terms and subject to the conditions of the Exchange Offer and Consent Solicitation, the undersigned hereby tenders to Enterprises the principal amount of Legacy Debentures and Legacy Notes indicated above and consents to the Proposed Amendments with respect to the Legacy Debentures and Legacy Notes indicated above. Subject to, and effective upon, the acceptance for exchange of the principal amount of Legacy Debentures and Legacy Notes tendered with this Consent and Letter of Transmittal, the undersigned hereby assigns and transfers to, or upon the order of, Enterprises, all right, title and interest in and to the Legacy Debentures and Legacy Notes that are being tendered hereby, waives any and all other rights with respect to the Legacy Debentures and Legacy Notes (including without limitation, any existing or past defaults and their consequences in respect of the Legacy Debentures and Legacy Notes and the Indentures under which the Legacy Debentures and Legacy Notes, respectively, were issued) and releases and discharges Enterprises from any and all claims such Holders may have now, or may have in the future, arising out of, or related to, the Legacy Debentures and Legacy Notes, including without limitation, any claims that such Holder is entitled to receive additional principal or interest payments with respect to the Legacy Debentures and Legacy Notes or to participate in any redemption or defeasance of the Legacy Debentures and Legacy Notes, and also consents to the Proposed Amendments. The undersigned hereby irrevocably constitutes and appoints the Exchange Agent true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the Exchange Agent also acts as the agent of Enterprises) with respect to such Legacy Debentures and Legacy Notes, with full power of substitution and resubstitution (such power-of-attorney being deemed to be an irrevocable power coupled with an interest) to (i) present such Legacy Debentures and Legacy Notes and all evidences of transfer and authenticity to, or transfer of ownership of, such Legacy Debentures and Legacy Notes on the account books maintained by DTC to, or upon the order of, Enterprises, (ii) present such Legacy Debentures and Legacy Notes for transfer, and to transfer ownership on the books of Enterprises, (iii) receive all benefits and otherwise exercise all rights of beneficial ownership of such Legacy Debentures and Legacy Notes and (iv) deliver to Enterprises, the Issuer and the Trustee this Consent and Letter of Transmittal on or prior to the Expiration Date as evidence of the undersigned's Consent to the Proposed Amendments and as certification that validly tendered and not revoked Consents from the holders of at least a majority in aggregate principal amount of Legacy Debentures and Legacy Notes outstanding (the "Requisite Consents") to the Proposed Amendments, duly executed by Holders of such Legacy Debentures and Legacy Notes, have been received, all in accordance with the terms and conditions of the Exchange Offer and Consent Solicitation as described in the Consent Solicitation Statement/Prospectus. Valid execution and delivery of this Consent and Letter of Transmittal on or prior to the Expiration Date will also be deemed to constitute a Consent to the Proposed Amendments with respect to the Legacy Debentures and Legacy Notes indicated above. The undersigned agrees and acknowledges that, by the execution and delivery hereof, the undersigned makes and provides the written Consent, with respect to the Legacy Debentures and Legacy Notes tendered hereby or as otherwise indicated above, to the Proposed Amendments as permitted by Article 9 of the Indentures if this Consent and Letter of Transmittal is executed and delivered on or prior to the Expiration Date. The undersigned understands that the Consent provided hereby shall remain in full force and effect until such Consent is revoked in accordance with the procedures set forth in the Consent Solicitation Statement/Prospectus and this Consent and Letter of Transmittal, which procedures are hereby agreed to be applicable in lieu of any and all other procedures for revocation set forth in the Indentures, which are hereby waived. The Proposed Amendments will be embodied in amendments to the Indentures in the form set forth in supplemental indentures (as described in the Consent Solicitation Statement/Prospectus). The supplemental indentures will become effective upon execution by the Issuer, at Enterprises direction, and the Trustee promptly after the Expiration Date. The undersigned understands that the Proposed Amendments will not become effective until the Legacy Debentures and Legacy Notes are accepted for exchange by Enterprises pursuant to the Exchange Offer. The undersigned understands that tenders of Legacy Debentures and Legacy Notes may be withdrawn or Consents revoked, as the case may be, by written notice of withdrawal or revocation received by the Exchange Agent at any time on or prior to the Expiration Date, but the Exchange Offer consideration (as such term is described in the Consent Solicitation Statement/Prospectus) shall not be payable in respect of Legacy Debentures and Legacy Notes so withdrawn. Holders may deliver Consents without tendering their Legacy Debentures and Legacy Notes in the Exchange Offer. If Holders deliver Consents and tender their Legacy Debentures and Legacy 5 Notes, Holders may not revoke Consents on or prior to the Expiration Date without withdrawing the previously tendered Legacy Debentures and Legacy Notes to which such Consents relate. The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, assign and transfer the Legacy Debentures and Legacy Notes tendered hereby and to give the Consent contained herein, and that when such Legacy Debentures and Legacy Notes are accepted for exchange by Enterprises, Enterprises will acquire good title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim or right. The undersigned will, upon request, execute and deliver any additional documents deemed by the Exchange Agent or Enterprises to be necessary or desirable to complete the assignment and transfer of the Legacy Debentures and Legacy Notes tendered hereby, to perfect the undersigned's Consent to the Proposed Amendments and to complete the execution of the supplemental indentures reflecting such Proposed Amendments. The undersigned understands that tenders of Legacy Debentures and Legacy Notes pursuant to any of the procedures described in the Consent Solicitation Statement/Prospectus and in the instructions hereto and acceptance thereof by Enterprises will constitute a binding agreement between the undersigned and Enterprises, upon the terms and subject to the conditions of the Exchange Offer and Consent Solicitation. For purposes of the Exchange Offer, the undersigned understands that Enterprises will be deemed to have accepted for exchange validly tendered Legacy Debentures and Legacy Notes if, as and when Enterprises gives written notice thereof to the Exchange Agent. For purposes of the Consent Solicitation, Consents received by the Exchange Agent will be deemed to have been accepted if, as and when the Issuer and the Trustee execute the supplemental indentures after the Expiration Date. The undersigned understands that Enterprises' obligation to accept for exchange Legacy Debentures and Legacy Notes validly tendered pursuant to the Exchange Offer is conditioned upon the satisfaction of the conditions described in the Consent Solicitation Statement/Prospectus under "The Exchange Offer and Consent Solicitation--Conditions to the Exchange Offer and Consent Solicitation." Any Legacy Debentures and Legacy Notes not accepted for exchange will be returned promptly to the undersigned at the address set forth above unless otherwise indicated herein under "Special Delivery Instructions" below. All authority conferred or agreed to be conferred by this Consent and Letter of Transmittal shall survive the death or incapacity of the undersigned and every obligation of the undersigned under this Consent and Letter of Transmittal shall be binding upon the undersigned's heirs, personal representatives, executors, administrators, successors, assigns, trustees in bankruptcy and other legal representatives. The undersigned understands that the delivery and surrender of the Legacy Debentures and Legacy Notes is not effective, and the risk of loss of the Legacy Debentures and Legacy Notes does not pass to the Exchange Agent, until receipt by the Exchange Agent of this Consent and Letter of Transmittal (or a facsimile hereof) properly completed and duly executed, together with all accompanying evidences of authority and any other required documents in form satisfactory to Enterprises or receipt of an Agent's Message. All questions as to the form of all documents and the validity (including time of receipt) and acceptance of tenders and withdrawals of Legacy Debentures and Legacy Notes and deliveries and revocations of Consents will be determined by Enterprises, in its reasonable discretion, which determination shall be final and binding. Unless otherwise indicated under "Special Issuance Instructions" below, please deliver the certificates representing Enterprises Series A Preferred Stock from the Exchange Agent for the Exchange Offer consideration for any Legacy Debentures and Legacy Notes tendered hereby that are exchanged, and/or return any certificates representing Legacy Debentures and Legacy Notes not tendered or not accepted for exchange in the name(s) of the Holder(s) appearing under "Description of Legacy Debentures and Legacy Notes." Similarly, unless otherwise indicated under "Special Delivery Instructions," please mail the certificates representing Enterprises Series A Preferred Stock for the Exchange Offer consideration and/or return any certificates representing Legacy Debentures and Legacy Notes not tendered or not accepted for exchange (and accompanying documents, as appropriate) to the address(es) of the Holder(s) appearing under "Description of Legacy Debentures and Legacy Notes." In the event that both the Special Issuance Instructions and the Special Delivery Instructions are completed, please deliver the certificates representing Enterprises Series A Preferred Stock for the Exchange Offer consideration and/or return any certificates representing Legacy Debentures and Legacy Notes not tendered or not accepted for exchange (and any accompanying documents, as appropriate) to the person or persons so indicated. In the case of a book-entry delivery of Legacy Debentures and Legacy Notes, please credit the account maintained at DTC with any Legacy Debentures and Legacy Notes not tendered or not accepted for exchange. The undersigned recognizes that Enterprises does not have any obligation pursuant to the Special Issuance Instructions to transfer any Legacy Debentures and Legacy Notes from the name of the Holder thereof if Enterprises does not accept for exchange any of the Legacy Debentures and Legacy Notes so tendered. 