Exhibit 1.1
$135,000,000
WASHINGTON REAL ESTATE INVESTMENT
TRUST
3 7 / 8 % Convertible Senior Notes due
September 15, 2026
UNDERWRITING
AGREEMENT
January 17, 2007
C REDIT S UISSE S ECURITIES (USA) LLC
As Representative of the Several
Underwriters,
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory . Washington
Real Estate Investment Trust, a real estate investment trust
organized under the laws of the State of Maryland (“
Company ”), agrees with the several Underwriters named
in Schedule A hereto (“Underwriters”) to issue and sell
to the several Underwriters $135,000,000 principal amount (“
Firm Securities ”) of its 3 7 / 8
% Convertible Senior
Notes due September 15, 2026 (“ Securities
”) and also proposes to issue and sell to the Underwriters,
at the option of the Underwriters, an aggregate of not more than
$15,000,000 additional principal amount (“ Optional
Securities ”) of its Securities as set forth below, all
to be issued under an indenture, dated as of August 1, 1996,
and as supplemented through the Closing Date (the “
Indenture ”), between the Company and The Bank of New
York Trust Company, N.A. (as successor in interest to The First
National Bank of Chicago), as trustee (the “ Indenture
Trustee ”). The Firm Securities and the Optional
Securities are herein collectively called the “ Offered
Securities ”.
2. Representations and Warranties
of the Company . The Company represents and warrants to, and
agrees with, the several Underwriters that:
(a) Filing and
Effectiveness of Registration Statement . Certain terms are
defined at the end of this subsection. The Company has filed with
the Commission a registration statement on Form S-3
(No. 333-136921) covering the registration of the Offered
Securities and the Underlying Shares under the Act, including a
related preliminary prospectus or prospectuses. At any particular
time, this initial registration statement, in the form then on file
with the Commission, including all material then incorporated by
reference therein, all information contained in the registration
statement (if any) pursuant to Rule 462(b) and then deemed to be a
part of the initial registration statement, and all 430A
Information and all 430C Information, that in any case has not then
been superseded or modified, shall be referred to as the “
Initial Registration Statement ”. The Company may also
have filed, or may file with the Commission, a Rule 462(b)
registration statement covering the registration of Offered
Securities and the Underlying Shares. At any
particular time, this Rule 462(b)
registration statement, in the form then on file with the
Commission, including the contents of the Initial Registration
Statement incorporated by reference therein and including all 430A
Information and all 430C Information, that in any case has not then
been superseded or modified, shall be referred to as the “
Additional Registration Statement ”.
As of the time of execution and
delivery of this Agreement, the Initial Registration Statement has
been declared effective under the Act and is not proposed to be
amended. Any Additional Registration Statement has or will become
effective upon filing with the Commission pursuant to
Rule 462(b) and is not proposed to be amended. The Offered
Securities and the Underlying Shares all have been or will be duly
registered under the Act pursuant to the Initial Registration
Statement and, if applicable, the Additional Registration
Statement.
For purposes of this
Agreement:
“ 1934 Act ”
means the Securities Exchange Act of 1934, as amended.
“ 430A Information
”, with respect to any registration statement, means
information included in a prospectus and retroactively deemed to be
a part of such registration statement pursuant to
Rule 430A(b).
“ 430C Information
”, with respect to any registration statement, means
information included in a prospectus then deemed to be a part of
such registration statement pursuant to Rule 430C.
“ Act ” means the
Securities Act of 1933, as amended.
“ Applicable Time
” means 9:50a.m. (Eastern time) on the date of this
Agreement.
“ Closing Date”
has the meaning defined in Section 3 hereof.
“ Commission ”
means the Securities and Exchange Commission.
“ Effective Date
” with respect to the Initial Registration Statement or the
Additional Registration Statement (if any) means the date of the
Effective Time thereof.
