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Index to Financial Statements

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 10-K

 

x Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the fiscal year ended December 31, 2013

¨ Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the Transition Period From                     to                     .

  Commission file number   001-32336 (Digital Realty Trust, Inc.)
    000-54023 (Digital Realty Trust, L.P.)

 

DIGITAL REALTY TRUST, INC.

DIGITAL REALTY TRUST, L.P.

(Exact name of registrant as specified in its charter)

 

Maryland (Digital Realty Trust, Inc.)

Maryland (Digital Realty Trust, L.P.)

 

26-0081711

20-2402955

(State or other jurisdiction of incorporation or organization)   (IRS employer identification number)

Four Embarcadero Center, Suite 3200

San Francisco, CA

  94111
(Address of principal executive offices)   (Zip Code)

(415) 738-6500

(Registrant’s telephone number, including area code)

 

Securities registered pursuant to Section 12(b) of the Act:

     

Title of each class

 

Name of each exchange on which registered

Digital Realty Trust, Inc.   Common stock, $0.01 par value per share   New York Stock Exchange
  Series E cumulative redeemable preferred
stock, $0.01 par value per share
  New York Stock Exchange
  Series F cumulative redeemable preferred
stock, $0.01 par value per share
  New York Stock Exchange
  Series G cumulative redeemable preferred
stock, $0.01 par value per share
  New York Stock Exchange
Digital Realty Trust, L.P.   None   None

 

Securities registered pursuant to Section 12(g) of the Act:

Digital Realty Trust, Inc.    None
Digital Realty Trust, L.P.    Common Units of
Partnership Interest

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.

Digital Realty Trust, Inc.

   Yes   x     No   ¨

Digital Realty Trust, L.P.

   Yes   ¨     No   x

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.

Digital Realty Trust, Inc.

   Yes   ¨     No   x

Digital Realty Trust, L.P.

   Yes   ¨     No   x

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

Digital Realty Trust, Inc.

   Yes   x     No   ¨

Digital Realty Trust, L.P.

   Yes   x     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).

Digital Realty Trust, Inc.

   Yes   x     No   ¨

Digital Realty Trust, L.P.

   Yes   x     No   ¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Digital Realty Trust, Inc.:

Large accelerated filer   x    Accelerated filer   ¨
Non-accelerated filer   ¨ (Do not check if a smaller reporting company)    Smaller reporting company   ¨

Digital Realty Trust, L.P.:

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   x (Do not check if a smaller reporting company)    Smaller reporting company   ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).

Digital Realty Trust, Inc.

   Yes   ¨     No   x

Digital Realty Trust, L.P.

   Yes   ¨     No   x

The aggregate market value of the common equity held by non-affiliates of Digital Realty Trust, Inc. as of June 28, 2013 totaled approximately $7.8 billion based on the closing price for Digital Realty Trust, Inc.’s common stock on that day as reported by the New York Stock Exchange. Such value excludes common stock held by executive officers, directors and 10% or greater stockholders as of June 28, 2013. The identification of 10% or greater stockholders as of June 28, 2013 is based on Schedule 13G and amended Schedule 13G reports publicly filed before June 28, 2013. This calculation does not reflect a determination that such parties are affiliates for any other purposes.

There is no public trading market for the common units of Digital Realty Trust, L.P. As a result, the aggregate market value of the common units held by non-affiliates of Digital Realty Trust, L.P. cannot be determined.

Indicate the number of shares outstanding of each of the registrant’s classes of common stock, as of the latest practicable date.

Digital Realty Trust, Inc.:

Class

   Outstanding at February 20, 2014  

Common Stock, $.01 par value per share

     128,442,327   

DOCUMENTS INCORPORATED BY REFERENCE

Part III incorporates by reference portions of Digital Realty Trust, Inc.’s Proxy Statement for its 2014 Annual Meeting of Stockholders which the registrants anticipate will be filed no later than 120 days after the end of its fiscal year pursuant to Regulation 14A.

 

 

 


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EXPLANATORY NOTE

This report combines the annual reports on Form 10-K for the year ended December 31, 2013 of Digital Realty Trust, Inc., a Maryland corporation, and Digital Realty Trust, L.P., a Maryland limited partnership, of which Digital Realty Trust, Inc. is the sole general partner. Unless otherwise indicated or unless the context requires otherwise, all references in this report to “we,” “us,” “our,” “our company” or “the company” refer to Digital Realty Trust, Inc. together with its consolidated subsidiaries, including Digital Realty Trust, L.P. Unless otherwise indicated or unless the context requires otherwise, all references to “our operating partnership” or “the operating partnership” refer to Digital Realty Trust, L.P. together with its consolidated subsidiaries.

Digital Realty Trust, Inc. is a real estate investment trust, or REIT, and the sole general partner of Digital Realty Trust, L.P. As of December 31, 2013, Digital Realty Trust, Inc. owned an approximate 97.7% common general partnership interest in Digital Realty Trust, L.P. The remaining approximate 2.3% common limited partnership interests are owned by non-affiliated investors and certain directors and officers of Digital Realty Trust, Inc. As of December 31, 2013, Digital Realty Trust, Inc. owned all of the preferred limited partnership interests of Digital Realty Trust, L.P. As the sole general partner of Digital Realty Trust, L.P., Digital Realty Trust, Inc. has the full, exclusive and complete responsibility for the operating partnership’s day-to-day management and control.

We believe combining the annual reports on Form 10-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. into this single report results in the following benefits:

 

   

enhancing investors’ understanding of our company and our operating partnership by enabling investors to view the business as a whole in the same manner as management views and operates the business;

 

   

eliminating duplicative disclosure and providing a more streamlined and readable presentation since a substantial portion of the disclosure applies to both our company and our operating partnership; and

 

   

creating time and cost efficiencies through the preparation of one combined report instead of two separate reports.

There are a few differences between our company and our operating partnership, which are reflected in the disclosure in this report. We believe it is important to understand the differences between our company and our operating partnership in the context of how we operate as an interrelated consolidated company. Digital Realty Trust, Inc. is a REIT, whose only material asset is its ownership of partnership interests of Digital Realty Trust, L.P. As a result, Digital Realty Trust, Inc. does not conduct business itself, other than acting as the sole general partner of Digital Realty Trust, L.P., issuing public equity from time to time and guaranteeing certain unsecured debt of Digital Realty Trust, L.P. and certain of its subsidiaries. Digital Realty Trust, Inc. itself does not issue any indebtedness but guarantees the unsecured debt of Digital Realty Trust, L.P. and certain of its subsidiaries, as disclosed in this report. Digital Realty Trust, L.P. holds substantially all the assets of the company and holds the ownership interests in the company’s joint ventures. Digital Realty Trust, L.P. conducts the operations of the business and is structured as a partnership with no publicly traded equity. Except for net proceeds from public equity issuances by Digital Realty Trust, Inc., which are generally contributed to Digital Realty Trust, L.P. in exchange for partnership units, Digital Realty Trust, L.P. generates the capital required by the company’s business through Digital Realty Trust, L.P.’s operations, by Digital Realty Trust, L.P.’s direct or indirect incurrence of indebtedness or through the issuance of partnership units.

The presentation of noncontrolling interests in operating partnership, stockholders’ equity and partners’ capital are the main areas of difference between the consolidated financial statements of Digital Realty Trust, Inc. and those of Digital Realty Trust, L.P. The common limited partnership interests held by the limited partners in Digital Realty Trust, L.P. are presented as limited partners’ capital within partners’ capital in Digital Realty Trust, L.P.’s consolidated financial statements and as noncontrolling interests in operating partnership within equity in Digital Realty Trust, Inc.’s consolidated financial statements. The common and preferred partnership interests held by Digital Realty Trust, Inc. in Digital Realty Trust, L.P. are presented as general partner’s capital within partners’ capital in Digital Realty Trust, L.P.’s consolidated financial statements and as preferred stock, common stock, additional paid-in capital and accumulated dividends in excess of earnings within stockholders’


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equity in Digital Realty Trust, Inc.’s consolidated financial statements. The differences in the presentations between stockholders’ equity and partners’ capital result from the differences in the equity issued at the Digital Realty Trust, Inc. and the Digital Realty Trust, L.P. levels.

To help investors understand the significant differences between the company and the operating partnership, this report presents the following separate sections for each of the company and the operating partnership:

 

   

consolidated financial statements;

 

   

the following notes to the consolidated financial statements:

 

   

Debt of the company and Debt of the operating partnership;

 

   

Income per Share and Income per Unit;

 

   

Equity and Accumulated Other Comprehensive Loss, Net of the company and Capital and Accumulated Other Comprehensive Income (Loss) of the operating partnership; and

 

   

Quarterly Financial Information;

 

   

Liquidity and Capital Resources in Management’s Discussion and Analysis of Financial Condition and Results of Operations;

 

   

Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities; and

 

   

Selected Financial Data.