6 - -------------------------------------------------------------------------------- PLEASE SIGN HERE (TO BE COMPLETED BY ALL CONSENTING AND TENDERING HOLDERS REGARDLESS OF WHETHER LEGACY DEBENTURES AND LEGACY NOTES ARE BEING PHYSICALLY DELIVERED HEREWITH, UNLESS AN AGENT'S MESSAGE IS DELIVERED IN CONNECTION WITH A BOOK-ENTRY TRANSFER OF SUCH LEGACY DEBENTURES AND LEGACY NOTES) The completion, execution and delivery of this Consent and Letter of Transmittal on or prior to the Expiration Date will be deemed to constitute a Consent to the Proposed Amendments with respect to the Legacy Debentures and Legacy Notes tendered hereby. This Consent and Letter of Transmittal must be signed by the registered Holder(s) of Legacy Debentures and Legacy Notes exactly as their name(s) appear(s) on certificate(s) for Legacy Debentures and Legacy Notes or, if tendered by the registered Holder(s) of Legacy Debentures and Legacy Notes, exactly as such participant's name appears on a security position listing as the owner of Legacy Debentures and Legacy Notes, or by person(s) authorized to become registered Holder(s) by endorsements and documents transmitted with this Consent and Letter of Transmittal. If the signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must set forth his or her full title below under "Capacity" and submit evidence satisfactory to Enterprises of such person's authority to so act. See Instruction 6 below. If the signature appearing below is not of the registered Holder(s) of the Legacy Debentures and Legacy Notes, then the registered Holder(s) must sign a valid proxy. X ______________________________________________________________________________ X ______________________________________________________________________________ (SIGNATURE(S) OF HOLDER(S) OR AUTHORIZED SIGNATORY) Date: __________________________ , 2001 Name(s): _______________________________________________________________________ _______________________________________________________________________ (PLEASE PRINT) Capacity: ______________________________________________________________________ Address: _______________________________________________________________________ _______________________________________________________________________ (INCLUDING ZIP CODE) Area Code and Telephone No.: ___________________________________________________ PLEASE COMPLETE SUBSTITUTE FORM W-9 HEREIN SIGNATURE GUARANTEE (SEE INSTRUCTIONS 1 AND 6 BELOW) Certain Signatures Must be Guaranteed by a Medallion Signature Guarantor ________________________________________________________________________________ (NAME OF MEDALLION SIGNATURE GUARANTOR GUARANTEEING SIGNATURE) ________________________________________________________________________________ (ADDRESS (INCLUDING ZIP CODE) AND TELEPHONE NUMBER (INCLUDING AREA CODE) OF FIRM) ________________________________________________________________________________ (AUTHORIZED SIGNATURE) ________________________________________________________________________________ (PRINTED NAME) ________________________________________________________________________________ (TITLE) Date: __________________________ , 2001 - -------------------------------------------------------------------------------- 7 - ------------------------------------------------ ------------------------------------------------ SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 5, 6, 7 AND 8) (SEE INSTRUCTIONS 5, 6, 7 AND 8) To be completed ONLY if certificates To be completed ONLY if certificates for Legacy representing Enterprises Series A Preferred Debentures and Legacy Notes not exchanged and/or Stock to be exchanged for Legacy Debentures and certificates representing Enterprises Series A Legacy Notes in connection with the Exchange Preferred Stock to be exchanged for Legacy Offer and Consent Solicitation are to be issued Debentures and Legacy Notes are to be sent to to the order of someone other than the person or someone other than the person or persons whose persons whose signature(s) appear(s) within this signature(s) appear(s) within this Consent and Consent and Letter of Transmittal or issued to Letter of Transmittal or sent to an address an address different from that shown in the box different from that shown in the box entitled entitled "Description of Legacy Debentures and "Description of Legacy Debentures and Legacy Legacy Notes" within this Consent and Letter of Notes" within this Consent and Letter of Transmittal. Transmittal. Name -------------------------------------- Name -------------------------------------- (PLEASE PRINT) (PLEASE PRINT) Address -------------------------------------- Address -------------------------------------- (PLEASE PRINT) (PLEASE PRINT) - ------------------------------------------------ ------------------------------------------------ ZIP CODE ZIP CODE - ------------------------------------------------ TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER (SEE SUBSTITUTE FORM W-9 HEREIN) - ------------------------------------------------ ------------------------------------------------
8 INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER AND CONSENT SOLICITATION 1. GUARANTEE OF SIGNATURES. Signatures on this Consent and Letter of Transmittal must be guaranteed by a recognized participant in the Securities Transfer Agents Medallion Program (a "Medallion Signature Guarantor"), unless the Legacy Debentures and Legacy Notes tendered and Consents delivered thereby are tendered and delivered (i) by a registered Holder of Legacy Debentures and Legacy Notes (or by a participant in DTC whose name appears on a security position listing as the owner of such Legacy Debentures and Legacy Notes) who has not completed any of the boxes entitled "Special Delivery Instructions" on this Consent and Letter of Transmittal or (ii) for the account of a member firm of a registered national securities exchange, a member of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States (each of the foregoing, including a Medallion Signature Guarantor, being referred to as an "Eligible Institution"). If the Legacy Debentures and Legacy Notes are registered in the name of a person other than the signer of this Consent and Letter of Transmittal or if Legacy Debentures and Legacy Notes not accepted for exchange or not tendered are to be returned to a person other than the registered Holder, then the signature on this Consent and Letter of Transmittal accompanying the tendered Legacy Debentures and Legacy Notes must be guaranteed by a Medallion Signature Guarantor as described above. Beneficial owners whose Legacy Debentures and Legacy Notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee must contact such broker, dealer, commercial bank, trust company or other nominee if they desire to tender Legacy Debentures and Legacy Notes and deliver Consents with respect to Legacy Debentures and Legacy Notes so registered. See "The Exchange Offer and Consent Solicitation--Procedures for Exchanging Legacy Debentures and Legacy Notes and Delivering Consents" in the Consent Solicitation Statement/Prospectus. 2. REQUIREMENTS OF TENDER. This Consent and Letter of Transmittal is to be completed by Holders of Legacy Debentures and Legacy Notes if certificates representing such Legacy Debentures and Legacy Notes are to be forwarded herewith, or if delivery of such certificates is to be made by book-entry transfer to the account maintained by DTC, pursuant to the procedures set forth in the Consent Solicitation Statement/Prospectus under "The Exchange Offer and Consent Solicitation--Procedures for Exchanging Legacy Debentures and Legacy Notes and Delivering Consents," unless such Legacy Debentures and Legacy Notes are being transferred through ATOP. For a holder to validly tender Legacy Debentures and Legacy Notes and deliver Consents pursuant to the Exchange Offer and Consent Solicitation, a properly completed and duly executed Consent and Letter of Transmittal (or a manually signed facsimile thereof), together with any signature guarantees and any other documents required by these Instructions, must be received by the Exchange Agent at its address set forth herein on or prior to the Expiration Date, and either (i) certificates representing such Legacy Debentures and Legacy Notes must be received by the Exchange Agent at its address or (ii) such Legacy Debentures and Legacy Notes must be transferred pursuant to the procedures for book-entry transfer described in the Consent Solicitation Statement/Prospectus under "The Exchange Offer and Consent Solicitation--Procedures for Exchanging Legacy Debentures and Legacy Notes and Delivering Consents," and a Book-Entry Confirmation (as described in the Consent Solicitation Statement/Prospectus) must be received by the Exchange Agent on or prior to the Expiration Date. A Holder who desires to tender Legacy Debentures and Legacy Notes and who cannot comply with procedures set forth herein for tender on a timely basis or whose Legacy Debentures and Legacy Notes are not immediately available must comply with the guaranteed delivery procedures discussed below, but only if such Notice of Guaranteed Delivery is received by the Exchange Agent on or prior to the Expiration Date. If a Holder desires to tender Legacy Debentures and Legacy Notes pursuant to the Exchange Offer and (i) certificates representing such Legacy Debentures and Legacy Notes are not immediately available, (ii) time will not permit such Holder's Consent and Letter of Transmittal, certificates representing such Legacy Debentures and Legacy Notes and all other required documents to reach the Exchange Agent on or prior to the Expiration Date or (iii) the procedures for book-entry transfer (including delivery of an Agent's Message) cannot be completed on or prior to the Expiration Date, such Holder may nevertheless tender such Legacy Debentures and Legacy Notes with the effect that such tender will be deemed to have been received on or prior to the Expiration Date if the procedures set forth in the Consent Solicitation Statement/Prospectus under "The Exchange Offer and Consent Solicitation--Procedures for Exchanging Legacy Debentures and Legacy Notes and Delivering Consents--Guaranteed Delivery" are followed. Pursuant to such procedures, (a) the tender must be made by or through an Eligible Institution, (b) a properly completed and duly executed Notice of Guaranteed Delivery or an Agent's Message with respect to a guaranteed delivery that is accepted by Enterprises must be received by the Exchange Agent on or prior to the Expiration Date and (c) the certificates for the tendered Legacy Debentures and Legacy Notes, in proper form for transfer (or a Book-Entry Confirmation of the transfer of such Legacy Debentures and Legacy Notes into the Exchange Agent's account at DTC as described in the Consent Solicitation Statement/ Prospectus), together with a Consent and Letter of Transmittal (or a facsimile thereof) properly completed and duly executed, with any required signature guarantees and any other documents required by this Consent and 9 Letter of Transmittal or a properly transmitted Agent's Message, must be received by the Exchange Agent within three business days after the date of execution of the Notice of Guaranteed Delivery. The method of delivery of this Consent and Letter of Transmittal, the Legacy Debentures and Legacy Notes and all other required documents, including delivery through the DTC and acceptance of an Agent's Message transmitted through ATOP, is at the option and risk of the tendering Holder. If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed for such documents to reach the Exchange Agent. No alternative, conditional or contingent tenders shall be accepted. All tendering Holders, by execution of this Consent and Letter of Transmittal (or a facsimile thereof), waive any right to receive any notice of the acceptance of their Legacy Debentures and Legacy Notes for exchange. 3. CONSENTS TO PROPOSED AMENDMENTS. A valid Consent to the Proposed Amendments may be given only by a Holder or its attorney-in-fact. A beneficial owner who is not a Holder must arrange with the Holder to execute and deliver a Consent on its behalf, obtain a properly completed irrevocable proxy that authorizes such beneficial owner to consent to the Proposed Amendments on behalf of such Holder or become a Holder. Notwithstanding the foregoing, any DTC participant which has Legacy Debentures and Legacy Notes credited to its DTC account at any time (and thereby held of record by DTC's nominee) may directly provide a Consent to the Proposed Amendments as though it were the registered Holder by so completing, executing and delivering this Consent and Letter of Transmittal. To validly deliver a Consent with respect to Legacy Debentures and Legacy Notes transferred pursuant to ATOP on or prior to the Expiration Date, a DTC participant using ATOP must also properly complete and duly execute this Consent and Letter of Transmittal and deliver it to the Exchange Agent on or prior to the Expiration Date. 4. WITHDRAWAL OF TENDERED LEGACY DEBENTURES AND LEGACY NOTES AND REVOCATION OF CONSENTS. Tenders of Legacy Debentures and Legacy Notes may be withdrawn at any time on or prior to the Expiration Date, but the Exchange Offer consideration shall not be payable in respect of the Legacy Debentures and Legacy Notes so withdrawn. A valid withdrawal of tendered Legacy Debentures and Legacy Notes effected on or prior to the Expiration Date will constitute the concurrent valid revocation of such Holder's related Consent. In order for a Holder to revoke a Consent, such Holder must withdraw any related tendered Legacy Debentures and Legacy Notes. Tenders of Legacy Debentures and Legacy Notes may be validly withdrawn if the Exchange Offer is terminated without any Legacy Debentures and Legacy Notes being exchanged thereunder. In the event of a termination of the Exchange Offer, the Legacy Debentures and Legacy Notes tendered pursuant to the Exchange Offer will be promptly returned to the tendering Holder, the supplemental indentures will not become operative and the Consents will be deemed revoked. If the Consent Solicitation is amended on or prior to the Expiration Date in a manner determined by Enterprises, in its reasonable discretion, to constitute a material adverse change to the Holders, Enterprises promptly will disclose such amendment and, if necessary, extend the Consent Solicitation for a period deemed by Enterprises to be adequate to permit Holders to withdraw their Legacy Debentures and Legacy Notes and revoke their Consents. In addition, Enterprises may, if it deems appropriate, extend the Consent Solicitation for any other reason. If Enterprises makes a material change in the terms of the Exchange Offer or the information concerning the Exchange Offer or waives a