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Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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WESTERN INVESTMENT
REAL ESTATE TRUST
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
California 94-6100058
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
3450 California Street
San Francisco, California 94118
Telephone No. (415) 929-0211
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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Western Investment Real Estate Trust
1998 Equity Incentive Plan
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BRADLEY N. BLAKE
President and Chief Executive Officer
Western Investment Real Estate Trust
3450 California Street
San Francisco, California 94118
Telephone No. (415) 929-0211
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
DAVID J. ROMANSKI
Steinhart & Falconer LLP
333 Market Street, 32nd Floor
San Francisco, California 94105
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED OFFERING PRICE PER AGGREGATE OFFERING PRICE REGISTRATION FEE
SECURITY
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Common Shares of Beneficial 850,000 $ 12.72 $10,812,000 $3,189.54(2)
Interest (1)
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(1) Pursuant to Rule 416 under the Securities Act, this Registration
Statement shall also cover any additional Common Shares that become
issuable under the 1998 Equity Incentive Plan (the "Plan") by reason of a
share dividend, share split, recapitalization or other similar transaction
described in the Plan that increases the number of the Registrant's
outstanding Common Shares.
(2) Estimated solely for the purpose of computing the amount of the
registration fee required by Section 6(b) of the Securities Act and
computed pursuant to Rule 457(c) under the Securities Act based on the
average of the high and low prices of the Common Shares on July 31, 1998,
as reported on the American Stock Exchange.
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EXPLANATORY NOTE
The Reoffer Prospectus which is filed as part of this Registration
Statement has been prepared in accordance with the requirements of Part I of
Form S-3 and may be used for reoffers or resales of the common shares, no par
value, of Western Investment Real Estate Trust acquired by "affiliates" (as
such term is defined in Rule 405 promulgated under the Securities Act of
1933, as amended (the "Securities Act")).
REOFFER PROSPECTUS
850,000 SHARES
WESTERN INVESTMENT REAL ESTATE TRUST
COMMON SHARES OF BENEFICIAL INTEREST
This Reoffer Prospectus (the "Prospectus") is being used in connection
with the offering by certain selling shareholders (the "Selling Shareholders")
of 850,000 Common Shares of Beneficial Interest, no par value per share (the
"Common Shares"), of Western Investment Real Estate Trust (the "Company'),
who may be deemed to be "affiliates" of the Company (as such term is defined
in Rule 405 promulgated under the Securities Act of 1933, as amended (the
"Securities Act")).
The Common Shares may be offered by the Selling Shareholders from time
to time in transactions on the American Stock Exchange ("Amex"), in
negotiated transactions, or a combination of such methods of sale, at prices
related to prevailing market prices, or at negotiated prices. The Selling
Shareholders may effect such transactions by selling the shares to or through
broker-dealers, and such broker-dealers may receive compensation in the form
of discounts, concessions or commissions from the Selling Shareholders and/or
the purchasers as principal, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions).
None of the proceeds from the sale of the shares by any of the Selling
Shareholders will be received by the Company. The Company has agreed to bear
all expenses in connection with the registration of the shares being offered
by such Selling Shareholders.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is August 5, 1998
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance
therewith, files reports and other information with the Securities and
Exchange Commission (the "Commission"). The Company has furnished and
intends to furnish reports to its shareholders, which will include financial
statements audited by its independent certified public accountants, and such
other reports as it may determine to furnish or as required by law, including
Sections 13(a) and 15(d) of the Exchange Act. Proxy statements, reports and
other information concerning the Company can be inspected and copied at the
Commission's office at 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549, and at its regional offices located in the Northwestern Atrium Center,
Suite 1400, 500 West Madison Street, Chicago, Illinois 60661 and 7 World
Trade Center, Suite 1300, New York, New York 10048. Copies of such material
can be obtained from the Public Reference Section of the Commission, 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. The
Commission maintains an Internet Web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically, and the address of such site is http://www.sec.gov. The
Company's Common Shares are listed on the American Stock Exchange ("Amex")
and similar information concerning the Company can be inspected and copied at
the offices of the Amex, 86 Trinity Place, New York, New York 10006.
The Company has filed a registration statement (the "Registration
Statement") on Form S-8 with the Commission registering the Common Shares
offered hereby in compliance with the Securities Act. This Prospectus, which
constitutes a part of the Registration Statement, does not contain all of the
information set forth in the Registration Statement, certain items of which
are contained in schedules and exhibits to the Registration Statement as
permitted by the rules and regulations of the Commission. Statements
contained in this Prospectus as to the contents of any agreement, instrument
or other document referred to are not necessarily complete. With respect to
each such agreement, instrument or other document filed as an exhibit to the
Registration Statement, reference is made to the exhibit for a more complete
description of the matter involved, and each such statement shall be deemed
qualified in its entirety by such reference.
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERINGS HEREIN CONTAINED AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY OR THE SELLING SHAREHOLDERS. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY,
THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF OR THAT ANY INFORMATION CONTAINED HEREIN IS CORRECT AS
OF ANY TIME SUBSEQUENT TO ITS DATE.