This report also includes separate Item 9A. Controls and Procedures sections and separate Exhibit 31 and 32 certifications for each of the company and the operating partnership in order to establish that the Chief Executive Officer and the Chief Financial Officer of each entity have made the requisite certifications and that the company and the operating partnership are compliant with Rule 13a-15 or Rule 15d-15 of the Securities Exchange Act of 1934 and 18 U.S.C. §1350.

In order to highlight the differences between the company and the operating partnership, the separate sections in this report for the company and the operating partnership specifically refer to the company and the operating partnership. In the sections that combine disclosure of the company and the operating partnership, this report refers to actions or holdings as being actions or holdings of the company. Although the operating partnership is generally the entity that enters into contracts and joint ventures and holds assets and debt, reference to the company is appropriate because the business is one enterprise and the company operates the business through the operating partnership.

As general partner with control of the operating partnership, Digital Realty Trust, Inc. consolidates the operating partnership for financial reporting purposes, and it does not have significant assets other than its investment in the operating partnership. Therefore, the assets and liabilities of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. are the same on their respective consolidated financial statements. The separate discussions of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. in this report should be read in conjunction with each other to understand the results of the company on a consolidated basis and how management operates the company.


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DIGITAL REALTY TRUST, INC. AND DIGITAL REALTY TRUST, L.P.

FORM 10-K

FOR THE YEAR ENDED DECEMBER 31, 2013

TABLE OF CONTENTS

 

         PAGE NO.  

PART I.

  

ITEM 1.

 

Business

     1   

ITEM 1A.

 

Risk Factors

     8   

ITEM 1B.

 

Unresolved Staff Comments

     34   

ITEM 2.

 

Properties

     34   

ITEM 3.

 

Legal Proceedings

     46   

ITEM 4.

 

Mine Safety Disclosures

     46   

PART II.

  

ITEM 5.

 

Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

     47   

ITEM 6.

 

Selected Financial Data

     50   

ITEM 7.

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

     55   

ITEM 7A.

 

Quantitative and Qualitative Disclosures About Market Risk

     92   

ITEM 8.

 

Financial Statements and Supplementary Data

     94   

ITEM 9.

 

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

     181   

ITEM 9A.

 

Controls and Procedures

     181   

ITEM 9B.

 

Other Information

     182   

PART III.

  

ITEM 10.

 

Directors, Executive Officers and Corporate Governance

     183   

ITEM 11.

 

Executive Compensation

     183   

ITEM 12.

 

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

     183   

ITEM 13.

 

Certain Relationships and Related Transactions and Director Independence

     183   

ITEM 14.

 

Principal Accounting Fees and Services

     183   

PART IV.

  

ITEM 15.

 

Exhibits and Financial Statement Schedules

     184   
SIGNATURES      190   
EXHIBIT INDEX      194   


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PART I

 

ITEM 1. BUSINESS

General

We own, acquire, develop and manage technology-related real estate. We target high-quality, strategically located properties containing applications and operations critical to the day-to-day operations of technology industry tenants and corporate enterprise datacenter users, including the information technology, or IT, departments of Fortune 100 and financial services companies. Our tenant base is diversified within the technology industry and reflects a broad spectrum of regional, national and international tenants that are leaders in their respective areas. Digital Realty Trust, L.P., a Maryland limited partnership, is the entity through which Digital Realty Trust, Inc., a Maryland corporation, conducts its business and owns its assets. Digital Realty Trust, Inc. operates as a REIT for federal income tax purposes.

As of December 31, 2013, our portfolio consisted of 131 properties, including 12 properties held as investments in unconsolidated joint ventures and developable land, of which, 104 are located throughout North America, 22 are located in Europe, three are located in Australia and two are located in Asia. We are diversified, with a presence in several major markets where corporate data center and technology tenants are concentrated, including the Boston, Chicago, Dallas, Los Angeles, New York Metro, Northern Virginia, Phoenix, San Francisco and Silicon Valley metropolitan areas in the United States, the Amsterdam, Dublin, London and Paris markets in Europe and the Singapore, Sydney, Melbourne, Hong Kong and Osaka markets in the Asia Pacific region. Our properties contain a total of approximately 24.5 million net rentable square feet, including approximately 1.8 million square feet of space under active development, which includes current base building and data center projects in progress, and approximately 1.3 million square feet of space held for future development, which includes space held for future data center development and excludes space under active development. A significant component of our current and future internal growth is anticipated through the development of our existing active development space and space held for future development and through acquisitions of new properties. As of December 31, 2013, our portfolio, including the 12 properties held as investments in unconsolidated joint ventures and excluding active development space and space held for development, was approximately 92.6% leased. The types of properties within our focus include:

 

   

Internet gateway datacenters, which serve as hubs for Internet and data communications within and between major metropolitan areas;

 

   

Corporate datacenters, which provide secure, continuously available environments for the storage and processing of critical electronic information. Data centers are used for disaster recovery purposes, transaction processing and to house corporate IT operations;

 

   

Technology manufacturing properties, which contain highly specialized manufacturing environments for such purposes as semiconductor manufacturing and specialty pharmaceutical manufacturing; and

 

   

Regional or national offices of technology companies that are located in our target markets.

Unlike traditional office and flex/research and development space, the location of and improvements to our facilities are generally essential to our tenants’ businesses, which we believe results in high occupancy levels, long lease terms and low tenant turnover. In addition, many of our properties have tenant improvements that have been installed at our tenants’ expense. The tenant improvements in our facilities are generally readily adaptable for use by similar tenants.

Digital Realty Trust, Inc. was incorporated in the state of Maryland on March 9, 2004. Digital Realty Trust, L.P. was organized in the state of Maryland on July 21, 2004. Our principal executive offices are located at Four Embarcadero Center, Suite 3200, San Francisco, California 94111. Our telephone number at that location is (415) 738-6500. Our website is located at www.digitalrealty.com. The information found on, or otherwise accessible through, our website is not incorporated into, and does not form a part of, this annual report or any other report or document we file with or furnish to the U.S. Securities and Exchange Commission, or the SEC.

 

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Recent Developments

On October 1, 2013, we repaid in full a £42.8 million (or approximately $69.3 million based on the exchange rate of $1.6195 to £1.00 as of October 1, 2013) mortgage loan on our Mundells Roundabout property. This repayment was funded with borrowings under our term loan facility.

On October 18, 2013, we repaid in full a €6.4 million (or approximately $8.8 million based on the exchange rate of $1.3687 to €1.00 as of October 18, 2013) mortgage loan on our Gyroscoopweg 2E-2F property. This repayment was funded with borrowings under our global revolving credit facility.

On November 5, 2013, we repaid in full the Series B notes under the Prudential shelf facility in the amount of $33 million. This repayment was funded with borrowings under our global revolving credit facility.

On November 8, 2013, we repaid in full a $45.8 million mortgage loan on our 360 Spear Street property. This repayment was funded with borrowings under our global revolving credit facility.

On December 19, 2013, we completed the acquisition of a 108,000 square foot data center in Somerset, New Jersey (New York Metro) for approximately $35.3 million. The purchase price includes the assumption of a $26.4 million mortgage loan. The acquisition was financed with borrowings under our global revolving credit facility.

On February 11, 2014, we declared the following dividends per share. The operating partnership will make an equivalent distribution per unit.

 

Share / Unit Class

  Series E
Preferred Stock
and Unit
    Series F
Preferred Stock
and Unit
    Series G
Preferred Stock
and Unit
    Common stock
and common unit
 

Dividend and distribution amount

    $0.437500        $0.414063        $0.367188        $0.830000   

Dividend and distribution payable date

    March 31, 2014        March 31, 2014        March 31, 2014        March 31, 2014   

Dividend and distribution payable to holders of record on

    March 14, 2014        March 14, 2014        March 14, 2014        March 14, 2014   

Annual equivalent rate of dividend and distribution

    $1.750        $1.656        $1.469        $3.320   

Our Competitive Strengths

We believe we distinguish ourselves from other owners, acquirors and managers of technology-related real estate through our competitive strengths, which include:

 

   

High-Quality Portfolio that is Difficult to Replicate. Our portfolio contains state-of-the-art data center facilities with extensive tenant improvements. Based on current market rents and the estimated replacement costs of our properties and their improvements, we believe that they could not be replicated today on a cost-competitive basis. Our portfolio of data center facilities is equipped to meet the power and cooling requirements for the most demanding corporate IT applications. Many of the properties in our portfolio are located on major aggregation points formed by the physical presence of multiple major telecommunications service providers, which reduces our tenants’ costs and operational risks and increases the attractiveness of our buildings.

 

   

Presence in Key Markets. Our portfolio is located in 33 metropolitan areas, including the Boston, Chicago, Dallas, Los Angeles, New York Metro, Northern Virginia, Phoenix, San Francisco and Silicon Valley metropolitan areas in the United States, the Amsterdam, Dublin, Geneva, London and Paris markets in Europe and the Singapore, Sydney, Melbourne, Hong Kong and Osaka markets in the Asia Pacific region, and is diversified so that no one market represented more than 12.0% of the aggregate annualized rent of our portfolio as of December 31, 2013. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Overview—Revenue Base.”