material condition of the Exchange Offer, Enterprises will disseminate additional Exchange Offer material and extend the Exchange Offer to the extent required by law. If the consideration to be paid in the Exchange Offer is increased or decreased or the principal amount of Legacy Debentures and Legacy Notes subject to the Exchange Offer is decreased, the Exchange Offer will remain open at least ten business days from the date Enterprises first gives notice to Holders, by public announcement or otherwise, of such increase or decrease. In addition, Enterprises may, if it deems appropriate, extend the Exchange Offer for any other reason. For a withdrawal of tendered Legacy Debentures and Legacy Notes or the revocation of Consents, as the case may be, to be effective, a written or facsimile transmission notice of withdrawal or revocation must be received by the Exchange Agent on or prior to the Expiration Date at its address set forth herein. Any such notice of withdrawal must (i) specify the name of the person who tendered the Legacy Debentures and Legacy Notes to be withdrawn or to which the revocation of Consents relates, (ii) contain the description of the Legacy Debentures and Legacy Notes to be withdrawn or to which the revocation of Consents relates and identify the certificate number or numbers shown on the particular certificates evidencing such Legacy Debentures and Legacy Notes (unless such Legacy Debentures and Legacy Notes were tendered by book-entry transfer) and the aggregate principal amount represented by such Legacy Debentures and Legacy Notes and (iii) be signed by the Holder of such Legacy Debentures and Legacy Notes in the same manner as the original signature on the Consent and Letter of Transmittal by which such Legacy Debentures and Legacy Notes were tendered (including any required signature guarantees) or the related Consent was given, or be accompanied by evidence sufficient to the Exchange Agent that the person withdrawing the tender or revoking the Consent has succeeded to the beneficial ownership of the Legacy Debentures and Legacy Notes. If the Legacy Debentures and Legacy Notes to be withdrawn have 10 been delivered or otherwise identified to the Exchange Agent, a signed notice of withdrawal is effective immediately upon written or facsimile notice of such withdrawal even if physical release is not yet effected. A valid revocation of Consents effected on or prior to the Expiration Date will constitute the concurrent valid withdrawal of the Legacy Debentures and Legacy Notes to which such Consents relate. Any permitted withdrawal of Legacy Debentures and Legacy Notes and revocation of Consents may not be rescinded. Any Legacy Debentures and Legacy Notes properly withdrawn will thereafter be deemed not validly tendered and any Consents revoked will be deemed not validly delivered for purposes of the Exchange Offer; provided, however, that withdrawn Legacy Debentures and Legacy Notes may be re-tendered and revoked Consents may be re-delivered by again following one of the appropriate procedures described herein at any time on or prior to the Expiration Date. All questions as to the validity, form and eligibility (including time of receipt) of notices of withdrawal and revocation of Consents will be determined by Enterprises, in its reasonable discretion (whose determination shall be final and binding). Neither Enterprises, the Exchange Agent, the Information Agent, the Trustee nor any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or revocation of Consents, or incur any liability for failure to give any such notification. 5. PARTIAL TENDERS AND CONSENTS. Tenders of Legacy Debentures and Legacy Notes pursuant to the Exchange Offer (and the corresponding Consents thereto pursuant to the Consent Solicitation) will be accepted only in principal amounts equal to $1,000 or integral multiples thereof. If less than the entire principal amount of any Legacy Debentures and Legacy Notes evidenced by a submitted certificate is tendered, the tendering Holder must fill in the principal amount tendered in the appropriate column of the box entitled "Description of Legacy Debentures and Legacy Notes" herein. The entire principal amount represented by the certificates for all Legacy Debentures and Legacy Notes delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated. If the entire principal amount of all Legacy Debentures and Legacy Notes is not tendered or not accepted for exchange, certificates for the principal amount of Legacy Debentures and Legacy Notes not tendered or not accepted for exchange will be sent (or, if tendered by book-entry transfer, returned by credit to the account at DTC designated herein) to the Holder unless otherwise provided in the appropriate box in this Consent and Letter of Transmittal (see Instruction 7) promptly after the Legacy Debentures and Legacy Notes are accepted for exchange. 6. SIGNATURES ON THIS CONSENT AND LETTER OF TRANSMITTAL, BOND POWERS AND ENDORSEMENT; GUARANTEE OF SIGNATURES. If this Consent and Letter of Transmittal is signed by the registered Holder(s) of the Legacy Debentures and Legacy Notes tendered hereby or with respect to which Consent is given, the signature(s) must correspond with the name(s) as written on the face of the certificate(s) without alteration, enlargement or any change whatsoever. If this Consent and Letter of Transmittal is signed by a participant in DTC whose name is shown as the owner of the Legacy Debentures and Legacy Notes tendered hereby, the signature must correspond with the name shown on the security position listing the owner of the Legacy Debentures and Legacy Notes. IF THIS CONSENT AND LETTER OF TRANSMITTAL IS EXECUTED BY A HOLDER OF LEGACY DEBENTURES AND LEGACY NOTES WHO IS NOT THE REGISTERED HOLDER, THEN THE REGISTERED HOLDER MUST SIGN A VALID PROXY, WITH THE SIGNATURE OF SUCH REGISTERED HOLDER GUARANTEED BY A MEDALLION SIGNATURE GUARANTOR, UNLESS THE SIGNATURE IS THAT OF AN ELIGIBLE INSTITUTION. IN ADDITION, SUCH TENDER MUST BE ACCOMPANIED BY A VALID CONSENT OR PROXY OF SUCH REGISTERED HOLDER(S), SINCE LEGACY DEBENTURES AND LEGACY NOTES MAY NOT BE TENDERED ON OR PRIOR TO THE EXPIRATION DATE WITHOUT A CONSENT TO THE PROPOSED AMENDMENTS AND ONLY REGISTERED HOLDER(S) ARE ENTITLED TO PROVIDE CONSENTS TO THE PROPOSED AMENDMENTS. SIGNATURES ON SUCH CONSENT OR PROXY MUST BE GUARANTEED BY A MEDALLION SIGNATURE GUARANTOR UNLESS THE SIGNATURE IS THAT OF AN ELIGIBLE INSTITUTION. If any of the Legacy Debentures and Legacy Notes tendered hereby (and with respect to which Consent is given) are owned of record by two or more joint owners, all such owners must sign this Consent and Letter of Transmittal. If any tendered Legacy Debentures and Legacy Notes are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate copies of this Consent and Letter of Transmittal and any necessary accompanying documents as there are different names in which certificates are held. If this Consent and Letter of Transmittal is signed by the Holder, the certificates for any principal amount of Legacy Debentures and Legacy Notes not tendered or accepted for exchange are to be issued (or if any principal amount of Legacy Debentures and Legacy Notes that is not tendered or not accepted for exchange is to be reissued or returned) to, or, if tendered by book-entry transfer, credited to the account at DTC of the registered Holder, and certificates representing Enterprises Series A Preferred Stock for Legacy Debentures and Legacy 11 Notes to be exchanged in connection with the Exchange Offer and Consent Solicitation are to be issued in the name of the registered Holder, then the registered Holder need not endorse any certificates for tendered Legacy Debentures and Legacy Notes, nor provide a separate bond power. In any other case (including if this Consent and Letter of Transmittal is not signed by the registered Holder), the registered Holder must either properly endorse the certificates for Legacy Debentures and Legacy Notes tendered or transmit a separate properly completed bond power with this Consent and Letter of Transmittal (in either case, executed exactly as the name(s) of the registered holder(s) appear(s) on such Legacy Debentures and Legacy Notes, and, with respect to a participant in DTC whose name appears on a security position listing as the owner of Legacy Debentures and Legacy Notes, exactly as the name(s) of the participant(s) appear(s) on such security position listing), with the signature on the endorsement or bond power guaranteed by a Medallion Signature Guarantor, unless such certificates or bond powers are executed by an Eligible Institution. See Instruction 1. If this Consent and Letter of Transmittal or any certificates of Legacy Debentures and Legacy Notes or bond powers are signed by trustees, executors, 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 the proper evidence satisfactory to Enterprises of their authority to so act must be submitted with this Consent and Letter of Transmittal. When this Consent and Letter of Transmittal is signed by the registered Holder(s) of the Legacy Debentures and Legacy Notes listed and transmitted hereby, no endorsements of Legacy Debentures and Legacy Notes or separate instruments of transfer are required unless exchange is to be made, or Legacy Debentures and Legacy Notes not tendered or exchanged are to be issued, to a person other than the registered Holder(s), in which case the signatures on such Legacy Debentures and Legacy Notes or instruments of transfer must be guaranteed by a Medallion Signature Guarantor. Endorsements on certificates for Legacy Debentures and Legacy Notes, signatures on bond powers and proxies and Consents provided in accordance with this Instruction 6 by registered Holders not executing this Consent and Letter of Transmittal must be guaranteed by a Medallion Signature Guarantor. See Instruction 1. 7. SPECIAL ISSUANCE AND SPECIAL DELIVERY INSTRUCTIONS. Tendering Holders should indicate in the applicable box or boxes the name and address to which Legacy Debentures and Legacy Notes for principal amounts not tendered or not accepted for exchange or certificates representing Enterprises Series A Preferred Stock for Legacy Debentures and Legacy Notes to be exchanged in connection with the Exchange Offer and Consent Solicitation are to be issued or sent, if different from the name and address of the registered Holder signing this Consent and Letter of Transmittal. In the case of issuance in a different name, the taxpayer identification or social security number of the person named must also be indicated. If no instructions are given, Legacy Debentures and Legacy Notes not tendered or not accepted for exchange will be returned to the registered Holder of the Legacy Debentures and Legacy Notes tendered. For Holders of Legacy Debentures and Legacy Notes tendering by book-entry transfer, Legacy Debentures and Legacy Notes not tendered or not accepted for exchange will be returned by crediting the account at DTC designated above. 8. TAXPAYER IDENTIFICATION NUMBER. Each tendering Holder is required to provide the Exchange Agent with the Holder's correct taxpayer identification number ("TIN"), generally the Holder's social security or federal employer identification number, on the Substitute Form W-9, which is provided under "Important Tax Information" below or, alternatively, to establish another basis for exemption from backup withholding. A Holder must cross out item (2) in the Certification box on Substitute Form W-9 if such Holder is subject to backup withholding. Failure to provide the information on the form may subject the tendering Holder to up to 31% federal income tax backup withholding on the payment made to the Holder or other person with respect to Legacy Debentures and Legacy Notes exchanged pursuant to the Exchange Offer. The box in Part 3 of the form should be checked if the tendering Holder has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future. If the box in Part 3 is checked and the Exchange Agent is not provided with a TIN, the Exchange Agent will withhold up to 31% from all such payments with respect to the Legacy Debentures and Legacy Notes to be exchanged until a TIN is provided to the Exchange Agent. In any case, if such Holder does not provide the Exchange Agent its TIN within 60 days, the Exchange Agent will remit the withheld amount to the IRS. 9. TRANSFER TAXES. Each tendering Holder shall be responsible for all transfer taxes imposed on such Holder. 