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Exhibit 1.1
Execution Copy
2,600,000 Common Shares of
Beneficial Interest
WASHINGTON REAL ESTATE
INVESTMENT TRUST
UNDERWRITING
AGREEMENT
May 20, 2008
R AYMOND J
AMES & A SSOCIATES , I
NC .
J.P. M ORGAN S
ECURITIES I NC .
As Representatives of the Several
Underwriters
c/o Raymond James & Associates,
Inc.
880 Carillon Parkway
St. Petersburg, FL 33716
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 (the “ Underwriters ”) to
issue and sell to the several Underwriters 2,600,000 of its
common shares of beneficial interest (“ Firm
Securities ”) and also proposes to issue and sell to the
Underwriters, at the option of the Underwriters, an aggregate of
not more than 390,000 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 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 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all 430C Information, that in any case has not then been superseded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 10:00 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 Representatives 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).
“ 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
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“ 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.
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 any Underwriter through the Representatives
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 19, 2008 (which is the most recent Statutory Prospectus
distributed to
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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
Representatives 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 the
Representatives 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 Representatives 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
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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) 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
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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.
(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,
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“ 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.
(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 2007 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 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
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“ 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
”).
(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
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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 ”).
(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
several Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a
purchase price of $33.408 per share, the respective number of Firm
Securities set forth opposite the names of the Underwriters set
forth in Schedule A hereto.
The Company will deliver the
Firm Securities to or as instructed by the Representatives for the
accounts of the several Underwriters in a form reasonably
acceptable to the Representatives 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 Representatives
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
May 23, 2008, or at such other time not later than seven full
business days thereafter as the Representatives 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 Representatives 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 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 Underwriters the number 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 number of Firm Securities set forth opposite such
Underwriter’s name bears to the total number of Firm
Securities (subject to adjustment by the Representatives 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
Representatives 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
9
Optional Closing Date, if
any, being sometimes referred to as a “ Closing Date
”), shall be determined by the Representatives 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 Representatives for the
accounts of the several Underwriters in a form reasonably
acceptable to the Representatives against payment of the purchase
price therefor in Federal (same day) funds by wire transfer to an
account at a bank acceptable to the Representatives 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.
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 Representatives, with the Commission pursuant to
and in accordance with subparagraph (1) (or, if applicable and
if consented to by the Representatives, 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
Representatives promptly of any such filing pursuant to
Rule 424(b) and provide satisfactory evidence to the
Representatives 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 Representatives.
(b) Filing of
Amendments; Response to Commission Requests . The Company will
promptly advise the Representatives 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
Representatives’ consent; and the Company will also advise
the Representatives 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 purpo
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