“ Effective Time
” with respect to the Initial Registration Statement or, if
filed prior to the execution and delivery of this Agreement, the
Additional Registration Statement means the date and time as of
which such Registration Statement was declared effective by the
Commission or has become effective upon filing pursuant to
Rule 462(c). If an Additional Registration Statement has not
been filed prior to the execution and delivery of this Agreement
but the Company has advised the Representative that it proposes to
file one, “ Effective Time ” with respect to
such Additional Registration Statement means the date and time as
of which such Registration Statement is filed and becomes effective
pursuant to Rule 462(b).
“ Exchange Act ”
means the Securities Exchange Act of 1934.
“ Final Prospectus
” means the Statutory Prospectus that discloses the public
offering price, other 430A Information and other final terms of the
Offered Securities and otherwise satisfies Section 10(a) of
the Act.
“ General Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being so specified in Schedule B to
this Agreement.
“ Issuer Free Writing
Prospectus ” means any “issuer free writing
prospectus,” as defined in Rule 433, relating to the
Offered Securities in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to
Rule 433(g).
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“ Limited Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing
Prospectus.
A “ Registration
Statement ” at any particular time means the Initial
Registration Statement and any Additional Registration Statement as
of such time. A “ Registration Statement ”
without reference to a time means such Registration Statement as of
its Effective Time. The Initial Registration Statement and the
Additional Registration Statement are referred to collectively as
the “ Registration Statements ” and individually
as a “ Registration Statement ”. For purposes of
the foregoing definitions, 430A Information with respect to a
Registration Statement shall be considered to be included in such
Registration Statement as of the time specified in
Rule 430A.
“ Rules and Regulations
” means the rules and regulations of the
Commission.
“ Statutory Prospectus
” as of any time means the prospectus included in a
Registration Statement immediately prior to that time, including
any document incorporated by reference therein and any
430A Information or 430C Information with respect to such
Registration Statement. For purposes of the foregoing definition,
430A Information shall be considered to be included in the
Statutory Prospectus as of the actual time that form of prospectus
is filed with the Commission pursuant to Rule 424(b) or Rule
462(c) and not retroactively.
“ Trust Indenture Act
” means the Trust Indenture Act of 1939.
“ Underlying Shares
” shall mean the Company’s common shares of beneficial
interest into which the Offered Securities are
convertible.
Unless otherwise specified, a
reference to a “rule” is to the indicated rule under
the Act.
(b) Compliance with
Securities Act Requirements . (i) On its respective
Effective Date, on the date of this Agreement and on each Closing
Date, each of the Initial Registration Statement and the Additional
Registration Statement (if any) conformed and will conform in all
material respects to the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations and did not and will
not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and (ii) on the
date of this Agreement, and at the time of filing of the Final
Prospectus pursuant to Rule 424(b) or (if no such filing is
required) at the Effective Date of the Additional Registration
Statement in which the Final Prospectus is included, the Final
Prospectus will conform in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations and will not include any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
The preceding sentence does not apply to statements in or omissions
from any such document based upon written information furnished to
the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that
the only such information is that described as such in
Section 8(b) hereof.
(c) Incorporated Documents .
The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the
time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of
the 1934 Act and the Rules and Regulations.
(d) Ineligible Issuer Status
. (i) At the time of initial filing of the Initial
Registration Statement and (ii) at the date of this Agreement,
the Company was not and is not an “ineligible issuer,”
as defined in Rule 405, including (x) the Company or any
other subsidiary in the preceding three years not having been
convicted of a felony or misdemeanor or having been made the
subject of a judicial or administrative decree or order as
described in Rule 405 and (y) the Company in the
preceding three years not having been the subject of a bankruptcy
petition or
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insolvency or similar proceeding,
not having had a registration statement be the subject of a
proceeding under Section 8 of the Act and not being the
subject of a proceeding under Section 8A of the Act in
connection with the offering of the Offered Securities, all as
described in Rule 405. At the time the Company or any person
acting on its behalf (within the meaning, for this sentence only,
of Rule 163(c)) made any offer in reliance on the exemption of
Rule 163, the Company was a “well-known seasoned
issuer” as defined in Rule 405, including not having
been an “ineligible issuer” as defined in
Rule 405.