10. IRREGULARITIES. All questions as to the validity, form, eligibility (including time of receipt) and acceptance of any tendered Legacy Debentures and Legacy Notes or delivery of Consents pursuant to any of the procedures described above will be determined by Enterprises in its reasonable discretion (whose determination shall be final and binding). Enterprises reserves the right to reject any or all tenders of any Legacy Debentures and Legacy Notes or Consents determined by it not to be in proper form or, in the case of Legacy Debentures 12 and Legacy Notes, if the acceptance for exchange of such Legacy Debentures and Legacy Notes may, in the opinion of Enterprises' counsel, be unlawful. Enterprises also reserves the right to waive any of the conditions of the Exchange Offer or to waive any defect or irregularity in any tender with respect to Legacy Debentures and Legacy Notes or Consents of any particular Holder, whether or not similar defects or irregularities are waived in the case of other Holders. Enterprises' interpretation of the terms and conditions of the Exchange Offer and Consent Solicitation (including the Consent and Letter of Transmittal and the Instructions thereto) will be final and binding. Neither Enterprises, the Exchange Agent, the Information Agent, the Trustee nor any other person will be under any duty to give notification of any defects or irregularities in tenders or will incur any liability for failure to give any such notification. If Enterprises waives its right to reject a defective tender of Legacy Debentures and Legacy Notes, the Holder will be entitled to the Exchange Offer consideration. 11. WAIVER OF CONDITIONS. Enterprises reserves the right, in its reasonable discretion, to waive any of the conditions to the Exchange Offer or the Consent Solicitation in the case of any Legacy Debentures and Legacy Notes tendered or Consents delivered, in whole or in part, at any time and from time to time. 12. MUTILATED, LOST, STOLEN OR DESTROYED CERTIFICATES FOR LEGACY DEBENTURES AND LEGACY NOTES. Any Holder of Legacy Debentures and Legacy Notes whose certificates for Legacy Debentures and Legacy Notes have been mutilated, lost, stolen or destroyed should write to or telephone Wells Fargo Bank Minnesota, N.A., Corporate Trust Services, MAC N9303-110, 6th & Marquette, Minneapolis, Minnesota 55479, Attention: Michael Lechner, telephone (612) 316-4305. 13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions relating to the procedure for tendering Legacy Debentures and Legacy Notes and consenting to the Proposed Amendments and requests for assistance or additional copies of the Consent Solicitation Statement/Prospectus, this Consent and Letter of Transmittal or the Notice of Guaranteed Delivery may be directed to, and additional information about the Exchange Offer and Consent Solicitation may be obtained from, the Information Agent, whose address and telephone number appear on the last page hereto. 13 IMPORTANT TAX INFORMATION Under federal income tax laws, in order to avoid "backup withholding," a Holder whose tendered Legacy Debentures and Legacy Notes are accepted for exchange is required to provide the Exchange Agent (as payer) with such Holder's correct TIN on Substitute Form W-9 below or otherwise establish a basis for exemption from backup withholding. If such Holder is an individual, the TIN is his social security number. If the Exchange Agent is not provided with the TIN, a $50 penalty may be imposed by the Internal Revenue Service, and payments made with respect to Legacy Debentures and Legacy Notes exchanged pursuant to the Exchange Offer may be subject to backup withholding. Failure to comply truthfully with the backup withholding requirements also may result in the imposition of severe criminal and/or civil fines and penalties. Certain Holders (including, among others, all corporations and certain foreign persons) are not subject to these backup withholding requirements. Exempt Holders should still complete the Substitute Form W-9 to avoid possible erroneous backup withholding. Exempt Holders should furnish their TIN, write "Exempt" on the face of the Substitute Form W-9 and sign, date and return the Substitute Form W-9 to the Exchange Agent. A foreign person, including an entity, may qualify as an exempt recipient by submitting to the Exchange Agent a properly completed Internal Revenue Service Form W-8, signed under penalties of perjury, attesting to that Holder's foreign status. A Form W-8 can be obtained from the Information Agent. See the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for additional instructions. If backup withholding applies, the Exchange Agent is required to withhold up to 31% of any payments made to the Holder or other payee. Backup withholding is not an additional federal income tax. Rather, the federal income tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained from the Internal Revenue Service. PURPOSE OF SUBSTITUTE FORM W-9 To prevent backup withholding on payments, including any Exchange Offer consideration made with respect to Legacy Debentures and Legacy Notes exchanged pursuant to the Exchange Offer, the Holder is required to provide the Exchange Agent with either (i) the Holder's correct TIN by completing the form below, certifying under penalties of perjury that the TIN provided on Substitute Form W-9 is correct (or that such Holder is awaiting a TIN) and that (a) the Holder has not been notified by the Internal Revenue Service that the Holder is subject to backup withholding as a result of failure to report all interest or dividends or (b) the Internal Revenue Service has notified the Holder that the Holder is no longer subject to backup withholding; or (ii) an adequate basis for exemption. WHAT NUMBER TO GIVE THE EXCHANGE AGENT The Holder is required to give the Exchange Agent the TIN (e.g., social security number or employer identification number) of the registered Holder of the Legacy Debentures and Legacy Notes. If the Legacy Debentures and Legacy Notes are held in more than one name or are held not in the name of the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for additional guidance on which number to report. 14 PAYER'S NAME: MELLON INVESTOR SERVICES LLC - --------------------------------------------------------------------------------------------------------- SUBSTITUTE PART 1--PLEASE PROVIDE YOUR TIN IN THE BOX ---------------------------- FORM W-9 AT RIGHT AND CERTIFY BY SIGNING AND DATING Social Security Number(s) BELOW. or (If you do not have a TIN but have Employer Identification Number submitted an application for one or intend ---------------------------- to do so in the near future, write "Applied For" instead.) - --------------------------------------------------------------------------------------------------------- DEPARTMENT OF THE TREASURY PART 2--CERTIFICATION PART 3-- INTERNAL REVENUE SERVICE Under Penalties of Perjury, I certify that: Awaiting TIN / / PAYER'S REQUEST FOR TAXPAYER (1) The number shown on this form is my IDENTIFICATION NUMBER (TIN) correct Taxpayer Identification Number (or I am waiting for a number to be issued to me); (2) I am not subject to backup withholding either because I have not been notified by the Internal Revenue Service (the "IRS") that I am subject to backup withholding as a result of failure to report all interest or dividends, or because the IRS has notified me that I am no longer subject to backup withholding; and (3) any other information provided in this Form is true and correct. - ---------------------------------------------------------------------------------------------------------
CERTIFICATION INSTRUCTIONS-- You must cross out item (2) in Part 2 above if you have been notified by the IRS that you are subject to backup withholding because of under-reporting interest or dividends on your tax return. However, if after being notified by the IRS that you were subject to backup withholding you received another notification from the IRS stating that you are no longer subject to backup withholding, do not cross out item (2). SIGNATURE DATE , 2001 --------------------------------------------- -------------------------- - -------------------------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF UP TO 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER AND CONSENT SOLICITATION. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9. - -------------------------------------------------------------------------------- CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalty of perjury that a taxpayer identification number has not been issued to me, and either (i) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (ii) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number within 60 days of the date payment is made, the backup withholding amount of up to 31% will be remitted to the IRS. Signature: Date: , 2001 ------------------------------------------------- --------------------------
- -------------------------------------------------------------------------------- Any questions or requests for assistance or additional copies of the Consent Solicitation Statement/ Prospectus, this Consent and Letter of Transmittal or the Notice of Guaranteed Delivery may be directed to the Information Agent at the telephone numbers and location listed below. You may also contact your broker, dealer, 15 commercial bank or trust company or nominee for assistance concerning the Exchange Offer and the Consent Solicitation. THE INFORMATION AGENT FOR THE EXCHANGE OFFER AND THE CONSENT SOLICITATION IS: MELLON INVESTOR SERVICES LLC 44 Wall Street 7th Floor New York, NY 10005 Toll Free: (800) 335-7842 16 EX-99.(A)(1)(II) 4 a2055822zex-99_a1ii.txt EXHIBIT 99(A)(1)(II) EXHIBIT (a)(1)(ii) PRICE ENTERPRISES, INC. NOTICE OF GUARANTEED DELIVERY PURSUANT TO THE OFFER TO EXCHANGE SHARES OF 8 3/4% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK OF PRICE ENTERPRISES, INC. FOR ANY AND ALL OUTSTANDING 9% CONVERTIBLE REDEEMABLE SUBORDINATED SECURED DEBENTURES DUE 2004 AND 10% SENIOR REDEEMABLE SECURED NOTES DUE 2004 OF EXCEL LEGACY CORPORATION AND SOLICITATION OF CONSENTS FOR AMENDMENT OF THE RELATED INDENTURES THE EXCHANGE AGENT FOR THE EXCHANGE OFFER AND THE CONSENT SOLICITATION IS: MELLON INVESTOR SERVICES LLC BY MAIL: BY HAND: BY OVERNIGHT DELIVERY: Reorganization Department Reorganization Department Reorganization Department PO Box 3301 120 Broadway Mail Stop--Reorg South Hackensack, NJ 07606 85 Challenger Road Ridgefield Park, NJ 07660 13th Floor New York, NY 10271 BY FACSIMILE TRANSMISSION: (FOR ELIGIBLE INSTITUTIONS ONLY) (201) 296-4293 CONFIRM FACSIMILE BY TELEPHONE ONLY: (201) 296-4860
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR TRANSMISSION VIA FACSIMILE TO A NUMBER, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE VALID DELIVERY. As set forth in the Consent Solicitation Statement/Prospectus dated August 7, 2001 (as it may be supplemented and amended from time to time, the "Consent Solicitation Statement/Prospectus") of Price Enterprises, Inc., a Maryland corporation ("Enterprises"), under "The Exchange Offer and Consent Solicitation--Procedures for Exchanging Legacy Debentures and Legacy Notes and Delivering Consents," and in the Instructions of the Consent and Letter of Transmittal (the "Consent and Letter of Transmittal"), this form, or one substantially equivalent hereto, or an Agent's Message (as defined in the Consent and Letter of Transmittal and described in the Consent Solicitation Statement/Prospectus) relating to the guaranteed delivery procedures, must be used to accept Enterprises' offer (the "Exchange Offer") to exchange shares of 8 3/4% Series A Cumulative Redeemable Preferred Stock of Enterprises (the "Enterprises Series A Preferred Stock") for any and all of the outstanding 9% Convertible Redeemable Subordinated Secured Debentures due 2004 (the "Legacy Debentures") and 10% Senior Redeemable Secured Notes due 2004 (the "Legacy Notes") of Excel Legacy Corporation, a Delaware corporation (the "Issuer"), if, prior to the Expiration Date (as such term is defined in the Consent and Letter of Transmittal and described in the Consent Solicitation Statement/Prospectus), (i) certificates representing such Legacy Debentures and Legacy Notes are not immediately available, (ii) time will not permit the Consent and Letter of Transmittal, certificates representing such Legacy Debentures and Legacy Notes and other required documents to reach the Exchange Agent on or prior to the Expiration Date or (iii) the procedures for book-entry transfer cannot be completed on or prior to the Expiration Date. In conjunction with the Exchange Offer, Enterprises is also soliciting (the "Consent Solicitation") consents (the "Consents") for certain proposed amendments (the "Proposed Amendments") to the respective indentures, dated as of November 5, 1999, between Legacy and Wells Fargo Bank Minnesota, N.A. (the "Trustee"), which govern the Legacy Debentures and Legacy Notes (the "Indentures"). This form must be delivered by an Eligible Institution (as defined herein) by mail or hand delivery or transmitted via facsimile to the Exchange Agent as set forth above. This form is not to be used to guarantee signatures. If a signature on the Consent and Letter of Transmittal is required to be guaranteed by a