 

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Proven Experience Executing New Leases. We have considerable experience in identifying and leasing to new tenants. The combination of our specialized data center leasing team and customer referrals continues to provide a robust pipeline of new tenants. During the year ended December 31, 2013, we commenced new leases totaling approximately 1.0 million square feet, which represent approximately $120.6 million in annualized GAAP rent. During the year ended December 31, 2013, we signed new leases totaling approximately 1.3 million square feet, which represent approximately $161.3 million in annualized GAAP rent. These leases were comprised of Powered Base Buildings ® , Turn-Key Flex ® space, Custom Solutions product and space for ancillary office and other uses.

 

   

Demonstrated Acquisition Capability. As of December 31, 2013, our portfolio consisted of 131 properties, including 12 properties held as investments in unconsolidated joint ventures and developable land, for an aggregate of 24.5 million net rentable square feet, including approximately 1.8 million square feet of space under active development and approximately 1.3 million square feet of space held for future development. We have developed detailed, standardized procedures for evaluating acquisitions, including income producing assets and vacant properties and land suitable for development, to ensure that they meet our financial, technical and other criteria. These procedures and our in-depth knowledge of the technology and data center industries allow us to identify strategically located properties and evaluate investment opportunities efficiently and, as appropriate, commit and close quickly. Our broad network of contacts within a highly fragmented universe of sellers and brokers of technology-related real estate enables us to capitalize on acquisition opportunities. As a result, we acquired a substantial portion of our properties before they were broadly marketed by real estate brokers.

 

   

Flexible Datacenter Solutions. We provide flexible, customer oriented solutions designed to meet the needs of domestic and international companies across multiple industry verticals, including Turn-Key Flex ® , Powered Base Building ® and Custom Solutions options. Our Turn-Key Flex ® data centers are move-in ready, physically secure facilities with the power and cooling capabilities to support mission-critical IT enterprise applications. We believe our Turn-Key Flex ® facilities are effective solutions for tenants that lack the expertise, capital budget or desire to provide their own extensive data center infrastructure, management and security. For tenants that possess the ability to build and operate their own facility, our Powered Base Building ® solution provides the physical location, required power and network access necessary to support a state-of-the-art data center. Our in-house engineering and design and construction professionals can also provide tenants with our Custom Solutions product to meet their unique specifications. Our Critical Facilities Management ® services and team of technical engineers and data center operations experts provide 24/7 support for these mission-critical facilities.

 

   

Differentiating Development Advantages. Our extensive development activity, operating scale and process-based approach to data center design, construction and operations result in significant cost savings and added value for our tenants. We have leveraged our purchasing power by securing global purchasing agreements and developing relationships with major equipment manufacturers, reducing costs and shortening delivery timeframes on key components, including major mechanical and electrical equipment. Utilizing our innovative modular data center design referred to as POD Architecture ® , we deliver what we believe to be a technically superior data center environment at significant cost savings. In addition, by utilizing our POD Architecture ® to develop new Turn-Key Flex ® facilities in our existing Powered Base Building ® facilities, on average we are able to deliver a fully commissioned facility in just under 30 weeks. Finally, our access to capital allows us to provide data center solutions for tenants that do not want to invest their own capital.

 

   

Diverse Tenant Base Across a Variety of Industry Sectors. We use our in-depth knowledge of the requirements and trends for Internet and data communications and corporate data center users to market our properties to domestic and international tenants with specific technology needs. At December 31, 2013, we had 655 tenants across a variety of industry verticals, ranging from financial services, cloud and information technology services, to manufacturing, energy, health care and consumer products. Our largest tenant, comprised of subsidiaries of CenturyLink, Inc., accounted for approximately 7.8% of the aggregate annualized rent of our portfolio as of December 31, 2013 and no other single tenant accounted for more than approximately 5.5% of the aggregate annualized rent of our portfolio.

 

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Experienced and Committed Management Team and Organization. Our senior management team has an average of 30 years of experience in the technology or real estate industries, including experience as investors in, advisors to and founders of technology companies. We believe that our senior management team’s extensive knowledge of both the real estate and the technology industries provides us with a key competitive advantage. At December 31, 2013, our senior management team and directors collectively owned common equity interests in our company of approximately 0.7%, which aligns their interests with those of our stockholders.

Business and Growth Strategies

Our primary business objectives are to maximize sustainable long-term growth in earnings and funds from operations per share and unit and to maximize cash flow and returns to our stockholders and our operating partnership’s unitholders, including through the payment of distributions. Our business strategies to achieve these objectives are:

 

   

Achieve Superior Returns on Development Inventory. At December 31, 2013, we had approximately 1.8 million square feet of space under active development for Turn-Key Flex ® , Powered Base Building ® and Custom Solutions products, all of which are expected to be income producing on or after completion, in eight U.S. markets, three European markets, one Canadian market and one Australian market, consisting of approximately 1,063,000 square feet of base building construction and 697,000 square feet of data center construction. We may continue to build out our development portfolio when justified by anticipated returns.

 

   

Capitalize on Acquisition Opportunities.  We believe that acquisitions enable us to increase cash flow and create long-term stockholder value. Our relationships with corporate information technology groups, technology tenants and real estate brokers who are dedicated to serving these tenants provide us with ongoing access to potential acquisitions and often enable us to avoid competitive bidding. Furthermore, the specialized nature of technology-related real estate makes it more difficult for traditional real estate investors to understand, which results in reduced competition for acquisitions relative to other property types. We believe this dynamic creates an opportunity for us to obtain better risk-adjusted returns on our capital.

 

   

Access and Use Capital Efficiently. We believe we can increase stockholder returns by effectively accessing and deploying capital. Since Digital Realty Trust, Inc.’s initial public offering in 2004, our company has raised approximately $11.7 billion of capital through common, preferred and convertible preferred equity offerings, exchangeable debt offerings, non-exchangeable bond offerings, our global revolving credit facility, our term loan facility, the Prudential shelf facility, secured mortgage financings and refinancings and sales of non-core assets. We will endeavor to maintain financial flexibility while using our liquidity and access to capital to support operations, including our acquisition, leasing and development programs, which are important sources of our growth.

 

   

Maximize the Cash Flow of Our Properties.  We aggressively manage and lease our assets to increase their cash flow. We often acquire properties with substantial in-place cash flow and some vacancy, which enables us to create upside through lease-up. Moreover, many of our properties contain extensive in-place infrastructure or buildout that may result in higher rents when leased to tenants seeking these improvements. We control our costs by negotiating expense pass-through provisions in tenant leases for operating expenses, including power costs and certain capital expenditures. Leases covering approximately 75% of the leased net rentable square feet in our portfolio as of December 31, 2013 required tenants to pay all or a portion of increases in operating expenses, including real estate taxes, insurance, common area charges and other expenses.

 

   

Leverage Strong Industry Relationships. We use our strong industry relationships with national and regional corporate enterprise information technology groups and technology-intensive companies to identify and comprehensively respond to their real estate needs. Our company’s leasing and sales

 

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professionals are real estate and technology industry specialists who can develop complex facility solutions for the most demanding corporate data center and other technology tenants.

Competition

We compete with numerous developers, owners and operators of real estate and datacenters, many of which own properties similar to ours in the same markets in which our properties are located, including DuPont Fabros Technology, Inc., CoreSite Realty Corporation, CyrusOne Inc., QTS Realty Trust, Inc. and various local developers in the U.S., as well as Global Switch Holdings Limited and various regional operators in Europe, Asia and Australia. If our competitors offer space that our tenants or potential tenants perceive to be superior to ours based on numerous factors, including available power, security considerations, location, or connectivity, or if they offer rental rates below current market rates, or below the rental rates we are offering, we may lose tenants or potential tenants or be required to incur costs to improve our properties or reduce our rental rates. In addition, recently many of our competitors have developed additional datacenter space. If the supply of datacenter space continues to increase as a result of these activities or otherwise, rental rates may be reduced or we may face delays in leasing or be unable to lease our vacant space, including space that we develop. Finally, if tenants or potential tenants desire services that we do not offer, we may not be able to lease our space to those tenants. Our financial condition, results of operations, cash flow, cash available for distribution and ability to satisfy our debt service obligations could be materially adversely affected as a result of any or all of these factors.

Geographic Information

Operating revenues from properties in the United States were $1.1 billion, $1.1 billion and $946.0 million and outside the United States were $349.1 million, $228.9 million and $116.7 million for the years ended December 31, 2013, 2012 and 2011, respectively. We had long-lived assets located in the United States of $5.6 billion, $5.0 billion and $4.3 billion and outside the United States of $2.7 billion, $2.5 billion and $1.0 billion as of December 31, 2013, 2012 and 2011, respectively.