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INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company are
incorporated herein by reference as of the date thereof:
(1) Annual Report on Form 10-K for the year ended December 31, 1997;
(2) Quarterly Report on Form 10-Q for the quarter ended June 30, 1998;
(3) The description of the Company's Common Shares contained in the
Company's Registration Statement on Form S-3, dated August 1, 1997.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the
date of this Prospectus and prior to the termination of the offering
registered hereby shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the date of the filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein (or in
any other subsequently filed document which is also incorporated or deemed to
be incorporated by reference herein) modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus. Subject to
the foregoing, all information appearing herein is qualified in its entirety
by the information appearing in the documents incorporated herein by
reference.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON WRITTEN OR
ORAL REQUEST, AT NO CHARGE, FROM THE COMPANY. REQUESTS SHOULD BE DIRECTED TO
DENNIS D. RYAN, EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER OF THE
COMPANY, 3450 CALIFORNIA STREET, SAN FRANCISCO, CA 94118, TELEPHONE NUMBER:
(415) 929-0211.
FORWARD LOOKING STATEMENTS
THIS PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF
SECTION 27A OF THE SECURITIES ACT OF 1933, AS AMENDED, AND SECTION 21E OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. THE COMPANY'S ACTUAL RESULTS COULD
DIFFER MATERIALLY FROM THOSE SET FORTH IN SUCH FORWARD-LOOKING STATEMENTS.
CERTAIN FACTORS THAT MIGHT CAUSE SUCH A DIFFERENCE ARE DISCUSSED IN THE SECTION
ENTITLED "RISK FACTORS" (STARTING ON PAGE 10). THE COMPANY CAUTIONS THE READER,
HOWEVER, THAT THE FACTORS DISCUSSED IN THAT SECTION MAY NOT BE EXHAUSTIVE.
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THE COMPANY
GENERAL
The Company is a self-administered, self-advised real estate investment
trust ("REIT") which acquires, manages, leases, finances, develops, and
redevelops grocery and drug store anchored neighborhood and community
shopping centers, commercial office buildings and industrial properties
primarily located in secondary and tertiary markets in the Western United
States. As of June 30, 1998, the Company owned 44 retail properties, 9
commercial properties, and 2 industrial properties. Additionally, the
Company owned 23 unimproved pads as well as approximately 22 acres of
undeveloped land adjacent to two of its shopping centers. In general, the
Company's markets have exhibited positive supply and demand dynamics and
improving retail sales over the past 18 months. As of June 30, 1998,
occupancy of the Company's properties was approximately 93.5%.
BUSINESS STRATEGY
The Company's primary objective is to achieve a competitive total annual
return for shareholders through consistent growth in Funds From Operations
("FFO") per share. The Company seeks to achieve this objective by (i)
realizing growth from its existing portfolio, (ii) aggressively managing its
existing properties, (iii) acquiring, redeveloping and developing
neighborhood and community shopping centers in select, strategic locations,
(iv) disposing of properties that do not meet its strategic and growth
objectives, and (v) maintaining a strong and flexible financial position to
facilitate growth.
INTERNAL GROWTH
The Company seeks to improve operating margins by increasing the
occupancy rate of its properties and by increasing rental rates. During the
first two quarters of 1998, the Company's portfolio occupancy increased from
92.2% at December 31, 1997 to 93.5% at June 30, 1998. Management believes
that recent initiatives, including steps to increase occupancy, to reduce the
number and cost of tenant turnovers and to maximize renewal rental rates
will positively impact growth.
ACTIVE MANAGEMENT
The Company aggressively manages its properties with an emphasis on
achieving maximum occupancies, high tenant retention and maximum renewal
rental rates. The Company directly manages, markets, and leases 54 of its 55
properties and maintains two branch offices that are centrally located to the
properties. The Company's marketing staff works closely with the Company's
tenants on promotional and advertising activities which both draws consumers
to the shopping centers and maintains strong relationships with the national,
regional and local tenants in the Company's markets. In addition, the
Company believes that internal property management and leasing is generally
less expensive than employing independent property management, marketing, and
leasing firms due to lower commissions and fees and through economies of
scale.
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ACQUISITIONS
The Company's management intends to fuel growth through an aggressive
acquisition, redevelopment and development program. The Company has
assembled a team to target acquisition opportunities that meet its investment
criteria and return parameters. The Company is targeting neighborhood and
community shopping centers valued between $10 and $25 million in secondary
and tertiary markets with top-tier grocery or drug store anchors. The
Company intends to expand its current markets to include Oregon, Washington
and Idaho. The Company believes that its senior officers' extensive contacts
in these markets will facilitate its entry into such new markets. The
Company believes that these new markets exhibit the following positive
characteristics: lower levels of competition among buyers; highly fragmented
ownership; diversification of grocery anchors; and similar demographics to
the Company's existing markets.
During the quarter ended March 31, 1998, the Company completed the
development of an 11,000 square foot theater complex on a parcel adjacent to
its community shopping center in Elko, Nevada. Also during the quarter
ended March, 31, 1998, the Company acquired two community shopping centers
in California. Century Center, a 214,770 square foot community shopping
center located in Modesto, was acquired for approximately $17.5 million, and
Lakewood Village, a 126,500 square foot community shopping center located in
Windsor, was purchased for approximately $20.9 million. Additionally, the
Company has entered into an agreement to redevelop and finance through a
participating mortgage a 99,000 square foot shopping center in Walnut Creek,
California. Construction is estimated to be completed by the end of 1999.
On June 16, 1998, the Company agreed in principal to acquire Kienow's
Food Stores ("KFS") for approximately $57.8 million in cash and operating
partnership ("OP") units. The KFS core portfolio includes six neighborhood
shopping centers and four stand-alone buildings, all located in the Portland,
Oregon area and totaling approximately 440,000 square feet. The transaction
is subject to customary due diligence and closing conditions and is expected
to close in the third or fourth quarter of 1998. See "Recent Developments."