(e) General Disclosure
Package . As of the Applicable Time, neither (i) the
General Use Issuer Free Writing Prospectus(es) issued at or prior
to the Applicable Time, the preliminary prospectus, dated
January 16, 2007 (which is the most recent Statutory
Prospectus distributed to investors generally) and the other
information, if any, stated in Schedule B to this Agreement to be
included in the General Disclosure Package, all considered together
(collectively, the “ General Disclosure Package
”), nor (ii) any individual Limited Use Issuer Free
Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from any Statutory
Prospectus or any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 8(b)
hereof.
(f) Issuer Free Writing
Prospectuses . Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of
the public offer and sale of the Offered Securities or until any
earlier date that the Company notified or notifies Credit Suisse
Securities (USA) LLC (“ Credit Suisse ”) as
described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information then contained in the Registration Statement.
If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or
would conflict with the information then contained in the
Registration Statement or included or would include an untrue
statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances prevailing at that subsequent time,
not misleading, (i) the Company has promptly notified or will
promptly notify Credit Suisse and (ii) the Company has
promptly amended or will promptly amend or supplement such Issuer
Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
(g) Good Standing of the
Company . The Company has been duly organized and is validly
existing as a real estate investment trust of unlimited duration
with transferable shares of beneficial interest in good standing
under the laws of the State of Maryland, with full power and
authority to own, lease and operate its properties and to conduct
its business as described in the General Disclosure Package and to
enter into this Agreement and the Indenture and to consummate the
transactions contemplated by the Prospectus. The Company is duly
qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good
standing would not result in a material adverse change in the
condition, financial or otherwise, or the results of operations,
business, properties or prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (a “ Material Adverse
Effect ”).
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(h) Subsidiaries . Each
“significant subsidiary” of the Company (as such term
is defined in Rule 1-02 of Regulation S-X promulgated under the
1933 Act) (each, a “ Subsidiary ” and,
collectively, the “ Subsidiaries ”) (which term
includes corporations, limited and general partnerships, limited
liability companies, joint ventures and other entities, and
includes direct and indirect subsidiaries), if any, has been duly
organized and is validly existing as a corporation, limited
liability company or partnership, as the case may be, in good
standing under the laws of the jurisdiction of its incorporation or
organization, has power and authority to own, lease and operate its
properties and to conduct its business as described in the General
Disclosure Package and is duly qualified to transact business and
is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
Material Adverse Effect. Except as otherwise stated in the General
Disclosure Package, all of the issued and outstanding capital stock
or other ownership interests of each Subsidiary have been duly
authorized and validly issued, are fully paid and non-assessable
and are owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of
preemptive or other similar rights of any security holder of such
Subsidiary.
(i) Execution and Delivery of
Indenture . The Indenture has been duly authorized and has been
duly qualified under the Trust Indenture Act; the Offered
Securities have been duly authorized and, when the Offered
Securities are delivered and paid for pursuant to this Agreement on
each Closing Date, the Indenture will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered, will be consistent with the
information in the General Disclosure Package and will conform to
the description thereof contained in the Final Prospectus and the
Indenture and such Offered Securities will constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles and entitled to the
benefits provided by the Indenture.
(j) Underlying Shares . When
the Offered Securities are delivered and paid for pursuant to this
Agreement on each Closing Date, such Offered Securities will be
convertible into the Underlying Shares of the Company in accordance
with the terms of the Indenture; the Underlying Shares initially
issuable upon conversion of such Offered Securities have been duly
authorized and reserved for issuance upon such conversion, are
consistent with the information in the General Disclosure Package
and conform to the description thereof contained in the Final
Prospectus; the authorized equity capitalization of the Company is
as set forth in the General Disclosure Package; all outstanding
shares of beneficial interest of the Company are, and when issued
upon conversion the Underlying Shares will be validly issued, fully
paid and nonassessable; the shareholders of the Company have no
preemptive rights with respect to the Offered Securities or the
Underlying Shares, and none of the outstanding shares of beneficial
interest of the Company have been issued in violation of any
preemptive or similar rights of any security holder.