Operating revenues from properties located in the United Kingdom were $197.0 million, $117.2 million and $43.6 million, or 13.3%, 9.2% and 4.1% of total operating revenues, for the years ended December 31, 2013, 2012 and 2011, respectively. No other foreign country comprised more than 10% of total operating revenues for each of these years. We had long-lived assets located in the United Kingdom of $1.8 billion, $1.7 billion and $356.0 million, or 21.1%, 22.3% and 6.8% of total long-lived assets, as of December 31, 2013, 2012 and 2011, respectively. No other foreign country comprised more than 10% of total long-lived assets as of each of December 31, 2013, 2012 and 2011. See “Risk Factors—Ownership of properties located outside of the United States subjects us to foreign currency and related risks which may adversely impact our ability to make distributions”, “—Our international activities are subject to special risks different than those faced by us in the United States and we may not be able to effectively manage our international business” and “—We face risks with our international acquisitions associated with investing in unfamiliar markets” for risks relating to our foreign operations.

Regulation

General

Office properties in our markets are subject to various laws, ordinances and regulations, including regulations relating to common areas. We believe that each of our properties as of December 31, 2013 has the necessary permits and approvals to operate its business.

Americans With Disabilities Act

Our properties must comply with Title III of the Americans with Disabilities Act of 1990, or the ADA, to the extent that such properties are “public accommodations” as defined by the ADA. The ADA may require

 

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removal of structural barriers to access by persons with disabilities in certain public areas of our properties where such removal is readily achievable. We believe that our properties are in substantial compliance with the ADA and that we will not be required to make substantial capital expenditures to address the requirements of the ADA. However, noncompliance with the ADA could result in imposition of fines or an award of damages to private litigants. The obligation to make readily achievable accommodations is an ongoing one, and we will continue to assess our properties and to make alterations as appropriate in this respect.

Environmental Matters

Under various laws relating to the protection of the environment, a current or previous owner or operator of real estate may be liable for contamination resulting from the presence or discharge of hazardous or toxic substances at that property, and may be required to investigate and clean up such contamination at or emanating from that property. Such laws often impose liability without regard to whether the owner or operator knew of, or was responsible for, the presence of the contaminants, and the liability may be joint and several. Previous owners used some of our properties for industrial and retail purposes, and those properties may contain some level of environmental contamination. Fuel storage tanks are present at many of our properties, and if releases were to occur, we may be liable for the costs of cleaning any resulting contamination. The presence of contamination or the failure to remediate contamination at our properties may expose us to third-party liability or materially adversely affect our ability to sell, lease or develop the real estate or to borrow using the real estate as collateral.

Some of the properties may contain asbestos-containing building materials. Environmental laws require that asbestos-containing building materials be properly managed and maintained, and may impose fines and penalties on building owners or operators for failure to comply with these requirements. These laws may also allow third parties to seek recovery from owners or operators for personal injury associated with exposure to asbestos-containing building materials.

In addition, some of our tenants, particularly those in the biotechnology and life sciences industry and those in the technology manufacturing industry, routinely handle hazardous substances and wastes as part of their operations at our properties, including chemical solvents, medical waste, hydrocarbons, batteries and pesticides. Environmental laws and regulations subject our tenants, and potentially us, to liability resulting from these activities or from previous industrial or retail uses of those properties. Environmental liabilities could also affect a tenant’s ability to make rental payments to us. We require our tenants to comply with these environmental laws and regulations and to indemnify us for any related liabilities.

Independent environmental consultants have conducted Phase I or similar environmental site assessments on all of the properties in our portfolio. Site assessments are intended to discover and evaluate information regarding the environmental condition of the surveyed property and surrounding properties. These assessments do not generally include soil samplings, subsurface investigations or an asbestos survey. None of the recent site assessments revealed any past or present environmental liability that we believe would have a material adverse effect on our business, assets, results of operations or our competitive position. However, the assessments may have failed to reveal all environmental conditions, liabilities or compliance concerns. Material environmental conditions, liabilities or compliance concerns may have arisen after the review was completed or may arise in the future; and future laws, ordinances or regulations may impose material additional environmental liability.

Our properties and their uses often require permits from various government agencies, including permits related to zoning and land use, such as permits to operate data center facilities. Certain permits from state or local environmental regulatory agencies, including regulators of air quality, are usually required to install and operate diesel-powered generators, which provide emergency back-up power at some of our facilities. These permits often set emissions limits for certain air pollutants, including oxides of nitrogen. In addition, various federal, state, and local environmental, health and safety requirements, such as fire requirements and treated and storm water discharge requirements, apply to some of our properties. Changes to applicable regulations, such as air quality regulations, or the permit requirements for equipment at our facilities, could hinder or prevent our construction or operation of data center facilities.

 

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The environmental laws and regulations to which our properties are subject may change in the future, and new laws and regulations may be created. Such laws include those directly regulating our climate change impacts and those which regulate the climate change impacts of companies with which we do business, such as utilities providing our facilities with electricity. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Factors Which May Influence Future Results of Operations—Climate change legislation.” We do not know if or how the requirements will change, but changes may require that we make significant unanticipated expenditures, and such expenditures may materially adversely impact our financial condition, cash flow, results, cash available for distributions, common stock’s per share trading price, our competitive position and ability to satisfy our debt service obligations.

Insurance

We carry comprehensive liability, fire, extended coverage, earthquake, business interruption and rental loss insurance covering all of the properties in our portfolio under a blanket policy. We select policy specifications and insured limits which we believe to be appropriate given the relative risk of loss, the cost of the coverage and industry practice and, in the opinion of our company’s management, the properties in our portfolio are currently adequately insured. We do not carry insurance for generally uninsured losses such as loss from war or nuclear reaction. In addition, we carry earthquake insurance on our properties in an amount and with deductibles which we believe are commercially reasonable. Certain of the properties in our portfolio are located in areas known to be seismically active. See “Risk Factors—Risks Related to Our Business and Operations—Potential losses may not be covered by insurance.”

Employees

As of December 31, 2013, we had 784 employees. None of these employees are represented by a labor union.

How to Obtain Our SEC Filings

All reports we file with the SEC will be available free of charge via EDGAR through the SEC website at www.sec.gov. In addition, the public may read and copy materials we file with the SEC at the SEC’s public reference room located at 100 F Street, N.E., Washington, D.C. 20549. The public may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. We will also provide copies of our Forms 8-K, 10-K, 10-Q, Proxy Statement, Annual Report and amendments to those documents at no charge to investors upon request and make electronic copies of such reports available through our website at www.digitalrealty.com as soon as reasonably practicable after filing such material with the SEC. The information found on, or otherwise accessible through, our website is not incorporated by reference into, nor does it form a part of, this report or any other document that we file with the SEC.

Offices

Our headquarters are located in San Francisco. We have domestic offices in Boston, Chicago, Dallas, Los Angeles, New York, Northern Virginia and Phoenix and international offices in Dublin, London, Paris, Singapore, Sydney and Hong Kong.

Reports to Security Holders

Digital Realty Trust, Inc. is required to send an annual report to its securityholders and to our operating partnership’s unitholders.

 

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ITEM 1A. RISK FACTORS

For purposes of this section, the term “stockholders” means the holders of shares of Digital Realty Trust, Inc.’s common stock and preferred stock. Set forth below are the risks that we believe are material to Digital Realty Trust, Inc.’s stockholders and Digital Realty Trust, L.P.’s unitholders. You should carefully consider the following factors in evaluating our company, our properties and our business. The occurrence of any of the following risks might cause Digital Realty Trust, Inc.’s stockholders and Digital Realty Trust, L.P.’s unitholders to lose all or a part of their investment. Some statements in this report, including statements in the following risk factors, constitute forward-looking statements. Please refer to the section entitled “Forward-Looking Statements” starting on page 33.

Risks Related to Our Business and Operations

Global economic conditions could adversely affect our liquidity and financial condition.

In the United States and globally, market and economic conditions have been unprecedented over the past several years and challenging with tighter credit conditions and slower economic growth in many markets in which we own properties and conduct our operations. The U.S. and global economies have experienced a recession and face continued concerns about the systemic impact of adverse economic conditions, such as high energy costs, geopolitical issues, the availability and cost of credit, unstable global financial and mortgage markets, high corporate, consumer and governmental debt levels, high unemployment and declining residential and commercial real estate markets.

As a result of these conditions, general economic conditions and the cost and availability of capital have been and may again be adversely affected in some or all of the markets in which we own properties and conduct our operations. Renewed or increased turbulence in the U.S., European and other international financial markets and economies may adversely affect our ability, and the ability of our tenants, to replace or renew maturing liabilities on a timely basis, access the capital markets to meet liquidity and capital expenditure requirements and may result in adverse effects on our, and our tenants’, businesses, financial condition and results of operations.

In addition, our access to funds under our global revolving credit facility depend on the ability of the lenders that are parties to such facilities to meet their funding commitments to us. We cannot assure you that long-term disruptions in the global economy and tighter credit conditions among, and potential failures or nationalizations of, third party financial institutions as a result of such disruptions will not have an adverse effect on our lenders. If our lenders are not able to meet their funding commitments to us, our business, results of operation, cash flows and financial condition could be adversely affected.