EXPANSION
The Company expects to expand its existing properties through the
development of adjacent land and pads within its portfolio. This type of
development enhances the existing centers and offers attractive yields with
limited risk, as the expansion space is typically leased prior to
construction. The Company owns 23 unimproved pads located within its shopping
centers that are available for development and leasing or sale.
Additionally, the Company owns a total of 22 acres of undeveloped land: 12
acres adjacent to its North Hills Shopping Center and 10 acres adjacent to
its Elko Shopping Center, both of which are located in Nevada.
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DISPOSITIONS
The Company continuously assesses its portfolio for possible dispositions
of properties that do not meet its strategic or growth objectives. The Company
is marketing the following properties for sale: The Dodge Center in Fallon,
Nevada; the Old Dominion, Inc. industrial property in Commerce City, Colorado;
and the Coast Federal Savings Bank commercial property in Salinas, California.
The total cost of properties held for sale at June 30, 1998 aggregates less
than 2% of the undepreciated real estate assets of the Company.
FINANCING STRATEGY
The Company intends to maintain a conservative financial structure in
order to preserve financial flexibility. The Company believes that the
combination of its business strategy and conservative financial structure
will allow it to achieve both long-term growth and stability. As of June 30,
1998, there was $10.1 million of secured debt and $170 million of unsecured
debt. The secured and unsecured debt represents 41% of real estate at cost.
RECENT DEVELOPMENTS
FINANCING ACTIVITIES
NOTES OFFERING. On September 25, 1997, the Company completed the sale
of $75,000,000 of Senior Notes, consisting of $25,000,000 of 7.10% Notes due
2006, $25,000,000 of 7.20% Notes due 2008 and $25,000,000 of 7.30% Notes due
2010 (the "Notes Offering").
REDEMPTION OF CONVERTIBLE DEBENTURES. On October 27, 1997, the $60.5
million remaining balance of the Company's convertible debentures was
redeemed using proceeds from the September 1997 Senior Notes Offering and an
advance on the Company's unsecured credit facility. The Company recognized
an extraordinary loss of $1.62 million on the redemption of the convertible
debentures due to the write-off of related unamortized deferred debt issuance
costs.
CREDIT FACILITIES CHANGES. On August 8, 1997, the Company's unsecured
credit facility was amended to extend the maturity date to June 30, 2000. On
December 31, 1997, the credit facility was increased from $45 million to $55
million. On April 28, 1998, the Company further increased the unsecured
credit facility from $55 million to $75 million. The unsecured credit
facility bears interest at the London Interbank Offered Rate (LIBOR) plus
1.22%.
COMPLETED ACQUISITIONS
ACQUISITION OF EXISTING SHOPPING CENTERS. During the first quarter of
1998, the Company acquired two community shopping centers, in Modesto and
Windsor, California. The acquisitions total 340,540 square feet. Both
properties illustrate the Company's reactivated
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acquisition program as it makes inroads into new, demographically strong markets
and are consistent with the Company's strategy to augment its core portfolio of
stable grocery anchored, neighborhood shopping centers.
Century Center is a 214,770 square foot community shopping center
located in Modesto, California and was purchased by the Company for
approximately $ 17.5 million in February 1998. Century Center serves as the
only shopping center in Modesto anchored by both a major grocery tenant,
Raley's Supermarket, which occupies 49,800 square feet, and a department
store, Gottschalks, which occupies 64,070 square feet. The Company intends to
optimize the center's tenant mix and enhance the property's visibility and
physical appeal through various landscaping and design improvements. Century
Center is centrally located in a mature neighborhood on one of Modesto's main
north-south thoroughfares. The Company expects an initial return on cost of
approximately 10%.
Lakewood Village is a 126,650 square foot community shopping center
located in Windsor, California and was purchased by the Company for
approximately $20.9 million in February 1998.
Both acquisitions were funded with $7.1 million of tax-deferred exchange
proceeds, advances under the Company's unsecured credit facility and the
assumption of a $10.2 million existing mortgage on the Lakewood Village
Shopping Center.
CURRENT ACQUISITIONS AND DEVELOPMENTS
NEW DEVELOPMENT. On January 6, 1998, the Company announced that it had
completed an additional phase of its shopping center in Elko, Nevada, with
the opening of Cinema 4 Theaters. The Company entered into a build-to-suit
lease with Westates Theaters Inc. to construct the 11,000 square foot
building. The addition of the four screen cinema complex is consistent with
the Company's ongoing strategy to build out undeveloped land to supplement
the continued growth of its core portfolio.
REDEVELOPMENT. On May 28, 1998, the Company entered into an agreement
to redevelop and finance through a participating mortgage a 99,000 square
foot shopping center, containing multiple anchor tenants and a variety of
shops and restaurants, in Walnut Creek, California. The lead anchor tenant
will be Andronico's, a high-end specialty grocery-store chain, that will
occupy 41,000 square feet. The Company believes this is one of the premier
retail development sites in Northern California and anticipates construction
will commence in the spring of 1999 and be completed in the fall of that year.
ACQUISITION OF KIENOW'S FOOD STORES. On June 16, 1998, the Company announced
that it had signed a non-binding letter of intent to acquire all of the
issued and outstanding stock of Kienow's Food Stores, Inc. ("KFS"). KFS is a
privately held company with a core portfolio consisting of six neighborhood
shopping centers and four stand-alone buildings, all located in the Portland,
Oregon area and totaling approximately 440,000 square feet. The Company
expects to enter into a definitive agreement in August, 1998 for a total
purchase price of approximately $57.8 million. The Company expects an initial
return on cost of 9.5-10%. However, there can be no assurances that the Company
will be able to achieve these anticipated returns or that the transaction will
be consummated.
