August 25, 2003
David J. Kaufman
Duane Morris LLP
227 West Monroe Street
Suite
3400
Chicago, Illinois 60606
Re: Inland Western Retail Real Estate Trust, Inc.
File No.: File
No. TP 03-124
Dear Mr. Kaufman:
In your letter dated August 25, 2003, as supplemented by conversations
with the staff, you request an exemption from Rule 102 of Regulation M and
an exemption from or, alternatively, a no-action position under, Rule
13e-4 under the Exchange Act to permit Inland Western Retail Real Estate
Trust, Inc. ("Company") to repurchase shares of its common stock under the
Company's respective Repurchase Plan while the Company is engaged in a
distribution of shares of common stock. We have attached a copy of your
letter to this response to avoid reciting the facts. Unless otherwise
noted, each defined term in this letter has the same meaning as in your
letter.
Response:
As a consequence of the continuous offerings of the Company's shares of
common stock, the Company will be engaged in a distribution of shares of
its common stock pursuant to Rule 102 of Regulation M. As a result, bids
for or purchases of shares of its common stock or any reference security
by the Company or any affiliated purchaser of the Company are prohibited
during the restricted period specified in Rule 102, unless specifically
excepted by or exempted from Rule 102. Furthermore, in connection with the
Company's periodic redemptions of shares of its common stock pursuant to
its respective Repurchase Plan, the Company may be engaged in an issuer
tender offer for purposes of Rule 13e-4 under the Exchange Act.
On the basis of your representations and the facts presented, but
without necessarily concurring in your analysis, the Commission hereby
grants an exemption from Rule 102 of Regulation M to permit the Company to
repurchase shares of its common stock under its respective Repurchase Plan
while the Company is engaged in a distribution of shares of common stock.
In granting this exemption, we considered the following facts, among
others: shareholders of the Company must have held the shares of common
stock in the Company for at least one year to participate in the
respective Repurchase Plan; there is no trading market for the Company's
common stock; the Company will purchase shares of its common stock at a
price related to, and at a fixed discount from, the public offering price
of its common stock at the time of repurchase; in any consecutive 12-month
period the number of shares repurchased by the Company under its
Repurchase Plan will not exceed 5% of the number of shares of outstanding
common stock of the Company as of the beginning of such 12-month period;
and the terms of the Repurchase Plans will be fully disclosed in the
Company's prospectus. This exemption is subject to the condition that the
Company shall terminate its Repurchase Plan during the distribution of its
common stock if a secondary market for its common stock develops.
In addition, based upon your facts and representations, the Division of
Corporation Finance will not recommend that the Commission take
enforcement action under Rule 13e-4 with respect to repurchases made under
the Repurchase Plan. In issuing this no-action position, the Division of
Corporation Finance considered the following facts, among others: that in
any consecutive 12-month period the number of shares repurchased by the
Company under its Repurchase Plan will not exceed 5% of the number of
shares of outstanding common stock of the Company as of the beginning of
such 12-month period; the repurchase price will be based on the value of
the Company's properties or a fixed pricing schedule, as the case may be,
though at no time will the repurchase price exceed the current public
offering price; purchases will be made on a monthly basis; shareholders
can tender shares for repurchase at any time; shareholders can withdraw
tendered shares at any time prior to their repurchase; the Company will
purchase shares on a pro rata basis at the end of each month in the event
the amount of available proceeds is insufficient to satisfy all of the
current repurchase requests; the Company will provide thirty days advance
notice prior to amending or suspending the Repurchase Plan; the terms of
the Repurchase Plan will be fully disclosed in the Company's prospectus;
and there is no trading market in the Company's common stock.
The foregoing exemption from Rule 102 and no-action position taken
under Rule 13e-4 are based solely on your representations and the facts
presented to the staff, and are strictly limited to the application of
Rule 102 and Rule 13e-4 to the Repurchase Plan as described above. The
Repurchase Plan should be discontinued, pending presentation of the facts
for our consideration, in the event that any material change occurs with
respect to any of those facts or representations. In addition, your
attention is directed to the anti-fraud and anti-manipulation provisions
of the federal securities laws, particularly Section 10(b) of the Exchange
Act, and Rule 10b-5 thereunder. Responsibility for compliance with these
and any other applicable provisions of the federal securities laws must
rest with the Company. The Division of Market Regulation and Division of
Corporation Finance express no view with respect to any other question
that the Repurchase Plan may raise, including, but not limited to, the
adequacy of the disclosure concerning, and the applicability of other
federal or state laws to, the Repurchase Plan.
For the Commission, by the Division of
Corporation Finance, pursuant to delegated
authority,
Brian V. Breheny Chief Office of Mergers
& Acquisitions Division of Corporation Finance |
For the Commission, by the Division of Market
Regulation, pursuant to delegated authority,
James A.
Brigagliano Assistant Director Division of Market
Regulation |
Incoming Letter
The incoming
letter is attached in PDF format.
http://www.sec.gov/divisions/marketreg/mr-noaction/inlandwest082503.htm