(k) Finder’s Fee .
Except as disclosed in the General Disclosure Package, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Underwriter for a brokerage commission, finder’s fee or
other like payment in connection with this offering.
(l) Registration Rights .
Except as disclosed in the General Disclosure Package, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to
file a registration statement under the Act with respect
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to any securities of the Company
owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Act (collectively, “ registration rights
”), and any person to whom the Company has granted
registration rights has agreed not to exercise such rights until
after the expiration of the Lock-Up Period referred to in
Section 5 hereof.
(m) Listing . The Underlying
Shares have been approved for listing on The New York Stock
Exchange, subject to notice of issuance.
(n) Absence of Further
Requirements . No consent, approval, authorization, or order
of, or filing or registration with, any person (including any
governmental agency or body or any court) is required for the
consummation by the Company of the transactions contemplated by
this Agreement or the Indenture in connection with the offering,
issuance and sale of the Offered Securities and Underlying Shares
by the Company, except such as have been obtained, or made and such
as may be required under state securities laws.
(o) Title to Property . The
Company and its subsidiaries have good and marketable title to, or
valid and enforceable leasehold estates in, all items of real and
personal property referred to in the General Disclosure Package as
owned or leased by them, in each case free and clear of all liens,
encumbrances, claims, security interests and defects, other than
those referred to in the General Disclosure Package or that are not
material in amount. The Company has no reason to believe that the
lessee under any lease (excluding leases for which rent payments
due for the remainder of such lease are less than $1,000,000)
calling for annual lease payments in excess of $1,000,000 is not
financially capable of performing its obligations
thereunder.
(p) Absence of Defaults and
Conflicts Resulting from Transaction . The execution, delivery
and performance of this Agreement and the Indenture, and the
issuance and sale of the Offered Securities and Underlying Shares
and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and provisions
of, or constitute a default or a Debt Repayment Triggering Event
(as defined below) under, or result in the imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, the declaration of trust,
partnership agreement, charter or by-laws or other organizational
documents of the Company or any of its subsidiaries, any statute,
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or
any of its subsidiaries or any of their properties, or any
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties of the
Company or any of its subsidiaries is subject; a “ Debt
Repayment Triggering Event ” means any event or condition
that gives, or with the giving of notice or lapse of time would
give, the holder of any note, debenture, or other evidence of
indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any of its
subsidiaries.
(q) Absence of Existing Defaults
and Conflicts . Neither the Company nor any of its subsidiaries
is in violation of its respective declaration of trust, partnership
agreement, charter or by-laws or other organizational document or
in default (or with the giving of notice or lapse of time would be
in default) under any existing obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which any of them is a
party or by which any of them is bound or to which any of the
properties of any of them is subject, except such defaults that
would not, individually or in the aggregate, result in a Material
Adverse Effect.
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(r) Authorization of
Agreement . This Agreement has been duly authorized, executed
and delivered by the Company.
(s) Possession of Licenses and
Permits . The Company and its subsidiaries possess, and are in
compliance with the terms of, all certificates, authorizations,
franchises, licenses and permits (“ Licenses ”)
necessary or material to the conduct of the business now conducted
or proposed in the General Disclosure Package to be conducted by
them and have not received any notice of proceedings relating to
the revocation or modification of any Licenses that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse
Effect.
(t) Absence of Labor Dispute
. No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or its
subsidiaries’ principal suppliers, contractors or customers,
that, in any such case, could have a Material Adverse
Effect.
(u) Possession of Intellectual
Property . The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, “ intellectual property rights ”)
necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse
Effect.