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CHANGES IN MANAGEMENT
On January 28, 1998, O.A. Talmage retired from his positions as Chief
Executive Officer and Chairman of the Board of Trustees of the Company. O.A.
Talmage was one of the founders of the Company. Additionally, William A.
Talmage resigned from his positions as President, Chief Operating Officer and
Trustee of the Company, effective February 1, 1998.
On January 28, 1998, Western announced the appointment of Bradley N.
Blake as President and Chief Executive Officer, replacing O.A. Talmage as
Chief Executive Officer, and William A. Talmage as President. He was also
appointed a Trustee. During his real estate career, Mr. Blake has held
positions with responsibilities for shopping center acquisition, development
and operations. Most recently, Mr. Blake was managing director of Pacific
Retail Trust, a private real estate investment trust, and president of PRT
Development Corp. (a subsidiary of Pacific Retail Trust). Prior to joining
Pacific Retail Trust, Mr. Blake was a senior vice president with Spieker
Properties, a public real estate investment trust. Mr. Blake was also a
partner with Spieker Partners, serving as head of shopping center
development. Before joining Spieker, Mr. Blake served as a project director
for Trammell Crow Co. Mr. Blake holds a Bachelor of Arts degree from
Stanford University and a Masters Degree in Business Administration from the
Stanford University Graduate School of Business.
On March 9, 1998, the Company announced the appointments of Josh Smith
as Senior Vice President of Investments, and Gerald Hunt as Senior Vice
President of Operations. Mr. Smith's real estate career has involved 11
years of broad experience in shopping center acquisition, development,
redevelopment, construction, dispositions and leasing. Formerly, Mr. Smith
served as senior vice president of Pacific Retail Trust and senior vice
president of PRT Development Corp. Prior to joining Pacific Retail Trust,
Mr. Smith was a vice president of Spieker Properties, where he was
responsible for developing and redeveloping neighborhood and community
shopping centers. From 1987 to 1993, Mr. Smith served as a project director,
renovating shopping centers and developing and redeveloping office buildings
and warehouses. Mr. Smith holds a Bachelor of Arts degree from the
University of California, Berkeley.
L. Gerald Hunt joined the Company after having served as vice
president of Pacific Retail Trust, where he was responsible for the operation
of its Northern California portfolio. Prior to joining Pacific Retail Trust,
Mr. Hunt served as project director for Spieker Properties, where he was
responsible for development, acquisition, renovation and operations of
shopping centers in its Northern California portfolio. Prior to joining
Spieker, Mr. Hunt was a commercial real estate broker with CB Commercial
Real Estate Services. Mr. Hunt holds a Bachelor of Arts degree from the
University of the Pacific.
CHANGES TO THE BOARD OF TRUSTEES
On November 5, 1997, the Company's Board of Trustees appointed Robert J.
McLaughlin as an independent Trustee and on June 22, 1998, he was named
Chairman. Mr. McLaughlin is currently the president and owner of a
management-consulting firm, The Sutter Group, in Larkspur, California. He is
also chairman of the board of Coating Technologies International, and serves
on the board of directors of Grubb & Ellis Company. Prior to forming The
Sutter Group, Mr. McLaughlin served as president and
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CEO of Fibreboard Corporation, a NYSE company engaged in the manufacture of
lumber and paper products, and in land development through its subsidiary,
the Trimont Land Company.
On July 15, 1998, the Company announced that the Board of Trustees
appointed L. Michael Foley as a trustee. Mr. Foley is a private investor and an
independent consultant working with various real estate and retail concerns.
Prior to his retirement from Sears Roebuck and Company in 1996, he served in
various executive positions with the Sears organization, including senior
executive vice president of the Coldwell Banker group of companies, executive
vice president of Homart Development Company, the shopping center development
arm of Sears, and chairman and CEO of Sears Savings Bank. During his career,
he also served in executive positions with Bell & Howell Company and Chrysler
Realty Corp. Mr. Foley currently serves on the Board of BRE Properties Inc., a
$1.8 billion multi-family real estate investment trust. He is a past trustee
of the International Council of Shopping Centers (ICSC). Mr. Foley graduated
from the University of Michigan with a B.S. in science engineering, and he
has a M.B.A. in finance and marketing from the Harvard Business School.
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RISK FACTORS
REAL ESTATE INVESTMENT CONSIDERATIONS
GENERAL
Real property investments are subject to varying degrees of risk.
Real estate values are affected by changes in the general economic climate,
local conditions such as an oversupply of, or a reduction in demand for, real
estate in the area, the attractiveness of the Company's properties to
tenants, the quality, philosophy and performance of management, competition
from comparable properties, inability to collect rent from tenants, the
effects of any bankruptcies of major tenants, changes in market rental rates,
the need to periodically repair, renovate and rent space and to pay the costs
thereof (including, without limitation, substantial tenant improvement and
leasing costs of re-leasing space), and increases in operating costs due to
inflation and other factors (including increased real estate taxes), which
increases may not necessarily be passed through fully to tenants. Real
estate values are also affected by such factors as government regulations and
changes in zoning or tax laws, interest rate levels, the availability of
financing and potential liability under environmental and other laws.