If we do not have sufficient cash flow to continue operating our business and are unable to borrow additional funds, access our existing lines of credit or raise equity or debt capital, we may need to find alternative ways to increase our liquidity. Such alternatives may include, without limitation, curtailing development activity, disposing of one or more of our properties possibly on disadvantageous terms or entering into or renewing leases on less favorable terms than we otherwise would.

Our properties depend upon the demand for technology-related real estate.

Our portfolio of properties consists primarily of technology-related real estate and datacenter real estate in particular. A decrease in the demand for datacenter space, Internet gateway facilities or other technology-related real estate would have a greater adverse effect on our business and financial condition than if we owned a portfolio with a more diversified tenant base or less specialized use. Our substantial development activities make us particularly susceptible to general economic slowdowns, including recessions, as well as adverse developments in the corporate datacenter, Internet and data communications and broader technology industries. Any such slowdown or adverse development could lead to reduced corporate IT spending or reduced demand for datacenter space. Reduced demand could also result from business relocations, including to markets that we do

 

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not currently serve. Changes in industry practice or in technology, such as virtualization technology, more efficient or miniaturization of computing or networking devices, or devices that require higher power densities than today’s devices, could also reduce demand for the physical datacenter space we provide or make the tenant improvements in our facilities obsolete or in need of significant upgrades to remain viable. In addition, the development of new technologies, the adoption of new industry standards or other factors could render many of our tenants’ current products and services obsolete or unmarketable and contribute to a downturn in their businesses, thereby increasing the likelihood that they default under their leases, become insolvent or file for bankruptcy.

We may be unable to lease vacant or development space or renew leases, or re-lease space as leases expire.

At December 31, 2013, we owned approximately 1.8 million square feet of space under active development and approximately 1.3 million square feet of space held for future development. We intend to continue to add new space to our development inventory and to continue to develop additional space from this inventory. A substantial portion of the space that we develop has been, and may continue to be, developed on a speculative basis, meaning that we do not have a signed lease for the space when we begin the development process. We also develop space specifically for tenants pursuant to leases signed prior to beginning the development process. In those cases, if we fail to meet our development obligations under those leases, these tenants may be able to terminate the leases and we would be required to find a new tenant for this space. In addition, in certain circumstances we lease data center facilities prior to their completion. If we fail to complete the facilities in a timely manner, the tenant may be entitled to terminate its lease, seek damages or penalties against us or pursue other remedies and we may be required to find a new tenant for the space. We cannot assure you that once we have developed space or land we will be able to successfully lease it at all, or at rates we consider favorable or expected at the time we commenced development. If we are not able to successfully lease the space that we develop, if development costs are higher than we currently estimate, or if lease rates are lower than expected when we began the project or are otherwise undesirable, our revenue and operating results could be adversely affected.

In addition, as of December 31, 2013, leases representing 14.3% of the square footage of the properties in our portfolio, excluding space held for development, were scheduled to expire through 2015, and an additional 7.8% of the net rentable square footage, excluding space held for development, was available to be leased. Some of this space may require substantial capital investment to meet the power and cooling requirements of today’s advanced data centers, or may no longer be suitable for this use. In addition, we cannot assure you that leases will be renewed or that our properties will be re-leased at all, or at net effective rental rates equal to or above the current average net effective rental rates. If the rental rates for our properties decrease, our existing tenants do not renew their leases, we do not re-lease our available space, including newly developed space and space for which leases are scheduled to expire, or it takes longer for us to lease or re-lease this space or for rents to commence on this space, our financial condition, results of operations, cash flow, cash available for distribution and ability to satisfy our debt service obligations could be materially adversely affected.

Additionally, leasing space in one of our data centers typically involves a significant commitment of resources and due diligence on the part of our customers regarding the adequacy of our facilities. As a result, the leasing of data center space can have a long sales cycle, and we may expend significant time and resources in pursuing a particular transaction that may not result in revenue. Our inability to adequately manage the risks associated with the sales cycle may adversely affect our business, financial condition and results of operations.

Our growth depends on external sources of capital which are outside of our control.

In order for Digital Realty Trust, Inc. to maintain its qualification as a REIT, it is required under the Internal Revenue Code of 1986, as amended, which we refer to as the Code, to annually distribute at least 90% of its net taxable income, determined without regard to the dividends paid deduction and excluding any net capital gain. In

 

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addition, Digital Realty Trust, Inc. will be subject to income tax at regular corporate rates to the extent that it distributes less than 100% of its net taxable income, including any net capital gains. Digital Realty Trust, L.P. is required to make distributions to Digital Realty Trust, Inc. that will enable the latter to satisfy this distribution requirement and avoid income and excise tax liability. Because of these distribution requirements, we may not be able to fund future capital needs, including any necessary acquisition or development financing, from operating cash flow. Consequently, we rely on third-party sources to fund our capital needs.

Our access to third-party sources of capital depends on a number of factors, including general market conditions, the market’s perception of our business prospects and growth potential, our current and expected future earnings, funds from operations and growth thereof, our cash flow and cash distributions, and the market price per share of Digital Realty Trust, Inc.’s common stock. We cannot assure you that we will be able to obtain equity or debt financing at all or on terms favorable or acceptable to us. Any additional debt we incur will increase our leverage. Further, equity markets have experienced high volatility recently and we cannot assure you that we will be able to raise capital through the sale of equity securities at all or on favorable terms. Sales of equity on unfavorable terms could result in substantial dilution to Digital Realty Trust, Inc.’s common stockholders and Digital Realty Trust, L.P.’s unitholders. In addition, we may be forced to dispose of one or more of our properties, possibly on disadvantageous terms.

If we cannot obtain capital from third-party sources, we may not be able to acquire or develop properties when strategic opportunities exist, satisfy our debt service obligations, pay cash dividends to Digital Realty Trust, Inc.’s stockholders or make distributions to Digital Realty Trust, L.P.’s unitholders.

Declining real estate valuations and impairment charges could adversely affect our earnings and financial condition.

We review each of our properties for indicators that its carrying amount may not be recoverable. Examples of such indicators may include a significant decrease in the market price, a significant adverse change in the extent or manner the property is being used in its physical condition or expected to be used based on the underwriting at the time of acquisition, an accumulation of costs significantly in excess of the amount originally expected for the acquisition or development, or a history of operating or cash flow losses. When such impairment indicators exist, we review an estimate of the future undiscounted net cash flows (excluding interest charges) expected to result from the real estate investment’s use and eventual disposition and compare to the carrying value of the property. We consider factors such as future operating income, trends and prospects, as well as the effects of leasing demand, competition and other factors. If our future undiscounted net cash flow evaluation indicates that we are unable to recover the carrying value of a real estate investment, an impairment loss is recorded to the extent that the carrying value exceeds the estimated fair value of the property. These losses have a direct impact on our net income because recording an impairment loss results in an immediate negative adjustment to net income. The evaluation of anticipated cash flows is highly subjective and is based in part on assumptions regarding future occupancy, rental rates and capital requirements that could differ materially from actual results in future periods. A worsening real estate market may cause us to reevaluate the assumptions used in our impairment analysis. Impairment charges could adversely affect our financial condition, results of operations and cash available for distribution.

We depend on significant tenants, and many of our properties are single-tenant properties or are currently occupied by single tenants.

As of December 31, 2013, the 20 largest tenants in our property portfolio represented approximately 46% of the total annualized rent generated by our properties. Our largest tenants by annualized rent are subsidiaries of CenturyLink, Inc. (Savvis/Qwest), IBM and telx Group, Inc. In 2011, CenturyLink, Inc. acquired Savvis Communications Corporation, or Savvis, and Qwest Communications International, Inc., or Qwest, which are our direct tenants. Savvis and Qwest are now wholly-owned subsidiaries of CenturyLink, Inc. CenturyLink, Inc. (Savvis/Qwest) leased approximately 2.4 million square feet of net rentable space as of December 31, 2013,

 

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representing approximately 7.8% of the total annualized rent generated by our properties. In July 2013, IBM acquired SoftLayer Technologies, Inc., which as of June 20, 2013, represented approximately 4.0% of the total annualized rent generated by our properties. Including space leased by SoftLayer, IBM leased approximately 449,000 square feet of net rentable space as of December 31, 2013, representing approximately 5.5% of the total annualized rent generated by our properties. telx Group, Inc. leased approximately 341,000 square feet of net rentable space as of December 31, 2013, representing approximately 4.3% of the total annualized rent generated by our properties. In addition, 48 of our 131 properties are occupied by single tenants, including properties occupied solely by CenturyLink, Inc. (Savvis/Qwest) and IBM. Many factors, including global economic conditions, may cause our tenants to experience a downturn in their businesses or otherwise experience a lack of liquidity, which may weaken their financial condition and result in their failure to make timely rental payments or their default under their leases. If any tenant defaults or fails to make timely rent payments, we may experience delays in enforcing our rights as landlord and may incur substantial costs in protecting our investment.