(v) Environmental Laws
. Except as disclosed in the General Disclosure Package, neither
the Company nor any of its subsidiaries is in violation of any
statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, “ environmental laws ”), owns or
operates any real property contaminated with any substance that is
subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or
in the aggregate have a Material Adverse Effect; and the Company is
not aware of any pending investigation which might lead to such a
claim.
(w) Accurate Disclosure . The
statements in the General Disclosure Package and the Final
Prospectus under the headings “Material United States Federal
Income Tax Considerations,” “Risk Factors,”
“Description of Shares,” “Description of Debt
Securities” and “Description of Notes” and under
the heading “Risk Factors” in the Company’s 2005
Annual Report on Form 10-K and the statements in the Registration
Statement under Item 15, insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed
therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings and present the information
required to be shown.
(x) REIT Status . With
respect to all tax periods regarding which the Internal Revenue
Service is or will be entitled to assert any claim, the Company has
met the requirements for qualification as a real estate investment
trust under Sections 856 through 860 of the Internal Revenue Code,
as amended, and the Company’s present and contemplated
operations, assets and income continue to meet such
requirements.
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(y) Insurance . The Company
and its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which
they are engaged; the Company has no reason to believe that it or
any of its subsidiaries will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material
Adverse Effect; and the Company and each of its subsidiaries has
obtained title insurance on all of the properties owned by each of
them in an amount at least equal to the original purchase price to
acquire land and improvements and such title insurance is in full
force and effect.
(z) Taxes . The Company has
filed all federal, state and foreign income tax returns that have
been required to be filed and has paid all taxes indicated by said
returns and all assessments received by it to the extent that such
taxes have become due.
(aa) Statistical and
Market-Related Data . Any third-party statistical and
market-related data included or incorporated by reference in a
Registration Statement or a Statutory Prospectus are based on or
derived from sources that the Company believes to be reliable and
accurate.
(bb) Compliance with the
Sarbanes-Oxley Act . Except as set forth in the General
Disclosure Package, (i) the Company, its subsidiaries and the
Company’s Board of Trustees (the “ Board
”) are in compliance in all material respects with
Sarbanes-Oxley (as defined below) and all applicable Exchange Rules
(as defined below); (ii) the Company has adopted and has or,
upon consummation of the offering of the Offered Securities, will
have disclosed corporate governance guidelines; (iii) the
Company maintains a system of internal controls, including, but not
limited to, disclosure controls and procedures, internal control
over financial reporting, an internal audit function and legal and
regulatory compliance controls (collectively, “ Internal
Controls ”), which complies with the Securities Laws (as
defined below) and is or, upon consummation of the offering of the
Offered Securities will be overseen by the Audit Committee (the
“ Audit Committee ”) of the Board in accordance
with Exchange Rules; (iv) the Company has not publicly
disclosed or reported to the Audit Committee or the Board, and
within the next 90 days the Company does not reasonably expect to
publicly disclose or report to the Audit Committee or the Board, a
significant deficiency, material weakness, change in Internal
Controls or fraud involving management or other employees who have
a significant role in Internal Controls (each, an “
Internal Control Event ”), any violation of, or
failure to comply with, the Securities Laws, or any matter which,
if determined adversely, would have a Material Adverse Effect; and
(v) “ Securities Laws ” means,
collectively, the Sarbanes-Oxley Act of 2002 (“
Sarbanes-Oxley ”), the Act, the Exchange Act, the
Rules and Regulations, the auditing principles, rules, standards
and practices applicable to auditors of “issuers” (as
defined in Sarbanes-Oxley) promulgated or approved by the Public
Company Accounting Oversight Board (“ PCAOB Rules
” and “ PCAOB ,” respectively), and, as
applicable, the rules of the New York Stock Exchange (“
Exchange Rules ”).
(cc) Litigation . Except as
disclosed in the General Disclosure Package, there are no pending
actions, suits or proceedings (including any inquiries or
investigations by any court or governmental agency or body,
domestic or foreign) against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse
Effect, or would materially and adversely affect the ability of the
Company to perform its obligations under the Indenture or this
Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or
proceedings (including any inquiries or investigations by any court
or governmental agency or body, domestic or foreign) are threatened
or, to the Company’s knowledge, contemplated.