DEPENDENCE ON TENANTS
The Company's results of operations will depend on its ability to
continue to lease space in its real estate properties on economically
favorable terms. In addition, as substantially all of the Company's income
is derived from rentals of real property, its income and funds available for
distribution would be adversely affected if a significant number of its
lessees were unable to meet their obligations to the Company. In the event
of default by a lessee, the Company may experience delays in enforcing its
rights as lessor and may incur substantial costs in protecting its
investment. Currently, one of the Company's tenants, Raley's, accounted for
20.6% of rental revenues for the period ended June 30, 1998.
BANKRUPTCY OF TENANTS
There have been a number of bankruptcies in the retail sector over
the past few years, including certain tenants of the Company. The bankruptcy
or insolvency of a major tenant may have a material adverse effect on the
shopping centers affected and the income produced by such properties. The
Company considers the financial condition of prospective tenants as a part of
due diligence prior to entering into a lease. The Company's leases generally
do not contain restrictions designed to ensure the creditworthiness of the
tenant, although the Company monitors store sales of key tenants on an
ongoing basis.
ACQUISITION RISKS
The Company may acquire properties or acquire other real estate
companies when it believes that an acquisition is consistent with its
business strategies. In addition, the Company may, in certain
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circumstances, create and use OP units as consideration for acquisitions from
tax-sensitive sellers and, in connection with such acquisitions, it may agree
to certain restrictions on the Company's ability to sell, or reduce the
mortgage indebtedness on, such acquired assets, including agreeing not to
sell properties for significant periods of time.
MARKET ILLIQUIDITY
Equity real estate investments are relatively illiquid and, therefore,
tend to limit the ability of the Company to vary its portfolio promptly in
response to changes in economic or other conditions. In addition, the Internal
Revenue Code ("Code") limits the Company's ability to sell properties held for
fewer than four years, which may affect the Company's ability to sell properties
without adversely affecting returns to shareholders.
OPERATING RISKS
The Company's properties are subject to operating risks common to
commercial real estate in general, any and all of which may adversely affect
operating income. The properties are subject to increases in operating
expenses such as security, landscaping, insurance, repairs and maintenance.
While the Company's tenants generally are currently obligated to pay most of
these costs, there can be no assurance that the tenants will agree to pay
such costs upon renewal or that new tenants will agree to pay such costs. If
operating expenses increase, the local rental market may limit the extent to
which rents may be increased to meet increased expense without decreasing
occupancy rates. While the Company implements cost saving incentive measures
at each of its properties, if any of the above occurs, the Company's ability
to make distributions to shareholders could be adversely affected.
COMPETITION
There are numerous properties that compete with the Company in
attracting tenants and numerous companies that compete in selecting
properties for acquisition.
UNINSURED LOSS
The Company carries comprehensive liability and casualty insurance
with respect to all of its properties, with policy specifications, insured
limits and deductibles customarily carried for similar properties. While the
Company believes its properties are adequately insured, the Company does not
carry earthquake, flood or pollution coverage. However, most major anchor
tenants are required to rebuild or repair their leased premises if damaged or
destroyed, regardless of the cause. Most of the Company's properties are
located in areas of California and Nevada where earthquakes have been known
to occur. In the event of a major earthquake, Company properties could
suffer substantial damage or destruction. Since it commenced real estate
operations in 1964, the Company has not incurred any material expense nor, to
its knowledge, have any of its properties incurred any material damage from
earthquakes or floods. Should an uninsured loss or a loss in excess of
insured limits occur, the Company could lose its capital invested in a
property, as well as the anticipated future revenue from such property and
would continue
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to be obligated on any obligations related to the property. Any such loss
could adversely affect the business of the Company and its financial
condition and results of operations.
POSSIBLE ENVIRONMENTAL LIABILITIES
Under various Federal, state and local environmental laws, a current
or previous owner or operator of real estate may be required (typically
regardless of knowledge or responsibility) to investigate and clean up
hazardous or toxic substances or petroleum product releases at such property
and may be held liable to a governmental entity or to third parties for
property damage and for investigation and clean-up costs incurred by such
parties in connection with the contamination, which may be substantial. The
presence of such substances (or the failure to properly remediate the
contamination) may adversely affect the owner's ability to borrow against,
sell or rent such property.
COST OF COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT AND SIMILAR LAWS
Under the Americans with Disabilities Act of 1990 (the "ADA"), all
places of public accommodation are required to meet certain Federal
requirements related to access and use by disabled persons. Although
management of the Company believes that the Company's properties are
substantially in compliance with the present requirements of the ADA, the
Company may incur additional costs of complying with the ADA. A number of
additional federal, state and local laws exist which also may require
modifications to the Company's properties, or restrict certain further
renovations thereof, with respect to access thereto by disabled persons.
Additional legislation may impose further burdens or restrictions on owners
with respect to access by disabled persons.
POSSIBLE ADVERSE CONSEQUENCES OF LIMITS ON OWNERSHIP OF SHARES OF BENEFICIAL
INTEREST
In order to maintain its qualification as a REIT, not more than 50%
in value of the outstanding shares of the Company may be owned, directly or
indirectly, by five or fewer persons. In order to protect the Company
against the risk of losing its status as a REIT due to a concentration of
ownership among its shareholders, the Company may refuse to transfer its
common shares.
ADVERSE CONSEQUENCES OF FAILURE TO QUALIFY AS A REIT; OTHER TAX LIABILITIES
The Company intends at all times to operate so as to qualify as a REIT
under the Code. Although management of the Company believes that the Company
is organized and operates in such a manner, no assurance can be given that
the Company will remain qualified as a REIT. Qualification as a REIT
involves the application of highly technical and complex Code provisions for
which there are only limited judicial and administrative interpretations.