Medallion Signature Guarantor (as such term is defined in the Consent and Letter of Transmittal and described in the Consent Solicitation Statement/ Prospectus) under the instructions thereto, such signature guarantee must appear in the applicable space provided in the Consent and Letter of Transmittal. The undersigned hereby tender(s) to Enterprises, upon the terms and subject to the conditions set forth in the Consent Solicitation Statement/Prospectus and the Consent and Letter of Transmittal (receipt of which is hereby acknowledged), the principal amount of the Legacy Debentures and Legacy Notes specified below pursuant to the guaranteed delivery procedures set forth in the Consent Solicitation Statement/Prospectus under the caption "The Exchange Offer and Consent Solicitation--Procedures for Exchanging Legacy Debentures and Legacy Notes and Delivering Consents--Guaranteed Delivery." The undersigned hereby authorizes the Exchange Agent to deliver this Notice of Guaranteed Delivery to Enterprises, the Issuer and the Trustee with respect to the Legacy Debentures and Legacy Notes tendered pursuant to the Exchange Offer. As a result, holders who tender their Legacy Debentures and Legacy Notes will be deemed to have consented to the Proposed Amendments with respect to the securities tendered. The undersigned understands that holders who desire to tender their Legacy Debentures and Legacy Notes pursuant to the Exchange Offer and receive the Exchange Offer consideration (as described in the Consent Solicitation Statement/Prospectus) are required to provide Consents to the Proposed Amendments with respect to such Legacy Debentures and Legacy Notes on or prior to the Expiration Date. The undersigned understands that Enterprises will accept for exchange Legacy Debentures and Legacy Notes validly tendered on or prior to the Expiration Date. This Notice of Guaranteed Delivery may only be utilized prior to the Expiration Date. The undersigned also understands that tenders of Legacy Debentures and Legacy Notes may be withdrawn at any time prior to the Expiration Date but the Exchange Offer consideration (as described in the Consent Solicitation Statement/Prospectus) shall not be payable in respect of the Legacy Debentures and Legacy Notes so withdrawn. For a valid withdrawal of a tender of Legacy Debentures and Legacy Notes to be effective, it must be made in accordance with the procedures set forth in the Consent Solicitation Statement/Prospectus under the caption "The Exchange Offer and Consent Solicitation--Withdrawal of Tendered Legacy Debentures and Legacy Notes and Revocation of Consents." The undersigned understands that a valid withdrawal of tendered Legacy Debentures and Legacy Notes on or prior to the Expiration Date will constitute a concurrent valid revocation of the related Consent. The undersigned understands that payment for Legacy Debentures and Legacy Notes exchanged by the issuance of certificates representing Enterprises Series A Preferred Stock will be made only after 2 timely receipt by the Exchange Agent of (i) such Legacy Debentures and Legacy Notes, or a Book-Entry Confirmation of the transfer of such Legacy Debentures and Legacy Notes into the Exchange Agent's account at DTC (as defined in the Consent and Letter of Transmittal and described in the Consent Solicitation Statement/Prospectus) and (ii) a Consent and Letter of Transmittal (or a facsimile thereof), including by means of a properly transmitted Agent's Message, with respect to such Legacy Debentures and Legacy Notes properly completed and duly executed, with any signature guarantees and any other documents required by the Consent and Letter of Transmittal, within three business days after the execution hereof. The undersigned also understands that under no circumstances will interest be paid by Enterprises by reason of any delay in making payment to the undersigned and that the Exchange Offer consideration for Legacy Debentures and Legacy Notes tendered pursuant to the guaranteed delivery procedures will be the same as that for Legacy Debentures and Legacy Notes delivered to the Exchange Agent on or prior to the Expiration Date, even if the Legacy Debentures and Legacy Notes to be delivered pursuant to the guaranteed delivery procedures are not so delivered to the Exchange Agent, and therefore payment by the Exchange Agent on account of such Legacy Debentures and Legacy Notes is not made, until after the Expiration Date. The undersigned hereby represents and warrants that the undersigned has full power and authority to give the Consent to the Proposed Amendments. All authority conferred or agreed to be conferred by this Notice of Guaranteed Delivery shall not be affected by, and shall survive, the death or incapacity of the undersigned, and every obligation of the undersigned under this Notice of Guaranteed Delivery shall be binding upon the heirs, executors, administrators, trustees in bankruptcy, personal and legal representatives, successors and assigns of the undersigned. 3 PLEASE SIGN AND COMPLETE Signature(s) of Registered Holder(s) or Authorized Signatory: Date: ______________________________________ Address: ___________________________________ ____________________________________________ ____________________________________________ Names of Registered Holder(s): ____________________________________________ ____________________________________________ ____________________________________________ ____________________________________________ Area Code and Telephone No.: Principal Amount of Legacy Debentures ____________________________________________ Tendered: ____________________________________________ ____________________________________________ Principal Amount of Legacy Notes Tendered: If Legacy Debentures and Legacy Notes will be ____________________________________________ delivered by book-entry transfer, check trust ____________________________________________ company below: / / The Depository Trust Company Certificate No.(s) of Legacy Debenture(s) (if available): ____________________________________________ ____________________________________________ Certificate No.(s) of Legacy Note(s) (if available): ____________________________________________ Exchange Agent ____________________________________________ Account No.:________________________________
This Notice of Guaranteed Delivery must be signed by the holder(s) exactly as their name(s) appear(s) on certificate(s) for Legacy Debentures and Legacy Notes or on a security position listing as the owner of Legacy Debentures and Legacy Notes, or by person(s) authorized to become holder(s) by endorsements and documents transmitted with this Notice of Guaranteed Delivery. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must provide the following information: PLEASE PRINT NAME(S) AND ADDRESS(ES) Name(s): ______________________________________________________________________________ ______________________________________________________________________________ Capacity: ______________________________________________________________________________ ______________________________________________________________________________ Address(es): ______________________________________________________________________________ ______________________________________________________________________________
DO NOT SEND LEGACY DEBENTURES AND LEGACY NOTES WITH THIS FORM. LEGACY DEBENTURES AND LEGACY NOTES SHOULD BE SENT TO THE EXCHANGE AGENT TOGETHER WITH A PROPERLY COMPLETED AND DULY EXECUTED CONSENT AND LETTER OF TRANSMITTAL. 4 GUARANTEE (NOT TO BE USED FOR SIGNATURE GUARANTEE) The undersigned, a firm which is a recognized participant in the Securities Transfer Agents Medallion Program, a member firm of a registered national securities exchange, a member of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States (each of the foregoing being referred to as an "Eligible Institution"), hereby guarantees that the Legacy Debentures and Legacy Notes tendered hereby are in proper form for transfer (pursuant to the procedures set forth in the Consent Solicitation Statement/ Prospectus under the caption "The Exchange Offer and Consent Solicitation--Procedures for Tendering Legacy Debentures and Legacy Notes and Delivering Consents--Guaranteed Delivery"), and that the Exchange Agent will receive (i) such Legacy Debentures and Legacy Notes, or a Book-Entry Confirmation of the transfer of such Legacy Debentures and Legacy Notes into the Exchange Agent's account at DTC and (ii) a properly completed and duly executed Consent and Letter of Transmittal (or a manually signed facsimile thereof) with any required signature guarantees and any other documents required by the Consent and Letter of Transmittal, or a properly transmitted Agent's Message, within three business days after the date of execution hereof. The Eligible Institution that completes this form must communicate the guarantee to the Exchange Agent and must deliver the Consent and Letter of Transmittal and Legacy Debentures and Legacy Notes to the Exchange Agent within the time period shown herein. Failure to do so could result in a financial loss to such Eligible Institution. Name of Firm:___________________________________________________________________ Authorized Signature:___________________________________________________________ Title:__________________________________________________________________________ Address:________________________________________________________________________ ________________________________________________________________________________ (Zip Code) Area Code and Telephone Number:_________________________________________________ Dated: ____________, 2001 5 EX-99.(A)(1)(III) 5 a2055822zex-99_a1iii.txt EXHIBIT 99(A)(1)(III) EXHIBIT (a)(1)(iii) PRICE ENTERPRISES, INC. OFFER TO EXCHANGE SHARES OF 8 3/4% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK OF PRICE ENTERPRISES, INC. FOR ANY AND ALL OUTSTANDING 9% CONVERTIBLE REDEEMABLE SUBORDINATED SECURED DEBENTURES DUE 2004 AND 10% SENIOR REDEEMABLE SECURED NOTES DUE 2004 OF EXCEL LEGACY CORPORATION AND SOLICITATION OF CONSENTS FOR AMENDMENT OF THE RELATED INDENTURES August 10, 2001 To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: Enclosed for your consideration is a Consent Solicitation Statement/Prospectus (the "Consent Solicitation Statement/Prospectus") and a form of Consent and Letter of Transmittal (the "Consent and Letter of Transmittal" and, together with the Consent Solicitation Statement/Prospectus, the "Exchange Offer") relating to the offer by Price Enterprises, Inc., a Maryland corporation ("Enterprises"), to exchange shares of 8 3/4% Series A Cumulative Redeemable Preferred Stock of Enterprises (the "Enterprises Series A Preferred Stock") for any and all of the outstanding 9% Convertible Redeemable Subordinated Secured Debentures due 2004 (the "Legacy Debentures") and 10% Senior Redeemable Secured Notes due 2004 (the "Legacy Notes") of Excel Legacy Corporation, a Delaware corporation. In conjunction with the Consent Solicitation Statement/Prospectus, Enterprises is soliciting (the "Consent Solicitation") consents (the "Consents") for certain proposed amendments (the "Proposed Amendments") to the respective indentures, dated as of November 5, 1999, between Legacy and Wells Fargo Bank Minnesota, N.A., which govern the Legacy Debentures and Legacy Notes. Holders of the Legacy Debentures and Legacy Notes who tender their securities in the Exchange Offer will be deemed to have consented to the Proposed Amendments. The Exchange Offer consideration consists of 66.67 shares of Enterprises Series A Preferred Stock for each $1,000 in principal amount of Legacy Debentures and Legacy Notes tendered pursuant to the Consent Solicitation Statement/Prospectus. THE EXCHANGE OFFER AND SOLICITATION OF CONSENTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON SEPTEMBER 11, 2001, UNLESS EXTENDED (SUCH DATE, AS THE SAME MAY BE EXTENDED, THE "EXPIRATION DATE") OR EARLIER TERMINATED. HOLDERS WHO DESIRE TO RECEIVE THE EXCHANGE OFFER CONSIDERATION MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR LEGACY DEBENTURES AND LEGACY NOTES PURSUANT TO THE EXCHANGE OFFER AND CONSENT TO THE PROPOSED AMENDMENTS ON OR PRIOR TO THE EXPIRATION DATE. HOLDERS WHO TENDER THEIR LEGACY DEBENTURES AND LEGACY NOTES IN THE EXCHANGE OFFER ARE REQUIRED TO CONSENT TO THE PROPOSED AMENDMENTS. AS A RESULT, HOLDERS WHO TENDER THEIR LEGACY DEBENTURES AND LEGACY NOTES WILL BE DEEMED TO HAVE CONSENTED TO THE PROPOSED AMENDMENTS WITH RESPECT TO THE SECURITIES TENDERED. HOLDERS WHO DESIRE ONLY TO CONSENT TO THE PROPOSED AMENDMENTS WILL NOT RECEIVE THE EXCHANGE OFFER CONSIDERATION, AND NEED ONLY VALIDLY CONSENT TO THE PROPOSED AMENDMENTS ON OR PRIOR TO THE EXPIRATION DATE. For your information and for forwarding to your clients for whom you hold Legacy Debentures and Legacy Notes registered in your name or in the name of your nominee, we are enclosing the following documents: 1. Consent Solicitation Statement/Prospectus dated August 7, 2001. 