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(dd) Financial Statements and
Independent Accountants . The financial statements included in
each Registration Statement and the General Disclosure Package
present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results
of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States
(“ GAAP ”) applied on a consistent basis and the
schedules included in each Registration Statement present fairly
the information required to be stated therein; and the assumptions
used in preparing the pro forma financial statements included in
each Registration Statement and the General Disclosure Package
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect
to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding
historical financial statement amounts. The supporting schedules,
if any, included in the Registration Statement and the General
Disclosure Package present fairly in accordance with GAAP the
information required to be stated therein. The selected financial
data included in the General Disclosure Package present fairly the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement and the General Disclosure Package.
The historical summaries of revenue and certain operating expenses
included in the Registration Statement and the General Disclosure
Package present fairly the revenue and those operating expenses
included in such summaries of the properties related thereto for
the periods specified in conformity with GAAP. The accountants who
certified the financial statements and any supporting schedules
thereto included in each Registration Statement and the General
Disclosure Package are independent public accountants within the
meaning of the Securities Laws.
(ee) Accuracy of Exhibits .
There are no contracts or documents that are required to be
described in the Registration Statement, the Prospectus or the
documents incorporated by reference therein or to be filed as
exhibits thereto that have not been so described and filed as
required.
(ff) No Material Adverse Change
in Business . Except as disclosed in the General Disclosure
Package, since the end of the period covered by the latest audited
financial statements included in the General Disclosure Package
(i) there has been no change, nor any development or event
involving a prospective change, in the condition (financial or
otherwise), results of operations, business, properties or
prospects of the Company and its subsidiaries, taken as a whole
that is material and adverse, (ii) except as disclosed in or
contemplated by the General Disclosure Package, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock and (iii) except as
disclosed in or contemplated by the General Disclosure Package,
there has been no material adverse change in the capital stock,
short-term indebtedness, long-term indebtedness, net current assets
or net assets of the Company and its subsidiaries.
(gg) Investment Company Act .
The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds
thereof as described in the General Disclosure Package, will not be
an “investment company” as defined in the Investment
Company Act of 1940 (the “ Investment Company Act
”).
(hh) Ratings . No
“nationally recognized statistical rating organization”
as such term is defined for purposes of Rule 436(g)(2)
(i) has imposed (or has informed the Company that it is
considering imposing) any condition (financial or otherwise) on the
Company’s retaining any rating assigned to the Company or any
securities of the Company or (ii) has indicated to the Company
that it is considering any of the actions described in
Section 7(c)(ii) hereof.
9
3. Purchase, Sale and Delivery of
Offered Securities . On the basis of the representations,
warranties and agreements and subject to the terms and conditions
set forth herein, the Company agrees to sell to the several
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at a purchase price of
97.5% of the principal amount thereof (plus accrued interest
thereon from January 22, 2007), the respective principal
amounts of Firm Securities set forth opposite the names of the
Underwriters in Schedule A hereto.
The Company will deliver the Firm
Securities to or as instructed by the Representative for the
accounts of the several Underwriters in a form reasonably
acceptable to the Representative against payment of the purchase
price by the Underwriters in Federal (same day) funds by wire
transfer to an account at a bank acceptable to the Representative
drawn to the order of Washington Real Estate Investment Trust at
the office of Vinson & Elkins LLP, 1455 Pennsylvania
Avenue, Washington, DC, 20004, at 10:00 A.M., New York time, on
January 22, 2007, or at such other time not later than seven
full business days thereafter as the Representative and the Company
determine, such time being herein referred to as the “
First Closing Date ”. For purposes of Rule 15c6-1
under the Securities Exchange Act of 1934, the First Closing Date
(if later than the otherwise applicable settlement date) shall be
the settlement date for payment of funds and delivery of securities
for all the Offered Securities sold pursuant to the offering. The
Firm Securities so to be delivered or evidence of their issuance
will be made available for checking at the above office of
Vinson & Elkins LLP at least 24 hours prior to the
First Closing Date.