The determination of various factual matters and circumstances not entirely
within the Company's control may affect the Company's ability to qualify as a
REIT. If the Company fails to qualify as a REIT, it will be subject to
Federal income tax (including any applicable minimum tax) on its taxable
income at a regular corporate rates. In addition, unless entitled to relief
under certain statutory provisions, the Company will be disqualified from
treatment as a REIT for the four
12
<PAGE>
taxable years following the year during which qualification is lost. The
additional tax would significantly reduce the cash flow available for
distribution to shareholders.
POSSIBLE ADVERSE IMPACT OF MARKET CONDITIONS ON MARKET PRICE
The market value of the Company's securities could be substantially
affected by general market conditions, including changes in interest rates. An
increase in market interest rates may lead purchasers of the Common Shares to
demand a higher annual yield, which could adversely affect the market price of
the outstanding Common Shares. Moreover, numerous other factors, such as
government regulatory action and changes in tax laws, could have a significant
impact on the future market price of the Common Shares or other securities of
the Company.
USE OF PROCEEDS
All of the Common Shares to be offered or sold pursuant to this Prospectus
are being offered and sold by the Selling Shareholders, and the Company will not
receive any proceeds from the sale of Common Shares as contemplated herein.
SELLING SHAREHOLDERS
The Common Shares covered by this Prospectus are being registered for
reoffers and resales by Selling Shareholders of the Company who may acquire
such Shares pursuant to the exercise of options, Share Appreciation Rights
("SARs") or Share Awards that have been granted or may be granted under the
Company's 1998 Equity Incentive Plan ( the "Plan"). The Selling
Shareholders named below may resell all, a portion, or none of the Common
Shares that they may acquire under the Plan.
Key employees deemed to be "affiliates" of the Company who acquire
registered Common Shares under the Plan may be added to the Selling
Shareholders listed below from time to time, either by means of a
post-effective amendment hereto or by use of a prospectus filed pursuant to
Rule 424 under the Securities Act. An "affiliate" is defined in Rule 405
under the Securities Act as a "person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with," the Company.
The following table shows the names of the Selling Shareholders, their
positions with the Company, the number of Common Shares known by the Company
to be beneficially owned by them as of June 30, 1998, and the number of
Common Shares which may be offered by said persons.
13
<PAGE>
<TABLE>
<CAPTION>
NUMBER OF
NUMBER OF COMMON SHARES
SELLING SHAREHOLDER POSITION WITH THE COMMON SHARES WHICH MAY BE
COMPANY BENEFICIALLY HELD 1/ OFFERED 2/
<S> <C> <C> <C>
Bradley N. Blake President, Chief
Executive Officer and
Trustee 308,600 310,000
Dennis D. Ryan Executive Vice
President, Chief
Financial Officer and
Trustee 119,249 90,000
Josh Smith Senior Vice President 79,590 85,000
L. Gerald Hunt Senior Vice President 73,050 85,000
Barbara J. Donham Vice President,
Administration & 31,175 25,000
Secretary
Theresa M. Gahagan Vice President,
Controller 14,053 20,000
Robert S. McLaughlin Chairman of the Board 26,000 30,000
Charles R. MacPhee, Jr. Trustee 254,643 20,000
Reginald B. Oliver Trustee 117,750 3/ 20,000
James L. Stell Trustee 27,000 4/ 20,000
L. Michael Foley Trustee 0 20,000
Persons unknown to
the Company (5) _____________ 0 40,000
</TABLE>
- -------------------------
<TABLE>
<C> <S>
1/ Includes shares and options awarded to date under the Company's 1998 Equity Incentive Plan.
2/ Includes shares and options awarded to date and projected additional shares and options to
be awarded in the future.
3/ Includes 5,000 shares held by Mr. Oliver's adult children and 31,550 shares held by Mr. Oliver
as Trustee and custodian for a minor child under his custodial care. Mr. Oliver disclaims any
ownership of such shares.
4/ Includes 4,000 shares held by Mr. Stell as Trustee for a family trust. Mr. Stell disclaims any
ownership of such shares.
5/ As the names of other selling shareholders and the amounts of securities to be offered become
known, the Company will supplement this Prospectus with such information.
</TABLE>
14
<PAGE>
PLAN OF DISTRIBUTION
The sale of all or a portion of the Common Shares offered hereby by the
Selling Shareholders may be effected from time to time on the Amex at
prevailing prices at the time of such sales, at prices related to such
prevailing prices or at negotiated prices. The Selling Shareholders may
effect such transactions by selling to or through one or more broker-dealers,
and such broker-dealers may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Shareholders. The
Selling Shareholders and any broker-dealers that participate in the
distribution may be deemed to be "underwriters" within the meaning of the
Securities Act, and any commissions received by such broker-dealers and any
profits realized on the resale of Common Shares by them may be deemed to be
underwriting discounts and commissions under the Securities Act. The Selling
Shareholders may agree to indemnify such broker-dealers against certain
liabilities, including liabilities under the Securities Act.
There is no assurance that any of the Selling Shareholders will sell any
or all of the Common Shares offered hereby.
The Company has agreed to pay certain costs and expenses incurred in
connection with the registration of the Common Shares offered hereby, except
that the Selling Shareholders shall be responsible for all selling
commissions, transfer taxes and related charges in connection with the offer
and sale of such Common Shares.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for
the Company by the law firm of Steinhart & Falconer LLP, San Francisco,
California.
EXPERTS
The financial statements of the Company as of December 31, 1997 and 1996
and for each of the years in the three-year period ended December 31, 1997,
have been incorporated by reference herein and in the Registration Statement
in reliance upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, incorporated by reference herein, and the authority of
said firm as experts in accounting and auditing.