2. A Consent and Letter of Transmittal for each of the Legacy Debentures and Legacy Notes for your use and for the information of your clients, together with "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" providing information relating to backup U.S. federal income tax withholding. 3. A Notice of Guaranteed Delivery for the Legacy Debentures and Legacy Notes, to be used to accept the Exchange Offer if the Legacy Debentures and Legacy Notes and all other required documents cannot be delivered to Mellon Investor Services LLC in its capacity as the exchange agent (the "Exchange Agent") by the Expiration Date. 4. A printed form of letter which may be sent to your clients for whose accounts you hold Legacy Debentures and Legacy Notes registered in your name or in the name of your nominee, with space provided for obtaining such clients' instructions with regard to the Exchange Offer and Consent Solicitation. This form will enable your clients to tender all Legacy Debentures and Legacy Notes that they own. DTC participants will be able to effect tenders and deliver Consents through the DTC Automated Tender Offer Program. WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE IN ORDER TO OBTAIN THEIR INSTRUCTIONS. Any inquiries you may have with respect to the Exchange Offer and Consent Solicitation should be addressed to Mellon Investor Services LLC in its capacity as the information agent (the "Information Agent") at (800) 335-7842 or at the address set forth on the back cover of the Consent Solicitation Statement/Prospectus. Additional copies of the enclosed materials may be obtained from the Information Agent. Very truly yours, PRICE ENTERPRISES, INC. NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU THE AGENT OF ENTERPRISES, THE INFORMATION AGENT, THE EXCHANGE AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE EXCHANGE OFFER AND CONSENT SOLICITATION OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN. EX-99.(A)(1)(IV) 6 a2055822zex-99_a1iv.txt EXHIBIT 99(A)(1)(IV) EXHIBIT (a)(1)(iv) PRICE ENTERPRISES, INC. OFFER TO EXCHANGE SHARES OF 8 3/4% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK OF PRICE ENTERPRISES, INC. FOR ANY AND ALL OUTSTANDING 9% CONVERTIBLE REDEEMABLE SUBORDINATED SECURED DEBENTURES DUE 2004 AND 10% SENIOR REDEEMABLE SECURED NOTES DUE 2004 OF EXCEL LEGACY CORPORATION AND SOLICITATION OF CONSENTS FOR AMENDMENT OF THE RELATED INDENTURES August 10, 2001 To Our Clients: Enclosed for your consideration is a Consent Solicitation Statement/Prospectus (the "Consent Solicitation Statement/Prospectus") and a form of Consent and Letter of Transmittal (the "Consent and Letter of Transmittal" and, together with the Consent Solicitation Statement/Prospectus, the "Exchange Offer") relating to the offer by Price Enterprises, Inc., a Maryland corporation ("Enterprises"), to exchange shares of 8 3/4% Series A Cumulative Redeemable Preferred Stock of Enterprises (the "Enterprises Series A Preferred Stock") for any and all of the outstanding 9% Convertible Redeemable Subordinated Secured Debentures due 2004 (the "Legacy Debentures") and 10% Senior Redeemable Secured Notes due 2004 (the "Legacy Notes") of Excel Legacy Corporation, a Delaware corporation. In conjunction with the Consent Solicitation Statement/Prospectus, Enterprises is soliciting (the "Consent Solicitation") consents (the "Consents") for certain proposed amendments (the "Proposed Amendments") to the respective indentures, dated as of November 5, 1999, between Legacy and Wells Fargo Bank Minnesota, N.A., which govern the Legacy Debentures and Legacy Notes. Holders of the Legacy Debentures and Legacy Notes who tender their securities in the Exchange Offer will be deemed to have consented to the Proposed Amendments. The Exchange Offer consideration consists of 66.67 shares of Enterprises Series A Preferred Stock for each $1,000 in principal amount of Legacy Debentures and Legacy Notes tendered pursuant to the Exchange Offer. - -------------------------------------------------------------------------------- THE EXCHANGE OFFER AND SOLICITATION OF CONSENTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON SEPTEMBER 11, 2001, UNLESS EXTENDED (SUCH DATE, AS THE SAME MAY BE EXTENDED, THE "EXPIRATION DATE") OR EARLIER TERMINATED. HOLDERS WHO DESIRE TO RECEIVE THE EXCHANGE OFFER CONSIDERATION MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR LEGACY DEBENTURES AND LEGACY NOTES PURSUANT TO THE EXCHANGE OFFER AND CONSENT TO THE PROPOSED AMENDMENTS ON OR PRIOR TO THE EXPIRATION DATE. HOLDERS WHO TENDER THEIR LEGACY DEBENTURES AND LEGACY NOTES IN THE EXCHANGE OFFER ARE REQUIRED TO CONSENT TO THE PROPOSED AMENDMENTS. AS A RESULT, HOLDERS WHO TENDER THEIR LEGACY DEBENTURES AND LEGACY NOTES WILL BE DEEMED TO HAVE CONSENTED TO THE PROPOSED AMENDMENTS WITH RESPECT TO THE SECURITIES TENDERED. HOLDERS WHO DESIRE ONLY TO CONSENT TO THE PROPOSED AMENDMENTS WILL NOT RECEIVE THE EXCHANGE OFFER CONSIDERATION, AND NEED ONLY VALIDLY CONSENT TO THE PROPOSED AMENDMENTS ON OR PRIOR TO THE EXPIRATION DATE. - -------------------------------------------------------------------------------- Holders who desire to tender their Legacy Debentures and Legacy Notes pursuant to the Exchange Offer and receive the Exchange Offer consideration are required to consent to the Proposed Amendments with respect to such Legacy Debentures and Legacy Notes. The completion, execution and delivery of the Consent and Letter of Transmittal by a holder in connection with the tender of Legacy Debentures and Legacy Notes will constitute a Consent to the Proposed Amendments with respect to such Legacy Debentures and Legacy Notes. A holder may consent to the Proposed Amendments without tendering the Legacy Debentures and Legacy Notes related thereto. This material relating to the Exchange Offer and Consent Solicitation is being forwarded to you as the beneficial owner of Legacy Debentures and/or Legacy Notes carried by us for your account or benefit but not registered in your name. A tender of any Legacy Debentures and Legacy Notes and delivery of the related Consents with respect to any Legacy Debentures and Legacy Notes may only be made by us as the registered holder and pursuant to your instructions. Therefore, Enterprises urges beneficial owners of Legacy Debentures and Legacy Notes registered in the name of a broker, dealer, commercial bank, trust company or other nominee to contact such registered holder promptly if they wish to tender Legacy Debentures and Legacy Notes pursuant to the Exchange Offer or deliver Consents pursuant to the Consent Solicitation. Accordingly, we request instructions as to whether you wish us to tender and deliver Consents with respect to any or all of the Legacy Debentures or Legacy Notes held by us for your account. We urge you to carefully read the Consent Solicitation Statement/Prospectus, the Consent and Letter of Transmittal and the other materials provided herewith before instructing us to tender your Legacy Debentures and/or Legacy Notes and to deliver the related Consents with respect to such Legacy Debentures and Legacy Notes. Your instructions to us should be forwarded as promptly as possible in order to permit us to tender Legacy Debentures and Legacy Notes and deliver the related Consents on your behalf in accordance with the provisions of the Exchange Offer and the Consent Solicitation. PLEASE NOTE THAT THE EXCHANGE OFFER WILL EXPIRE ON THE EXPIRATION DATE. Tenders of Legacy Debentures and Legacy Notes may be withdrawn at any time prior to or on the Expiration Date, but the Exchange Offer consideration will not be payable in respect of the Legacy Debentures and Legacy Notes so withdrawn. A valid withdrawal of Legacy Debentures and Legacy Notes will constitute the concurrent valid revocation of such holder's related Consent. A valid revocation of a Consent will also constitute a withdrawal of the related Legacy Debentures and Legacy Notes, unless waived by Enterprises. 2 Your attention is directed to the following: 1. The Exchange Offer is for any and all Legacy Debentures and Legacy Notes that are outstanding. 2. If you desire to Consent with respect to any Legacy Debentures and Legacy Notes pursuant to the Consent Solicitation and receive the Exchange Offer consideration, we must receive your instructions in ample time to permit us to effect a tender of Legacy Debentures and Legacy Notes and submit the related Consent on your behalf on or prior to 5:00 p.m., New York City time, on the Expiration Date. 3. Enterprises' obligation to pay the Exchange Offer consideration for tendered Legacy Debentures and Legacy Notes is subject to certain conditions set forth in the Consent Solicitation Statement/Prospectus under the caption "The Exchange Offer and Consent Solicitation--Conditions to the Exchange Offer and Consent Solicitation." If you wish to have us tender any or all of your Legacy Debentures and Legacy Notes held by us for your account or benefit and deliver your Consents pursuant to the Exchange Offer and Consent Solicitation, please so instruct us by completing, executing and returning to us the instruction form that appears below. The accompanying Consent and Letter of Transmittal is furnished to you for informational purposes only and may not be used by you to tender Legacy Debentures and Legacy Notes held by us and registered in our name for your account or to deliver Consents. 3 INSTRUCTIONS The undersigned acknowledge(s) receipt of your letter and the enclosed material referred to therein relating to the Exchange Offer and the Consent Solicitation of Enterprises with respect to the Legacy Debentures and Legacy Notes. THIS WILL INSTRUCT YOU TO TENDER THE PRINCIPAL AMOUNT OF LEGACY DEBENTURES AND LEGACY NOTES INDICATED BELOW HELD BY YOU FOR THE ACCOUNT OR BENEFIT OF THE UNDERSIGNED AND TO DELIVER THE UNDERSIGNED'S CONSENT WITH RESPECT TO THE PRINCIPAL AMOUNT OF LEGACY DEBENTURES AND LEGACY NOTES INDICATED BELOW, PURSUANT TO THE TERMS OF AND CONDITIONS SET FORTH IN THE CONSENT SOLICITATION STATEMENT/PROSPECTUS DATED AUGUST 7, 2001, AND THE CONSENT AND LETTER OF TRANSMITTAL. - ------------------------------------------------------------------------------------------ DESCRIPTION OF LEGACY DEBENTURES AND LEGACY NOTES TENDERED - ------------------------------------------------------------------------------------------ PRINCIPAL AMOUNT TENDERED AND AS TO PRINCIPAL AMOUNT AS AGGREGATE PRINCIPAL WHICH RELATED TO WHICH ONLY RELATED CERTIFICATE NUMBER(S) AMOUNT REPRESENTED* CONSENTS ARE GIVEN* CONSENTS ARE GIVEN** - ------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------
* Legacy Debentures and Legacy Notes tendered must be in a minimum principal amount of $1,000. Unless otherwise indicated in the column labeled "Principal Amount Tendered And As To Which Related Consents Are Given" and subject to the terms and conditions of the Consent Solicitation Statement/Prospectus, a holder will be deemed to have tendered the entire aggregate principal amount represented by the Legacy Debentures and Legacy Notes indicated in the column labeled "Aggregate Principal Amount Represented." ** Any principal amount indicated in the column labeled "Principal Amount Tendered And As To Which Related Consents Are Given" will be deemed to include a Consent to the Proposed Amendments notwithstanding any contrary entry in this column. - -------------------------------------------------------------------------------- PLEASE SIGN HERE - -------------------------------------------------------------------------------- Signature(s) - -------------------------------------------------------------------------------- Name(s) (Please Print) - -------------------------------------------------------------------------------- Address - -------------------------------------------------------------------------------- Zip Code - -------------------------------------------------------------------------------- Area Code and Telephone No. - -------------------------------------------------------------------------------- Tax Identification or Social Security No. - -------------------------------------------------------------------------------- My Account Number With You - -------------------------------------------------------------------------------- Date - -------------------------------------------------------------------------------- 4 EX-99.(A)(1)(V) 7 a2055822zex-99_a1v.txt EXHIBIT 99(A)(1)(V) EXHIBIT (a)(1)(v) GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER--Social Security numbers have nine digits separated by two hyphens: i.e. 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e. 00-0000000. The table below will help determine the number to give the payer. All "Section" references are to the Internal Revenue Code of 1986, as amended.