Our tenants may choose to develop new data centers or expand their own existing data centers, which could result in the loss of one or more key tenants or reduce demand for our newly developed data centers, which could have a material adverse effect on our revenues and results of operations.

Our tenants may choose to develop new data centers or expand or consolidate into data centers that we do not own in the future. In the event that any of our key tenants were to do so, it could result in a loss of business to us or put pressure on our pricing. If we lose a tenant, we cannot assure you that we would be able to replace that tenant at a competitive rate or at all, which could have a material adverse effect on our revenues and results of operations.

The bankruptcy or insolvency of a major tenant may adversely affect the income produced by our properties.

If any tenant becomes a debtor in a case under the federal Bankruptcy Code, we cannot evict the tenant solely because of the bankruptcy. In addition, the bankruptcy court might authorize the tenant to reject and terminate its lease with us. Our claim against the tenant for unpaid, future rent would be subject to a statutory cap that might be substantially less than the remaining rent actually owed under the lease. In either case, our claim for unpaid rent would likely not be paid in full. As of December 31, 2013, we had no material tenants in bankruptcy.

Our revenue and cash available for distribution could be materially adversely affected if any of our significant tenants were to become bankrupt or insolvent, or suffer a downturn in its business, or fail to renew its lease or renew on terms less favorable to us than its current terms.

Our portfolio of properties depends upon local economic conditions and is geographically concentrated in certain locations.

Our portfolio is located in 33 metropolitan areas. Many of these markets experienced downturns in recent years and are currently experiencing downturns as a result of the global economic crisis or other factors. We depend upon the local economic conditions in these markets, including local real estate conditions, and our operations, revenue and cash available for distribution could be materially adversely affected by local economic conditions in these markets. Our operations may also be affected if too many competing properties are built in any of these markets or supply otherwise increases or exceeds demand. We cannot assure you that these markets will grow or will remain favorable to technology-related real estate.

 

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As of December 31, 2013, our portfolio, including the 12 properties held as investments in unconsolidated joint ventures, was geographically concentrated in the following metropolitan markets.

 

Metropolitan Market

   Percentage of
December 31, 2013
total annualized rent (1)
 

London, England

     12.0

Northern Virginia

     10.3

Dallas

     9.4

Silicon Valley

     9.3

New York Metro

     9.0

Chicago

     7.1

San Francisco

     6.8

Phoenix

     6.4

Boston

     4.3

Los Angeles

     3.5

Seattle

     3.0

Singapore

     2.8

Other

     16.1
  

 

 

 

Total

     100.0
  

 

 

 

 

(1) Annualized rent is monthly contractual rent (defined as cash base rent before abatements) under existing leases as of December 31, 2013, multiplied by 12. The aggregate amount of abatements for the year ended December 31, 2013 was approximately $33.3 million.

In addition, we are currently developing properties in certain of these markets. Any negative changes in real estate, technology or economic conditions in these markets in particular could negatively impact our performance.

Our growth depends upon the successful development of our existing space and developable land and new properties acquired for development and any delays or unexpected costs in such development may delay and harm our growth prospects, future operating results and financial condition.

At December 31, 2013, we had approximately 1.8 million square feet of space under active development and approximately 1.3 million square feet of space held for future development, including one vacant property. We have built and may continue to build out a large portion of this space on a speculative basis at significant cost. Our successful development of these projects is subject to many risks, including those associated with:

 

   

delays in construction;

 

   

budget overruns;

 

   

changes to the plans or specifications;

 

   

construction site accidents and other casualties;

 

   

increased prices for raw materials or building supplies;

 

   

lack of availability and/or increased costs for specialized data center components, including long lead time items such as generators;

 

   

financing availability, including our ability to obtain construction financing and permanent financing;

 

   

increases in interest rates or credit spreads;

 

   

labor availability and costs;

 

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labor disputes and work stoppages with contractors, subcontractors or others that are constructing the project;

 

   

failure of contractors to perform on a timely basis or at all, or other misconduct on the part of contractors;

 

   

timing of the commencement of rental payments;

 

   

access to sufficient power and related costs of providing such power to our tenants;

 

   

environmental issues;

 

   

fire, flooding, earthquakes and other natural disasters;

 

   

geological, construction, excavation and equipment problems; and

 

   

delays or denials of entitlements or permits, including zoning and related permits, or other delays resulting from our dependence on the cooperation of public agencies and utility companies.

In addition, while we intend to develop data center properties primarily in markets we are familiar with, we may in the future develop properties in new geographic regions where we expect the development of property to result in favorable risk-adjusted returns on our investment. We may not possess the same level of familiarity with the development of other property types or other markets, which could adversely affect our ability to develop such properties successfully or at all or to achieve expected performance.

Development activities, regardless of whether they are ultimately successful, also typically require a substantial portion of our management’s time and attention. This may distract our management from focusing on other operational activities of our business. If we are unable to complete development projects successfully, our business may be adversely affected.

We may be unable to identify and complete acquisitions on favorable terms or at all.

We continually evaluate the market of available properties and businesses and may acquire additional technology-related real estate when opportunities exist. Our ability to acquire properties or businesses on favorable terms may be exposed to the following significant risks:

 

   

we may be unable to acquire a desired property or business because of competition from other real estate investors with significant capital, including both publicly traded REITs and institutional investment funds;

 

   

even if we are able to acquire a desired property or business, competition from other potential acquirors may significantly increase the purchase price or result in other less favorable terms;

 

   

even if we enter into agreements for the acquisition of technology-related real estate or businesses, these agreements are subject to customary conditions to closing, including completion of due diligence investigations to our satisfaction; and

 

   

we may be unable to finance acquisitions on favorable terms or at all.

Additionally, we may acquire properties or businesses subject to liabilities and without any recourse, or with only limited recourse, with respect to unknown or contingent liabilities, such as liabilities for clean-up of undisclosed environmental contamination, claims by tenants, vendors or other persons dealing with the former owners of the properties or businesses, tax liabilities, claims for indemnification by general partners, directors, officers and others indemnified by the former owners of the properties or businesses, and other liabilities whether incurred in the ordinary course of business or otherwise. The total amount of costs and expenses that we may incur with respect to liabilities associated with acquired properties or businesses may exceed our expectations, which may adversely affect our business, financial condition and results of operations.

 

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Further, we may enter into transactions with limited representations and warranties or with representations and warranties that do not survive the closing of the transactions, in which event we would have no or limited recourse against the sellers of such properties or businesses. While we usually require the sellers to indemnify us with respect to breaches of representations and warranties that survive, such indemnification is often limited and subject to various materiality thresholds, a significant deductible or an aggregate cap on losses. As a result, there is no guarantee that we will recover any amounts with respect to losses due to breaches by the sellers of their representations and warranties. Finally, indemnification agreements between us and the sellers typically provide that the sellers will retain certain specified liabilities relating to the properties or businesses acquired by us. While the sellers are generally contractually obligated to pay all losses and other expenses relating to such retained liabilities, there can be no guarantee that such arrangements will not require us to incur losses or other expenses as well.

If we cannot complete property or business acquisitions on favorable terms or at all, our financial condition, results of operations, cash flow, cash available for distribution and ability to satisfy our debt service obligations could be materially adversely affected.

We may be unable to successfully integrate and operate acquired properties or businesses.

Even if we are able to make acquisitions on advantageous terms, our ability to successfully operate them may be exposed to the following significant risks:

 

   

we may spend more than budgeted amounts to make necessary improvements or renovations to acquired properties;

 

   

we may be unable to integrate new acquisitions quickly and efficiently, particularly acquisitions of operating businesses or portfolios of properties, into our existing operations, and our results of operations and financial condition could be adversely affected;

 

   

acquired properties may be subject to reassessment, which may result in higher than expected property tax payments; and

 

   

market conditions may result in higher than expected vacancy rates and lower than expected rental rates.

If we cannot operate acquired properties or businesses to meet our financial expectations, our financial condition, results of operations, cash flow, cash available for distribution and ability to satisfy our debt service obligations could be materially adversely affected.

We may be unable to source off-market deal flow in the future.

A component of our growth strategy is to continue to acquire additional technology-related real estate. To date, a substantial portion of our acquisitions were acquired before they were widely marketed by real estate brokers, or “off-market.” Properties that are acquired off-market are typically more attractive to us as a purchaser because of the absence of competitive bidding, which could potentially lead to higher prices. We obtain access to off-market deal flow from numerous sources. If we cannot obtain off-market deal flow in the future, our ability to locate and acquire additional properties at attractive prices could be adversely affected.

We have substantial debt and face risks associated with the use of debt to fund our business activities, including refinancing and interest rate risks.