15
<PAGE>
No person is authorized to give any 850,000
information or make any representations
other than those contained in this
Prospectus and, if given or made, such
information or representations must not
be relied upon as having been authorized
by the Company, any Selling Shareholder WESTERN INVESTMENT REAL ESTATE TRUST
or any other person. This Prospectus
does not constitute an offer to sell or
a solicitation of any offer to purchase
any securities other than those to which COMMON SHARES OF
it relates or an offer to sell or a BENEFICIAL INTEREST
solicitation of an offer to purchase any
securities in any jurisdiction where
such an offer or solicitation would be
unlawful. Neither the delivery of this
Prospectus nor any distribution of
securities hereunder shall under any
circumstances be deemed to imply that
there has been no change in the assets,
properties or affairs of the Company
since the date hereof or that the
information set forth herein is correct
as of any time subsequent to the date
hereof.
_______________
TABLE OF CONTENTS
Page PROSPECTUS
Available Information . . . . . . . . . 2
Incorporation of Certain Documents by
Reference . . . . . . . . . . . . . . . 3
Forward Looking Statements . . . . . . 3
The Company . . . . . . . . . . . . . . 4
Recent Developments . . . . . . . . . . 6
Risk Factors . . . . . . . . . . . . 10
Use of Proceeds . . . . . . . . . . . 13
Selling Shareholders . . . . . . . . 13
Plan of Distribution . . . . . . . . 15
Legal Matters . . . . . . . . . . . . 15
Experts . . . . . . . . . . . . . . . 15 August 5, 1998
16
<PAGE>
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION.
The Company will send or give the documents containing the information
specified in this Item 1 to employees, officers, directors or others as
specified by Rule 428(b)(1). In accordance with the rules and regulations of
the Securities and Exchange Commission (the "Commission") and the
instructions to Form S-8, the Company is not filing such documents with the
Commission either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The Company will send or give the documents containing the information
specified in this Item 2 to employees, officers, directors or others as
specified by Rule 428(b)(1). In accordance with the rules and regulations of
the Commission and the instructions to Form S-8, the Company is not filing
such documents with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information heretofore filed with the
Commission by the Company are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K (the "Annual
Report") for the fiscal year ended December 31, 1997 filed pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Company's definitive Proxy Statement dated March 25, 1998
filed in connection with the Registrant's 1998 Annual Meeting of
Shareholders;
(c) The Company's Quarterly Report on Form 10-Q for the three
months ended June 30, 1998 filed pursuant to the Exchange Act; and
(d) The description of the Company's Common Shares of Beneficial
Interest contained in the Company's Registration Statement on Form S-3
filed on August 1, 1997, (File No. 333-32721).
17
<PAGE>
All documents subsequently filed with the Commission by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all securities then
remaining unsold under this Registration Statement, shall be deemed to be
incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 2.7 of the Declaration of Trust, as amended, provides that any
trustee or officer of the Company, whether or not still in office, made a
party to any action, suit or proceeding or against whom a claim or liability
is asserted because he is or was a trustee or officer of the Company shall be
indemnified and held harmless by the Company against judgments, fines,
amounts paid on account thereof (whether in settlement or otherwise) and
reasonable expenses, including attorneys fees actually and reasonably
incurred by him in connection with the defense of such action, suit or
proceeding or in connection with the appeal therein, whether or not the same
proceeds to judgment or is settled or otherwise brought to a conclusion.
Such rights of indemnification and reimbursement shall be satisfied only out
of the assets of the Company. Under Section 2.5 of the Amended Declaration of
Trust, no shareholder shall be personally or individually liable for any
claim against the trustees or officers. No person shall be indemnified or
reimbursed for any claim, obligation or liability which shall have been
adjudicated, or in case of settlement, which in the opinion of counsel for
the Company would, if adjudicated, have likely been adjudicated to have
arisen out of or been based upon such person's willful misfeasance, bad
faith, gross negligence or reckless disregard of duty or for his failure to
act in good faith in the reasonable belief that his action was in the best
interests of the Company. The Company has entered into individual
indemnification agreements with each trustee and officer of the Company.
The indemnification provisions in the Amended Declaration of Trust may
be sufficiently broad to permit indemnification of the Company's trustees and
officers for liabilities arising under the Securities Act of 1933.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
18
<PAGE>
ITEM 8. INDEX TO EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
<S> <C>
4.1 Declaration of Trust, as amended (filed as Exhibit 3 to
Registrants' Form 10Q for the quarter ended June 30, 1998 and
incorporated herein by reference.)
4.2 Form of Indenture relating to the Senior Notes (filed as Exhibit
4.1 to Registration Statement on Form S-3 No. 33-71270 and
incorporated herein by reference).
4.3 Form of Senior Notes (filed as Exhibit 4.2 to Registration
Statement on Form S-3 No. 33-71270 and incorporated herein by
reference).
4.4 Form of Supplemental Indenture relating to the 7.1% Senior Notes
(filed as Exhibit 4.5 on Form 8-K, dated September 24, 1997, and
incorporated herein by reference).
4.5 Form of Supplemental Indenture relating to the 7.2% Senior Notes
(filed as Exhibit 4.6 on Form 8-K, dated September 24, 1997, and
incorporated herein by reference).
4.6 Form of Supplemental Indenture relating to the 7.3% Senior Notes
(filed as Exhibit 4.7 on Form 8-K, dated September 24, 1997, and
incorporated herein by reference).