- ------------------------------------------------------ ------------------------------------------------------ GIVE THE NAME AND EMPLOYER GIVE THE NAME AND SOCIAL IDENTIFICATION NUMBER OF-- SECURITY NUMBER OF-- FOR THIS TYPE OF ACCOUNT: FOR THIS TYPE OF ACCOUNT: - ------------------------------------------------------ ------------------------------------------------------ 1. Individual The individual 6. Sole proprietorship The owner(3) 2. Two or more individuals The actual owner of the 7. A valid trust, estate The legal entity(4) (joint account) account or, of combined or pension trust funds, the first individual on the account(1) 3. Custodian account of a The minor(2) 8. Corporate The corporation minor (Uniform Gift to Minors Act) 4. a. The usual revocable The grantor-trustee(1) 9. Association, club, The organization savings trust account religious, charitable, (grantor is also educational or other trustee) tax-exempt organization b. So-called trust The actual owner(1) 10. Partnership The partnership account that is not a legal or valid trust under state law 5. Sole proprietorship The owner(3) 11. A broker or registered The broker or nominee nominee 12. Account with the The public entity Department of Agriculture in the name of a public entity (such as a State or local government, school district or prison) that receives agricultural program payments - ------------------------------------------------------ ------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish. If only one person on a joint account has a social security number, that person's number must be furnished. (2) Circle the minor's name and furnish the minor's social security number. (3) You must show your individual name, but you may also enter your business or "doing business as" name. You may use either your social security number or your employer identification number (if you have one). (4) List first and circle the name of the legal trust, estate or pension trust. (Do not furnish the identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title.) NOTE: If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed. GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 PAGE 2 OBTAINING A NUMBER If you do not have a taxpayer identification number or you don't know your number, obtain Form SS-5, Application for a Social Security Number Card, or Form SS-4, Application for Employer Identification Number, at the local office of the Social Security Administration or the Internal Revenue Service (the "IRS") and apply for a number. PAYEES EXEMPT FROM BACKUP WITHHOLDING Payees specifically exempted from withholding include: - An organization exempt from tax under Section 501(a), an individual retirement account (IRA), or a custodial account under Section 403(b)(7), if the account satisfies the requirements of Section 401(f)(2). - The United States or a state thereof, the District of Columbia, a possession of the United States, or a political subdivision or wholly-owned agency or instrumentality of any one or more of the foregoing. - An international organization or any agency or instrumentality thereof. - A foreign government or any political subdivision, agency or instrumentality thereof. Payees that may be exempt from backup withholding include: - A corporation. - A financial institution. - A dealer in securities or commodities required to register in the United States, the District of Columbia or a possession of the United States. - A real estate investment trust. - A common trust fund operated by a bank under Section 584(a). - An entity registered at all times during the tax year under the Investment Company Act of 1940. - A middleman known in the investment community as a nominee or custodian or listed in the most recent publication of the American Society of Corporate Secretaries, Inc. Nominee List. - A futures commission merchant registered with the Commodity Futures Trading Commission. - A foreign central bank of issue. Payments of dividends and patronage dividends generally exempt from backup withholding include: - Payments to nonresident aliens subject to withholding under Section 1441. - Payments to partnerships not engaged in a trade or business in the United States and that have at least one nonresident partner. - Payments of patronage dividends not paid in money. - Payments made by certain foreign organizations. - Section 404(k) payments made by an ESOP. Payments of interest generally exempt from backup withholding include: - Payments of interest on obligations issued by individuals. NOTE: You may be subject to backup withholding if $600 or more of interest is paid in the course of the payer's trade or business to a payee and you have not provided your correct taxpayer identification number to the payer. - Payments of tax-exempt interest (including exempt-interest dividends under Section 852). - Payments described in Section 6049(b)(5) to nonresident aliens. - Payments on tax-free covenant bonds under Section 1451. - Payments made by certain foreign organizations. - Mortgage interest paid to you. Certain payments other than interest, dividends and patronage dividends that are exempt from information reporting are also exempt from backup withholding. For details, see Sections 6041, 6041A, 6042, 6044, 6045, 6049, 6050A and 6050N and the regulations promulgated thereunder. EXEMPT PAYEES DESCRIBED ABOVE MUST FILE SUBSTITUTE FORM W-9 TO AVOID POSSIBLE ERRONEOUS BACKUP WITHHOLDING. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, SIGN AND DATE THE FORM AND RETURN IT TO THE PAYER. IF YOU ARE A NON-RESIDENT ALIEN OR A FOREIGN ENTITY NOT SUBJECT TO BACKUP WITHHOLDING, FILE WITH PAYER A COMPLETED INTERNAL REVENUE FORM W-8BEN (CERTIFICATE OF FOREIGN STATUS). PRIVACY ACT NOTICE--Section 6109 requires you to provide your correct taxpayer identification numbers to payers, who must report the payments to the IRS. The IRS uses the numbers for identification purposes and may also provide this information to various government agencies for tax enforcement or litigation purposes. Payers must be given the numbers whether or not recipients are required to file tax returns. Payers must generally withhold 31% of taxable interest, dividend and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply. PENALTIES (1) FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER--If you fail to furnish your correct taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. (2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING--If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty. (3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION--Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE. EX-99.(A)(5)(I) 8 a2055822zex-99_a5i.txt EXHIBIT 99(A)(5)(I) EXHIBIT (a)(5)(i) THIS ANNOUNCEMENT IS NEITHER AN OFFER TO PURCHASE NOR A SOLICITATION OF AN OFFER TO SELL ANY SECURITIES. THE EXCHANGE OFFER IS MADE SOLELY BY THE CONSENT SOLICITATION STATEMENT/PROSPECTUS, DATED AUGUST 7, 2001, AND THE RELATED CONSENT AND LETTER OF TRANSMITTAL, AND ANY AMENDMENTS OR SUPPLEMENTS THERETO, AND IS BEING MADE TO ALL HOLDERS OF LEGACY DEBENTURES AND LEGACY NOTES. PRICE ENTERPRISES, INC. IS NOT AWARE OF ANY JURISDICTION IN WHICH THE MAKING OF THE EXCHANGE OFFER AND CONSENT SOLICITATION IS NOT IN COMPLIANCE WITH APPLICABLE LAW. IF ENTERPRISES BECOMES AWARE OF ANY JURISDICTION IN WHICH THE MAKING OF THE EXCHANGE OFFER AND CONSENT SOLICITATION WOULD NOT BE IN COMPLIANCE WITH APPLICABLE LAW, ENTERPRISES WILL MAKE A GOOD FAITH EFFORT TO COMPLY WITH ANY SUCH LAW. IF, AFTER SUCH GOOD FAITH EFFORT, ENTERPRISES CANNOT COMPLY WITH ANY SUCH LAW, THE EXCHANGE OFFER AND CONSENT SOLICITATION WILL NOT BE MADE TO (NOR WILL TENDERS OF LEGACY DEBENTURES AND LEGACY NOTES AND CONSENTS BE ACCEPTED FROM OR ON BEHALF OF) THE HOLDERS OF LEGACY DEBENTURES AND LEGACY NOTES RESIDING IN SUCH JURISDICTION. IN ANY JURISDICTION WHERE THE SECURITIES, BLUE SKY OR OTHER LAWS REQUIRE THE EXCHANGE OFFER TO BE MADE BY A LICENSED BROKER OR DEALER, THE EXCHANGE OFFER SHALL BE DEEMED TO BE MADE ON BEHALF OF ENTERPRISES BY ONE OR MORE REGISTERED BROKERS OR DEALERS LICENSED UNDER THE LAWS OF THAT JURISDICTION. NOTICE OF OFFER TO EXCHANGE SHARES OF 8 3/4% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK OF PRICE ENTERPRISES, INC. FOR ANY AND ALL OUTSTANDING 9% CONVERTIBLE REDEEMABLE SUBORDINATED SECURED DEBENTURES DUE 2004 AND 10% SENIOR REDEEMABLE SECURED NOTES DUE 2004 OF EXCEL LEGACY CORPORATION AND SOLICITATION OF CONSENTS FOR AMENDMENT OF THE RELATED INDENTURES - -------------------------------------------------------------------------------- THE EXCHANGE OFFER AND CONSENT SOLICITATION WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON SEPTEMBER 11, 2001, UNLESS EXTENDED. - -------------------------------------------------------------------------------- Price Enterprises, Inc., a Maryland corporation ("Enterprises"), is offering to exchange shares of its 83/4% Series A Cumulative Redeemable Preferred Stock, par value $0.0001 per share (the "Enterprises Series A Preferred Stock"), for any and all outstanding 9% Convertible Redeemable Subordinated Secured Debentures due 2004 (the "Legacy Debentures") and 10% Senior Redeemable Secured Notes due 2004 (the "Legacy Notes") of Excel Legacy Corporation, a Delaware corporation ("Legacy"), upon the terms and subject to the conditions set forth in the Consent Solicitation Statement/Prospectus, dated August 7, 2001 (the "Consent Solicitation Statement/Prospectus"), and the related Consent and Letter of Transmittal (which, as amended and supplemented from time to time, together constitute the "Exchange Offer"). For purposes of the Exchange Offer, the Legacy Debentures and Legacy Notes are valued at their face value and the Enterprises Series A Preferred Stock is being valued at $15.00 per share. As a result, 66.67 shares of Enterprises Series A Preferred Stock (the "Exchange Offer Consideration") are being offered for each $1,000 in principal amount of Legacy Debentures and Legacy Notes tendered. Interest on the Legacy Debentures and Legacy Notes tendered will continue to accrue and be payable on the normal interest payment date of August 15, 2001, but will not accrue or be payable from that date to the date of exchange. Instead, tendering holders of Legacy Debentures and Legacy Notes accepted for exchange will be deemed holders of Enterprises Series A Preferred Stock as of August 16, 2001 with respect to the payment of distributions on the Enterprises Series A Preferred Stock. The board of directors of Enterprises is also soliciting the consents (the "Consent Solicitation") of holders of Legacy Debentures and Legacy Notes to amend the indentures governing the Legacy Debentures and Legacy Notes to release the collateral securing these securities. Holders who desire to tender their Legacy Debentures and Legacy Notes in the Exchange Offer are required to consent to the proposed amendments. As a result, if you tender your Legacy Debentures and Legacy Notes, you will be deemed to have consented to the proposed amendments with respect to the securities tendered. Enterprises will accept consents to the proposed amendments from holders who are not also tendering their Legacy Debentures and Legacy Notes in the Exchange Offer, but holders who consent to the proposed amendments and do not tender their Legacy Debentures and Legacy Notes will receive no consideration for consenting. Enterprises and Legacy have entered into a merger agreement, which provides that a wholly-owned subsidiary of Enterprises will merge with and into Legacy and Legacy will become a wholly-owned subsidiary of Enterprises. The merger agreement obligates Enterprises to commence the Exchange Offer and Consent Solicitation. The Exchange Offer and Consent Solicitation are conditioned on (1) the completion of the merger and (2) the general conditions described in the Consent Solicitation Statement/Prospectus. LEGACY'S BOARD OF DIRECTORS HAS UNANIMOUSLY APPROVED THE EXCHANGE OFFER AND THE MERGER AGREEMENT, UNANIMOUSLY RECOMMENDS APPROVAL OF THE MERGER AGREEMENT TO ITS STOCKHOLDERS AND UNANIMOUSLY RECOMMENDS THAT THE HOLDERS OF LEGACY DEBENTURES AND LEGACY NOTES ACCEPT THE EXCHANGE OFFER AND CONSENT TO THE PROPOSED AMENDMENTS. The proposed amendments will amend the indentures governing the Legacy Debentures and Legacy Notes to (1) release the collateral securing the Legacy Debentures and Legacy Notes, (2) terminate the associated pledge agreements which pledge the collateral for the benefit of holders of Legacy Debentures and Legacy Notes, (3) delete definitions and cross-references from the indentures which would be rendered inapplicable as a result of the proposed amendments described above and (4) change the name of the securities to reflect that they are not secured obligations of Legacy. The consent of the holders of a majority of the outstanding principal amount of Legacy Debentures is required to approve the proposed amendments to the indenture governing the Legacy Debentures. The consent of the holders of a majority of the outstanding principal amount of the Legacy Notes is required to approve the proposed amendments to the indenture governing the Legacy Notes. If the proposed amendments become effective, the Legacy Debentures and Legacy Notes not tendered will become unsecured obligations of Legacy, a subsidiary of the combined company, Price Legacy Corporation. For purposes of the Exchange Offer, validly tendered Legacy Debentures and Legacy Notes will be deemed to have been accepted for exchange by Enterprises if, as and when it gives written notice thereof to Mellon Investor Services LLC in its capacity as exchange agent (the "Exchange Agent"). For purposes of the Consent Solicitation, consents delivered to the Exchange Agent will be deemed to have been accepted by Enterprises if, as and when Legacy and the trustee execute the supplemental indentures after the expiration date. Upon the terms and subject to the conditions of the Exchange Offer (including if the Exchange Offer is extended or amended, the terms and conditions of any such extension or amendment) and applicable law, Enterprises (1) will exchange shares of Enterprises Series A Preferred Stock for all Legacy Debentures and Legacy Notes validly tendered (and not withdrawn) under the Exchange Offer on or prior to the expiration date that are coupled