Our total consolidated indebtedness at December 31, 2013 was approximately $5.0 billion, and we may incur significant additional debt to finance future acquisition and development activities. We have a $2.0 billion global revolving credit facility, which has a borrowing limit that we may increase to up to $2.55 billion, subject to receipt of lender commitments and other conditions precedent. At December 31, 2013, approximately $1.3 billion was available under this facility, net of outstanding letters of credit.

 

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Our substantial indebtedness has important consequences in that it currently requires us to dedicate a significant portion of our cash flow from operations to debt service payments, which reduces the availability of our cash flow to fund working capital, capital expenditures, expansion efforts, distributions and other general corporate purposes. Additionally, it could: make it more difficult for us to satisfy our obligations with respect to our indebtedness; limit our ability in the future to undertake refinancings of our debt or obtain financing for expenditures, acquisitions, development or other general corporate purposes on terms and conditions acceptable to us, if at all; or affect adversely our ability to compete effectively or operate successfully under adverse economic conditions.

In addition, we may violate restrictive covenants or fail to maintain financial ratios specified in our loan documents, which would entitle the lenders to accelerate our debt obligations, and our secured lenders or mortgagees may foreclose on our properties or our interests in the entities that own the properties that secure their loans and receive an assignment of rents and leases. A foreclosure on one or more of our properties could adversely affect our access to capital, financial condition, results of operations, cash flow and cash available for distribution. Further, our default under any one of our loans could result in a cross default on other indebtedness. Furthermore, foreclosures could create taxable income without accompanying cash proceeds, a circumstance which could hinder Digital Realty Trust, Inc.’s ability to meet the REIT distribution requirements imposed by the Code.

Additional risks related to our indebtedness are described below.

We may be unable to refinance our indebtedness at maturity or the refinancing terms may be less favorable than the terms of our original indebtedness. It is likely that we will need to refinance at least a portion of our outstanding debt as it matures. If we are unable to refinance or extend principal payments due at maturity or pay them with proceeds of other capital transactions, then our cash flow may not be sufficient in all years to repay all such maturing debt and to pay distributions. Further, if prevailing interest rates or other factors at the time of refinancing (such as the reluctance of lenders to make commercial real estate loans) result in higher interest rates upon refinancing, then the interest expense relating to that refinanced indebtedness would increase.

Fluctuations in interest rates could materially affect our financial results and may increase the risk our counterparty defaults on our interest rate hedges . Because a significant portion of our debt, including debt incurred under our global revolving credit facility, bears interest at variable rates, increases in interest rates could materially increase our interest expense. If the United States Federal Reserve increases short-term interest rates, this would have a significant upward impact on shorter-term interest rates, including the interest rates that our variable rate debt is based upon. Potential future increases in interest rates and credit spreads may increase our interest expense and therefore negatively affect our financial condition and results of operations, and reduce our access to capital markets. We have entered into interest rate swap agreements for a significant portion of our floating rate debt other than the debt we incur under our global revolving credit facility. Increased interest rates may increase the risk that the counterparties to our swap agreements will default on their obligations, which could further increase our exposure to interest rate fluctuations. Conversely, if interest rates are lower than our swapped fixed rates, we will be required to pay more for our debt than we would had we not entered into the swap agreements.

Adverse changes in our company’s credit ratings could negatively affect our financing activity. The credit ratings of our senior unsecured long-term debt and Digital Realty Trust, Inc.’s preferred stock are based on our company’s operating performance, liquidity and leverage ratios, overall financial position and other factors employed by the credit rating agencies in their rating analyses of our company. Our company’s credit ratings can affect the amount of capital we can access, as well as the terms and pricing of any debt we may incur. We cannot assure you that our company will be able to maintain our current credit ratings, and in the event our current credit ratings are downgraded, we would likely incur higher borrowing costs and may encounter difficulty in obtaining additional financing. Also, a downgrade in our company’s credit ratings may trigger additional payments or other negative consequences under our current and future credit facilities and debt instruments. For example, if the credit ratings of our senior unsecured long-term debt are downgraded to below investment grade levels, we may

 

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not be able to obtain or maintain extensions on certain of our existing debt. Adverse changes in our credit ratings could negatively impact our refinancing and other capital market activities, our ability to manage our debt maturities, our future growth, our financial condition, the market price of Digital Realty Trust, Inc.’s stock, and our development and acquisition activity.

Our global revolving credit facility, term loan facility , Prudential shelf facility, 5.875% notes due 2020, 4.50% notes due 2015, 5.250% notes due 2021, 3.625% notes due 2022 and 4.250% guaranteed notes due 2025 restrict our ability to engage in some business activities . Our global revolving credit facility, term loan facility and Prudential shelf facility contain negative covenants and other financial and operating covenants that, among other things:

 

   

restrict our ability to incur additional indebtedness;

 

   

restrict our ability to make certain investments;

 

   

restrict our ability to merge with another company;

 

   

restrict our ability to create, incur or assume liens; and

 

   

require us to maintain financial coverage ratios, including with respect to unencumbered assets.

In addition, the global revolving credit facility, the term loan facility and the Prudential shelf facility restrict Digital Realty Trust, Inc. from making distributions to its stockholders, or redeeming or otherwise repurchasing shares of its capital stock, after the occurrence and during the continuance of an event of default, except in limited circumstances including as necessary to enable Digital Realty Trust, Inc. to maintain its qualification as a REIT and to avoid the payment of income or excise tax.

In addition, our 5.875% notes due 2020, or the 2020 notes, our 4.50% notes due 2015, or the 2015 notes, our 5.250% notes due 2021, or the 2021 notes, our 3.625% notes due 2022, or the 2022 notes, and the 2025 notes are governed by indentures, which contain various restrictive covenants, including limitations on our ability to incur indebtedness and requirements to maintain a pool of unencumbered assets. These restrictions, and the restrictions in our global revolving credit facility, term loan facility, and Prudential shelf facility, could cause us to default on our 2020 notes, 2015 notes, 2021 notes, 2022 notes, 2025 notes, global revolving credit facility, term loan facility or Prudential shelf facility, as applicable, or negatively affect our operations or our ability to pay dividends to Digital Realty Trust, Inc.’s stockholders or distributions to Digital Realty Trust, L.P.’s unitholders, which could have a material adverse effect on the market value of Digital Realty Trust, Inc.’s common stock and preferred stock.

The exchange and repurchase rights of our exchangeable debentures may be detrimental to Digital Realty Trust, Inc.’s stockholders or Digital Realty Trust, L.P.’s unitholders.  As of December 31, 2013, Digital Realty Trust, L.P. had outstanding $266.4 million aggregate principal amount of 5.50% Exchangeable Senior Debentures due 2029, or the 2029 debentures. The 2029 debentures are exchangeable for Digital Realty Trust, Inc.’s common stock. The exchange rate of the 2029 debentures is subject to adjustment for certain events, including, but not limited to, certain dividends on Digital Realty Trust, Inc.’s common stock in excess of $0.33 per share per quarter, the issuance of certain rights, options or warrants to holders of Digital Realty Trust, Inc.’s common stock, subdivisions or combinations of Digital Realty Trust, Inc.’s common stock, certain distributions of assets, debt securities, capital stock or cash to holders of Digital Realty Trust, Inc.’s common stock and certain tender or exchange offers. The 2029 debentures are redeemable at our option for cash at any time on or after April 18, 2014 and are subject to repurchase for cash at the option of the holder on April 15 in the years 2014, 2019 and 2024, or upon the occurrence of certain events.

If the 2029 debentures are not exchanged, the repurchase rights of holders of the exchangeable debentures may discourage or impede transactions that might otherwise be in the interest of Digital Realty Trust, Inc.’s stockholders or Digital Realty Trust, L.P.’s unitholders. Further, these exchange or repurchase rights might be triggered in situations where we need to conserve our cash reserves, in which event such repurchase might adversely affect us, Digital Realty Trust, Inc.’s stockholders and Digital Realty Trust, L.P.’s unitholders.

 

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Failure to hedge effectively against interest rate changes may adversely affect results of operations. We seek to manage our exposure to interest rate volatility by using interest rate hedging arrangements, such as interest rate cap or swap lock agreements. These agreements involve risks, such as the risk that counterparties may fail to honor their obligations under these arrangements, that these arrangements may not be effective in reducing our exposure to interest rate changes and that a court could rule that such an agreement is not legally enforceable. Our policy is to use derivatives only to hedge interest rate risks related to our borrowings, not for speculative or trading purposes, and to enter into contracts only with major financial institutions based on their credit ratings and other factors. However, we may choose to change this policy in the future. Approximately 76% of our total indebtedness as of December 31, 2013 was subject to fixed interest rates or variable rates subject to interest rate swaps. We do not currently hedge our global revolving credit facility and as our borrowings under our global revolving credit facility increase, so will our percentage of indebtedness not subject to fixed rates and our exposure to interest rates increase. Hedging may reduce the overall returns on our investments. Failure to hedge effectively against interest rate changes may materially adversely affect our results of operations.

