|
Exhibit 1.1
1,600,000 Common Shares of
Beneficial Interest
WASHINGTON REAL ESTATE
INVESTMENT TRUST
UNDERWRITING
AGREEMENT
June 1, 2007
R OBERT W. B
AIRD & C O ., I
NCORPORATED
777 E Wisconsin Avenue
Milwaukee, WI 53202
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 to issue and sell to Robert W.
Baird & Co., Incorporated (the “ Underwriter
”) 1,600,000 of its common shares of beneficial interest
(“ Firm Securities ”) and also proposes to issue
and sell to the Underwriter, at the option of the Underwriter, an
aggregate of not more than 240,000 additional common shares of
beneficial interest (“ Optional Securities ”) as
set forth below. 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 Underwriter 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 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all 430C Information, that in any case has not then been superseded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. 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Information, that in any case has not then been superseded or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 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 9:00 a.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 Underwriter 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 A 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).
“ 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.
2
“ 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.
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 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 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 the Underwriter 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 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
May 31, 2007 (which is the most recent Statutory Prospectus
distributed to investors generally) and the other information, if
any, stated in Schedule A 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
3
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 the
Underwriter specifically for use therein, it being understood and
agreed that the only such information furnished by the 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 the Underwriter
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 the Underwriter 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 to consummate the transactions
contemplated hereby. 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 ”).
(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.
4
(i) Offered Securities
. The Offered Securities and all other outstanding shares of
beneficial interest of the Company have been duly authorized; 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 the Offered
Securities have been delivered and paid for in accordance with this
Agreement on each Closing Date, such Offered Securities will have
been, validly issued, fully paid and nonassessable, will be
consistent with the information in the General Disclosure Package
and will conform to the description thereof contained in the Final
Prospectus; the shareholders of the Company have no preemptive
rights with respect to the Offered Securities; 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.
(j) 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.
(k) 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 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.
(l) Listing . As of
the First Closing Date, the Offered Securities will have been
approved for listing on the New York Stock Exchange, subject to
notice of issuance.
(m) 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 in connection with the offering, issuance and sale
of the Offered Securities by the Company, except such as have been
obtained, or made and such as may be required under state
securities laws.
(n) 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.
(o) Absence of Defaults
and Conflicts Resulting from Transaction . The execution,
delivery and performance of this Agreement, and the issuance and
sale of the Offered Securities 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
5
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.
(p) 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.
(q) Authorization of
Agreement . This Agreement has been duly authorized, executed
and delivered by the Company.
(r) 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.
(s) 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.
(t) 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.
(u) 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.
6
(v) Accurate
Disclosure . The statements in the General Disclosure Package
and the Final Prospectus under the heading “Description of
Shares” and under the heading “Risk Factors” in
the Company’s 2006 Annual Report on Form 10-K and Quarterly
Report on Form 10-Q for the quarter ended March 31, 2007 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 in all
material respects.
(w) 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.
(x) 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.
(y) 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.
(z) 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.
(aa) 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 ”).
7
(bb) 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 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.
(cc) 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.
(dd) 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.
(ee) 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.
(ff) 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 ”).
8
(gg) 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.
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
Underwriter, and the Underwriter agrees to purchase from the
Company, at a purchase price of $36.18 per share, the Firm
Securities.
The Company will deliver the
Firm Securities to the Underwriter in a form reasonably acceptable
to the Underwriter against payment of the purchase price by the
Underwriter in Federal (same day) funds by wire transfer to an
account at a bank acceptable to the Underwriter 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 June 6, 2007, or
at such other time not later than seven full business days
thereafter as the Underwriter 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 Underwriter given to the Company from time to time
not more than 30 days subsequent to the date of the Final
Prospectus, the Underwriter may purchase all or less than all of
the Optional Securities at the purchase price per Security to be
paid for the Firm Securities less an amount equal to any dividend
paid by the Company and payable on any Firm Securities and not
payable on such Optional Securities. The Company agrees to sell to
the Underwriter the number of Optional Securities specified in such
notice and the Underwriter agrees to purchase such Optional
Securities. Such Optional Securities shall be purchased by the
Underwriter 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 Underwriter 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
Underwriter 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
Underwriter in a form reasonably acceptable to the Underwriter
against payment of the purchase price therefor in Federal (same
day) funds by wire transfer to an account at a bank acceptable to
the Underwriter 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
Underwr
|