with consents validly delivered or deemed delivered (and not revoked) under the Consent Solicitation on or prior to the expiration date and (2) accept all consents validly delivered or deemed delivered (and not revoked) under the Consent Solicitation on or prior to the expiration date. This exchange will be made by the deposit by Enterprises of shares of Enterprises Series A Preferred Stock constituting the Exchange Offer Consideration with the Exchange Agent as soon as practicable after the expiration date so that the exchange of shares of Enterprises Series A Preferred Stock representing the Exchange Offer Consideration may be delivered to tendering debtholders as soon as practicable after the expiration date. The Exchange Agent will act as agent for tendering debtholders for the purpose of delivering shares of Enterprises Series A Preferred Stock in exchange for Legacy Debentures and Legacy Notes and associated consents. In all cases, exchange by the Exchange Agent of shares of Enterprises Series A Preferred Stock for Legacy Debentures and Legacy Notes accepted for exchange under the Exchange Offer will be made only after timely receipt by the Exchange Agent of (A) certificates representing such Legacy Debentures and Legacy Notes or timely confirmation of a book-entry transfer of such Legacy Debentures and Legacy Notes into the Exchange Agent's account at the Depository Trust Company, (B) a properly completed and duly executed Consent and Letter of Transmittal (or a manually signed facsimile thereof) and (C) any other documents required by the Consent and Letter of Transmittal. The Exchange Offer may be terminated prior to the expiration date if the merger agreement is terminated. Subject to applicable securities laws and the terms and conditions in the Consent Solicitation Statement/Prospectus, Enterprises also reserves the right, on or prior to the expiration of the Exchange Offer, to (1) waive any and all conditions to the Exchange Offer and Consent Solicitation, (2) extend or terminate the Exchange Offer and Consent Solicitation or (3) otherwise amend the Exchange Offer and Consent Solicitation in any respect. Any extension, amendment or termination will be followed promptly by a public announcement. The announcement will be issued no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration of the Exchange Offer. During any extension, all Legacy Debentures and Legacy Notes tendered and not withdrawn will remain tendered, subject to the right of a tendering debtholder to withdraw tendered Legacy Debentures and Legacy Notes. Tenders of Legacy Debentures and Legacy Notes pursuant to the Exchange Offer are irrevocable, except that Legacy Debentures and Legacy Notes may be withdrawn (1) at any time on or prior to 5:00 p.m., New York City time, on September 11, 2001 (or the latest time and date at which the Exchange Offer, if extended by Enterprises, shall expire) or (2) if the Exchange Offer is terminated without any Legacy Debentures and Legacy Notes being exchanged thereunder. A valid withdrawal of tendered Legacy Debentures and Legacy Notes effected on or prior to the expiration date will constitute the concurrent valid revocation of the related consent. In order to revoke a consent, the tendering debtholder must withdraw any related tendered Legacy Debentures and Legacy Notes. For a withdrawal of tendered Legacy Debentures and Legacy Notes or the revocation of consents, as the case may be, to be effective, a written or facsimile transmission notice of withdrawal or revocation must be received by the Exchange Agent on or prior to the expiration date at its address set forth on the back cover of the Consent Solicitation Statement/Prospectus. Any such notice of withdrawal must (A) specify the name of the person who tendered the Legacy Debentures and Legacy Notes to be withdrawn or to which the revocation of consents relates, (B) contain the description of the Legacy Debentures and Legacy Notes to be withdrawn and identify the certificate number or numbers shown on the particular certificates evidencing those Legacy Debentures and Legacy Notes (unless those Legacy Debentures and Legacy Notes were tendered by book-entry transfer) and the aggregate principal amount represented by those Legacy Debentures and Legacy Notes and (C) be signed in the same manner as the original signature on the Consent and Letter of Transmittal by which those Legacy Debentures and Legacy Notes were tendered (including any required signature guarantees) or the related consent was given or be accompanied by evidence sufficient to the Exchange Agent that the person withdrawing the tender or revoking the consent has succeeded to the beneficial ownership of the Legacy Debentures and Legacy Notes. A valid revocation of consents effected on or prior to the expiration date will constitute the concurrent valid withdrawal of the Legacy Debentures and Legacy Notes to which those consents relate. All questions as to the validity, form and eligibility (including time of receipt) of notices of withdrawal and revocation of consents will be determined by Enterprises, in its reasonable discretion (which determination shall be final and binding). Neither Enterprises, the Exchange Agent, Mellon Investor Services LLC in its capacity as information agent (the "Information Agent"), the trustee or any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or revocation of consents, or incur any liability for failure to give any such notification. The information required to be disclosed by Rule 13e-4(d)(1) under the Securities Exchange Act of 1934, as amended, is contained in the Schedule TO and Consent Solicitation Statement/Prospectus filed by Enterprises with the Securities and Exchange Commission and is incorporated herein by reference. Legacy has provided Enterprises with Legacy's debtholder list for the purpose of disseminating the Exchange Offer to holders of Legacy Debentures and Legacy Notes. The Consent Solicitation Statement/Prospectus and the related Consent and Letter of Transmittal will be mailed to record holders of the Legacy Debentures and Legacy Notes and will be furnished to brokers, banks and similar persons whose names, or the names of whose nominees, appear on Legacy's debtholder list or, if applicable, who are listed as participants in a clearing agency's security position listing for subsequent transmittal to beneficial owners of the Legacy Debentures and Legacy Notes. THE CONSENT SOLICITATION STATEMENT/PROSPECTUS AND THE RELATED CONSENT AND LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ BEFORE ANY DECISION IS MADE WITH RESPECT TO THE EXCHANGE OFFER. Questions and requests for assistance or for copies of the Consent Solicitation Statement/Prospectus and the related Consent and Letter of Transmittal, and other Exchange Offer materials, may be directed to the Information Agent as set forth below, and copies will be furnished promptly at Enterprises' expense. You may also contact your broker, dealer, commercial bank or trust company or nominee for assistance concerning the Exchange Offer and Consent Solicitation. No fees or commissions will be paid to brokers, dealers or other persons (other than the Exchange Agent and Information Agent) for soliciting tenders of Legacy Debentures and Legacy Notes pursuant to the Exchange Offer. THE INFORMATION AGENT AND EXCHANGE AGENT FOR THE EXCHANGE OFFER AND CONSENT SOLICITATION IS: MELLON INVESTOR SERVICES LLC 44 Wall Street 7th Floor New York, NY 10005 For Inquiries, Please Call: (800) 335-7842 August 10, 2001 EX-99.(A)(5)(II) 9 a2055822zex-99_a5ii.txt EXHIBIT 99(A)(5)(II) EXHIBIT (a)(5)ii) NEWS EXCEL LEGACY CORPORATION & PRICE ENTERPRISES, INC. FOR IMMEDIATE RELEASE: AUGUST 10, 2001 (XLG/PREN) CONTACT: GRAHAM R. BULLICK, PH.D., SENIOR VICE PRESIDENT, EXCEL LEGACY CORPORATION/PRICE ENTERPRISES, INC., 17140 BERNARDO CENTER DRIVE, SUITE 300, SAN DIEGO, CA 92128 (858) 675-9400 EXCEL LEGACY CORPORATION AND PRICE ENTERPRISES, INC. ANNOUNCE NEW ANNUAL MEETING DATE AND COMMENCEMENT OF EXCHANGE OFFER AND TENDER OFFER SAN DIEGO, CA. (August 10, 2001) - Excel Legacy Corporation (Amex: XLG) and Price Enterprises, Inc. (Nasdaq: PREN) announced the date of their 2001 annual meetings of stockholders. The Legacy meeting will be held at the Rancho Bernardo Inn in San Diego, CA at 9:00 a.m. on September 11, 2001. The Price Enterprises meeting will be held at the Rancho Bernardo Inn in San Diego, CA at 11:00 a.m. on September 11, 2001. Stockholders of record on August 3, 2001 are entitled to notice of and to vote at these meetings, where they will determine the outcome of the proposed merger (press release March 21, 2001) between Legacy and Price Enterprises and the proposed $100 million investment by Warburg Pincus, the global private equity firm, in the combined company, Price Legacy Corporation. Price Enterprises also announced today that, as required by the merger agreement with Legacy, Price Enterprises is commencing: o an exchange offer for all of Legacy's outstanding 9% Convertible Redeemable Subordinated Secured Debentures due 2004 and 10% Senior Redeemable Secured Notes due 2004 and related consent solicitation, and o a tender offer for all outstanding shares of Price Enterprises' common stock. The exchange offer, consent solicitation and tender offer are currently scheduled to expire at 5:00 p.m., New York City time, on September 11, 2001, unless extended. In the exchange offer, Price Enterprises is offering to exchange 66.67 shares of Price Enterprises' 8 3/4% Series A Cumulative Redeemable Preferred Stock for each $1,000 in principal amount of Legacy debentures and Legacy notes tendered. Price Enterprises is also soliciting the consents of holders of the Legacy debentures and Legacy notes to release the collateral securing these debt securities. The exchange offer and consent solicitation are detailed in the Schedule TO and Consent Solicitation Statement/Prospectus filed by Price Enterprises with the Securities and Exchange Commission. The exchange offer and consent solicitation are conditioned on the completion of the merger and other general conditions described in the Consent Solicitation Statement/Prospectus, which will be delivered to holders of the Legacy debentures and Legacy notes. In the tender offer, Price Enterprises is offering to purchase all outstanding shares of its common stock (other than those shares currently held by Legacy and those shares issued in the merger) at a purchase price of $7.00 per share, net to the seller in cash, without interest. The tender offer is detailed in the Schedule TO and Offer to Purchase filed by Price Enterprises with the Securities and Exchange Commission. The tender offer is conditioned on the completion of the merger and other general conditions described in the Offer to Purchase, which will be delivered to Price Enterprises' common stockholders. If you have any questions about the merger, exchange offer, consent solicitation or tender offer or wish to request the merger, exchange offer or tender offer documents, you may call the information agent, Mellon Investor Services LLC, at (800) 335-7842. You may also call Graham R. Bullick, Ph.D., Senior Vice President--Capital Markets of Legacy and Price Enterprises, at (858) 675-9400 ext. 316. EXCEL LEGACY CORPORATION is a real estate company which acquires, sells, develops, manages, invests, finances and operates real property and related businesses. PRICE ENTERPRISES, INC., is a REIT which acquires, develops and manages open air retail properties. #### Certain statements in this release that are not historical fact may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Such forward-looking statements involve known and unknown risks, uncertainties and other factors which may cause the actual results of Legacy and Price Enterprises to differ materially from historical results or from any results expressed or implied by such forward-looking statements, including without limitation: risks that the Legacy/Price Enterprises merger and the preferred stock investment by Warburg Pincus will not be completed as described or at all; national and local economic conditions; the competitive environment in which the companies operate; financing risks; property management risks; acquisition and development risks; potential environmental and other liabilities; and other factors affecting the real estate industry generally. The companies refer you to the documents they file from time to time with the Securities and Exchange Commission, specifically the section titled "Certain Cautionary Statements" in Legacy's Annual Report on Form 10-K for the fiscal year ended December 31, 2000 and the section titled "Factors That May Affect Future Performance" in Price Enterprises' Annual Report on Form 10-K for the fiscal year ended December 31, 2000, which discuss these and other factors that could adversely affect the companies' results. This communication is neither an offer to purchase nor a solicitation of an offer to sell any securities of Legacy or Price Enterprises. The merger, exchange offer, consent solicitation and tender offer will be effected only through a joint proxy statement/prospectus, consent solicitation statement/prospectus, offer to purchase and related documents. Investors are urged to read these materials when they become available, because they will contain important information. The joint proxy statement/prospectus, consent solicitation statement/prospectus, offer to purchase and related documents will be filed with the Securities and Exchange Commission by Legacy and Price Enterprises, as applicable. Investors may obtain a free copy of these materials (when they become available) and other documents filed by Legacy and Price Enterprises at the Commission's Web site at http://www.sec.gov. Legacy, Price Enterprises, and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies in connection with the merger and the exchange offer and consent solicitation. Such individuals may have interests in these transactions, including as a result of their securities holdings or holding of options. A detailed list of the names, affiliations and interests of the participants in these transactions is contained in the registration statements filed by Price Enterprises on July 31, 2001. -----END PRIVACY-ENHANCED MESSAGE-----