5.1 Opinion of Steinhart & Falconer LLP as to legality of securities
being registered.
10.1 1998 Equity Incentive Plan (filed as Exhibit 10.4 to Registrant's
Form 10Q for the quarter ended June 30, 1998 and incorporated
herein by reference.)
23.1 Consent of KPMG Peat Marwick LLP, Independent Auditors.
23.2 Consent of Steinhart & Falconer LLP (WHICH IS CONTAINED IN
EXHIBIT 5.1)
24.1 Powers of Attorney (WHICH ARE INCLUDED AS PART OF THE SIGNATURE
PAGE OF THIS REGISTRATION STATEMENT).
</TABLE>
19
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Company pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Company's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
20
<PAGE>
filing of an employee benefit plan's annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to trustees, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a trustee, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such trustee, officer or controlling person in
connection with the securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
21
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in San Francisco, California, on this 4th day of
August, 1998.
WESTERN INVESTMENT REAL ESTATE TRUST
By __________________________________
Bradley N. Blake
President, Chief Executive Officer
and Trustee
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints BRADLEY N. BLAKE, DENNIS D. RYAN,
DAVID J. ROMANSKI AND ROBB A. SCOTT, or any of them, his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, and
in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
including any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act of
1933, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be done
in and about the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
22
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on
the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
__________________________ Chairman of the Board August 4, 1998
Robert J. McLaughlin
__________________________ President, Chief Executive August 4, 1998
Bradley N. Blake Officer and Trustee
(Chief Executive Officer)
__________________________ Executive Vice President, August 4, 1998
Dennis D. Ryan Chief Financial Officer
and Trustee (Chief Financial
and Accounting Officer)
__________________________ Trustee August 4, 1998
Chester R. MacPhee, Jr.
__________________________
Reginald B. Oliver Trustee August 4, 1998
__________________________
James L. Stell Trustee August 4, 1998
__________________________
L. Michael Foley Trustee August 4, 1998
</TABLE>
23
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
<S> <C>
4.1 Declaration of Trust, as amended (filed as Exhibit 3 to
Registrant's Form 10Q for the quarter ended June 30, 1998 and
incorporated herein by reference.)
4.2 Form of Indenture relating to the Senior Notes (filed as
Exhibit 4.1 to Registration Statement on Form S-3 No. 33-71270
and incorporated herein by reference).
4.3 Form of Senior Notes (filed as Exhibit 4.2 to Registration
Statement on Form S-3 No. 33-71270 and incorporated herein by
reference).
4.4 Form of Supplemental Indenture relating to the 7.1% Senior Notes
(filed as Exhibit 4.5 on Form 8-K, dated September 24, 1997, and
incorporated herein by reference).
4.5 Form of Supplemental Indenture relating to the 7.2% Senior Notes
(filed as Exhibit 4.6 on Form 8-K, dated September 24, 1997, and
incorporated herein by reference).
4.6 Form of Supplemental Indenture relating to the 7.3% Senior Notes
(filed as Exhibit 4.7 on Form 8-K, dated September 24, 1997, and
incorporated herein by reference).
5.1 Opinion of Steinhart & Falconer LLP as to legality of securities
being registered.
10.1 1998 Equity Incentive Plan (filed as Exhibit 10.4 to
Registrant's Form 10Q for the quarter ended June 30, 1998 and
incorporated herein by reference.)
23.1 Consent of KPMG Peat Marwick LLP, Independent Auditors.
23.2 Consent of Steinhart & Falconer LLP (WHICH IS CONTAINED IN
EXHIBIT 5.1)
24.1 Powers of Attorney (WHICH ARE INCLUDED AS PART OF THE SIGNATURE
PAGE OF THIS REGISTRATION STATEMENT).
</TABLE>
24
<PAGE>
Exhibit 5.1
August 5, 1998
Western Investment Real Estate Trust
3450 California Street
San Francisco, California 94118
Re: Western Investment Real Estate Trust
Registration Statement on Form S-8
(FILE NO. XXX-__)
Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Western Investment Real Estate Trust
(the "Registrant" or "you"), with the Securities and Exchange Commission on
or about August 5, 1998, in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 850,000 shares of your
Common Shares, no par value (the "Shares"), reserved for issuance pursuant to
the Registrant's 1998 Equity Incentive Plan (the "Plan"). As your legal
counsel, we have reviewed the actions proposed to be taken by you in
connection with the proposed sale and issuance of the Shares by the
Registrant under the Plan.
It is our opinion that, upon completion of the actions being taken, or
contemplated by us as your counsel to be taken by you prior to the issuance
of the Shares pursuant to the Registration Statement and the Plan, and upon
completion of the actions being taken in order to permit such transactions to
be carried out in accordance with the securities laws of the various states
where required, the Shares will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as Exhibit 5.1 to the Registration
Statement, and further consent to the use of our name wherever appearing in
the Registration Statement and any subsequent amendment thereto.
Very truly yours,
STEINHART & FALCONER LLP
37
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Trustees
Western Investment Real Estate Trust
We consent to the incorporation by reference in the registration statement
(No. 333-xxxxx) on Form S-8 of Western Investment Real Estate Trust of our
report dated January 29, 1998, relating to the balance sheets of Western
Investment Real Estate Trust as of December 31, 1997 and 1996, and the related
statements of income, shareholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1997, and the related
financial statement schedule, which report appears in the December 31, 1997,
annual report on Form 10-K of Western Investment Real Estate Trust.
San Francisco, California KPMG PEAT MARWICK LLP
August 4, 1998
38