In addition, upon written notice
from the Representative given to the Company from time to time not
more than 30 days subsequent to the date of the Final Prospectus,
the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per principal amount of Securities
(including any accrued interest thereon to the related Optional
Closing Date) to be paid for the Firm Securities. The Company
agrees to sell to the Underwriters the principal amount of Optional
Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities.
Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the principal amount of Firm
Securities set forth opposite such Underwriter’s name bears
to the total principal amount of Firm Securities (subject to
adjustment by the Representative to eliminate fractions) and may be
purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered
unless the Firm Securities previously have been, or simultaneously
are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to
time and to the extent not previously exercised may be surrendered
and terminated at any time upon notice by the Representative to the
Company.
Each time for the delivery of and
payment for the Optional Securities, being herein referred to as an
“ Optional Closing Date ”, which may be the
First Closing Date (the First Closing Date and each Optional
Closing Date, if any, being sometimes referred to as a “
Closing Date ”), shall be determined by the
Representative but shall be not later than five full business days
after written notice of election to purchase Optional Securities is
given. The Company will deliver the Optional Securities being
purchased on each Optional Closing Date to or as instructed by the
Representative for the accounts of the several Underwriters in a
form reasonably acceptable to the Representative against payment of
the purchase price therefor in Federal (same day) funds by wire
transfer to an account at a bank acceptable to the Representative
drawn to the order of Washington Real Estate Investment Trust, at
the above office of Vinson & Elkins LLP. The Optional
Securities being purchased on each Optional Closing Date or
evidence of their issuance will be made available for checking at
the above office of Vinson & Elkins LLP at a reasonable
time in advance of such Optional Closing Date.
4. Offering by Underwriters .
It is understood that the several Underwriters propose to offer the
Offered Securities for sale to the public as set forth in the Final
Prospectus.
10
5. Certain Agreements of the
Company . The Company agrees with the several Underwriters
that:
(a) Additional Filings
. Unless filed pursuant to Rule 462(c) as part of the Additional
Registration Statement in accordance with the next sentence, the
Company will file the Final Prospectus, in a form approved by the
Representative, with the Commission pursuant to and in accordance
with subparagraph (1) (or, if applicable and if consented to
by the Representative, subparagraph (4)) of Rule 424(b)
not later than the earlier of (A) the second business day
following the execution and delivery of this Agreement or
(B) the fifteenth business day after the Effective Date of the
Initial Registration Statement. The Company will advise the
Representative promptly of any such filing pursuant to
Rule 424(b) and provide satisfactory evidence to the
Representative of such timely filing. If an Additional Registration
Statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not
occurred as of the execution and delivery of this Agreement, the
Company will file the additional registration statement or, if
filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on
or prior to 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, on or prior to the time the Final
Prospectus is finalized and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to
by the Representative.
(b) Filing of Amendments;
Response to Commission Requests . The Company will promptly
advise the Representative of any proposal to amend or supplement at
any time the Initial Registration Statement, any Additional
Registration Statement or any Statutory Prospectus and will not
effect such amendment or supplementation without the
Representative’s consent; and the Company will also advise
the Representative promptly of (i) the effectiveness of any
Additional Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement),
(ii) any amendment or supplementation of a Registration
Statement or any Statutory Prospectus, (iii) any request by
the Commission or its staff for any amendment to any Registration
Statement, for any supplement to any Statutory Prospectus or for
any additional information, (iv) the institution by the
Commission of any stop order proceedings in respect of a
Registration Statement or the threatening of any proceeding for
that purpose, and (v) the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Offered Securities in any jurisdiction or the institution or
threatening of any proceedings for such purpose. The Company will
use its best efforts to prevent the issuance of any