Volatility in and regulation of the commercial mortgage-backed securities market has limited and may continue to impact the pricing of secured debt. As a result of the recent crisis in the residential mortgage-backed securities markets, the recent global recession, and concerns over the ability to refinance or repay existing commercial mortgage-backed securities as they come due, liquidity previously provided by the commercial mortgage-backed securities and collateralized debt obligations markets has significantly decreased. In addition, the Dodd-Frank Wall Street Reform and Consumer Protection Act imposes significant new regulations related to the mortgage-backed securities industry and market participants, which has contributed to uncertainty in the market. The volatility in the commercial mortgage-backed securities market could result in the following adverse effects on our incurrence of secured debt, which could have a materially negative impact on our financial condition, results of operations, cash flow and cash available for distribution:

 

   

higher loan spreads;

 

   

tighter loan covenants;

 

   

reduced loan to value ratios and resulting borrower proceeds; and

 

   

higher amortization and reserve requirements.

We have owned certain of our properties for a limited time.

We owned 131 properties at December 31, 2013, including 12 properties held as investments in unconsolidated joint ventures and developable land. All of our properties have been under our management for less than ten years, and we have owned seven of the properties for less than one year at December 31, 2013. The properties may have characteristics or deficiencies unknown to us that could affect their valuation or revenue potential. We cannot assure you that the operating performance of the properties will not decline under our management.

We may have difficulty managing our growth.

We have significantly and rapidly expanded the size of our company. For example, during 2013, we acquired seven properties and we increased the number and size of our development activities. Our growth may significantly strain our management, operational and financial resources and systems. In addition, as a reporting company, we are subject to the reporting requirements of the Exchange Act and the Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act. The requirements of these rules and regulations will increase our accounting, legal and financial compliance costs and may strain our management and financial, legal and operational resources and systems. An inability to manage our growth effectively or the increased strain on our management of our resources and systems could result in deficiencies in our disclosure controls and procedures or our internal control over financial reporting and could negatively impact our cash available for distribution.

 

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Potential losses may not be covered by insurance.

We currently carry comprehensive liability, property, business interruption, including loss of rental income, and other insurance policies to cover insurable risks to our company. We select policy specifications, insured limits and deductibles which we believe to be appropriate and adequate given the relative risk of loss, the cost of the coverage and standard industry practices. Our insurance policies contain industry standard exclusions and we do not carry insurance for generally uninsurable perils such as loss from war or nuclear reaction. Although we purchase earthquake insurance , it is subject to high deductibles and a significant portion of our properties is located in seismically active zones such as California, which represents approximately 20% of our portfolio’s annualized rent as of December 31, 2013. One catastrophic event, for example, in California, could significantly impact multiple properties, the aggregate deductible amounts could be significant and the limits we purchase could prove to be insufficient, which could materially and adversely impact our business, financial condition and results of operations. Furthermore, a catastrophic regional event could also severely impact some of our insurers rendering them insolvent or unable to fully pay on claims despite their current financial strength. In addition, we may discontinue purchasing insurance against earthquake, flood or windstorm or other perils on some or all of our properties in the future if the cost of premiums for any of these policies exceeds, in our judgment, the value of the coverage relative to the risk of loss.

In addition, many of our buildings contain extensive and highly valuable technology-related improvements. Under the terms of our leases, tenants are obligated to maintain adequate insurance coverage applicable to such improvements and under most circumstances use their insurance proceeds to restore such improvements after a casualty event. In the event of a casualty or other loss involving one of our buildings with extensive installed tenant improvements, our tenants may have the right to terminate their leases if we do not rebuild the base building within prescribed times. In such cases, the proceeds from tenants’ insurance will not be available to us to restore the improvements, and our insurance coverage may be insufficient to replicate the technology-related improvements made by such tenants. Furthermore, the terms of our mortgage indebtedness at certain of our properties may require us to pay insurance proceeds over to our lenders under certain circumstances, rather than use the proceeds to repair the property. If we or one or more of our tenants experiences a loss which is uninsured or which exceeds policy limits, we could lose the capital invested in the damaged properties as well as the anticipated future cash flows from those properties. In addition, if the damaged properties are subject to recourse indebtedness, we would continue to be liable for the indebtedness, even if these properties were irreparably damaged.

We face significant competition, which may decrease or prevent increases of the occupancy and rental rates of our properties.

We compete with numerous developers, owners and operators of real estate and datacenters, many of which own properties similar to ours in the same markets in which our properties are located, including DuPont Fabros Technology, Inc., CoreSite Realty Corporation, CyrusOne Inc., QTS Realty Trust, Inc. and various local developers in the U.S., as well as Global Switch Holdings Limited and various regional operators in Europe, Asia and Australia. In addition, we may in the future face competition from new entrants into the datacenter market, including new entrants who may acquire our current competitors. Some of our competitors and potential competitors have significant advantages over us, including greater name recognition, longer operating histories, pre-existing relationships with current or potential customers, significantly greater financial, marketing and other resources and more ready access to capital which allow them to respond more quickly to new or changing opportunities. If our competitors offer space that our tenants or potential tenants perceive to be superior to ours based on numerous factors, including available power, security considerations, location, or connectivity, or if they offer rental rates below current market rates, or below the rental rates we are offering, we may lose tenants or potential tenants or be required to incur costs to improve our properties or reduce our rental rates. In addition, recently many of our competitors have developed and continue to develop additional datacenter space. If the supply of datacenter space continues to increase as a result of these activities or otherwise, rental rates may be reduced or we may face delays in leasing or be unable to lease our vacant space, including space that we develop.

 

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Further, if tenants or potential tenants desire services that we do not offer, we may not be able to lease our space to those tenants. Our financial condition, results of operations, cash flow, cash available for distribution and ability to satisfy our debt service obligations could be materially adversely affected as a result of any or all of these factors.

Joint venture investments could be adversely affected by our lack of sole decision-making authority, our reliance on co-venturers’ financial condition and disputes between us and our co-venturers.

We currently, and may in the future, co-invest with third parties through partnerships, joint ventures or other entities, acquiring non-controlling interests in or sharing responsibility for managing the affairs of a property, partnership, joint venture or other entity. In these events, we are not in a position to exercise sole decision-making authority regarding the property, partnership, joint venture or other entity. Investments in partnerships, joint ventures, or other entities may, under certain circumstances, involve risks not present when a third party is not involved, including the possibility that partners or co-venturers might become bankrupt or fail to fund their share of required capital contributions. Partners or co-venturers may have economic, tax or other business interests or goals which are inconsistent with our business interests or goals, and may be in a position to take actions contrary to our policies or objectives. Our joint venture partners may take actions that are not within our control, which would require us to dispose of the joint venture asset or transfer it to a taxable REIT subsidiary in order for Digital Realty Trust, Inc. to maintain its status as a REIT. Such investments may also lead to impasses, for example, as to whether to sell a property, because neither we nor the partner or co-venturer would have full control over the partnership or joint venture. Disputes between us and partners or co-venturers may result in litigation or arbitration that would increase our expenses and prevent our officers and/or directors from focusing their time and effort on our day-to-day business. Consequently, actions by or disputes with partners or co-venturers may subject properties owned by the partnership or joint venture to additional risk. In addition, we may in certain circumstances be liable for the actions of our third-party partners or co-venturers. Each of these factors may result in returns on these investments being less than we expect or in losses and our financial and operating results may be adversely affected.

Our success depends on key personnel whose continued service is not guaranteed.

We depend on the efforts of key personnel of our company, particularly Michael Foust, Digital Realty Trust, Inc.’s Chief Executive Officer, A. William Stein, Digital Realty Trust, Inc.’s Chief Financial Officer and Chief Investment Officer and Scott Peterson, Digital Realty Trust, Inc.’s Chief Acquisitions Officer. They are important to our success for many reasons, including that each has a national or regional reputation in our industry and the investment community that attracts investors and business and investment opportunities and assists us in negotiations with investors, lenders, existing and potential tenants and industry personnel. If we lost their services, our business and investment opportunities and our relationships with lenders and other capital markets participants, existing and prospective tenants and industry personnel could suffer. Many of our company’s other senior employees also have strong technology, finance and real estate industry reputations. As a result, we have greater access to potential acquisitions, financing, leasing and other opportunities, and are better able to negotiate with tenants. As the number of our competitors increases, it becomes more likely that a competitor would attempt to hire certain of these individuals away from our company. The loss of any of these key personnel would result in the loss of these and other benefits and could materially and adversely affect our results of operations.

Our properties may not be suitable for lease to datacenter or traditional technology office tenants without significant expenditures or renovations.

Because many of our properties contain tenant improvements installed at our tenants’ expense, they may be better suited for a specific corporate enterprise datacenter user or technology industry tenant and could require significant modification in order for us to re-lease vacant space to another corporate enterprise datacenter user or technology industry tenant. The tenant improvements may also become outdated or obsolete as the result of

 

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technological change, the passage of time or other factors. In addition, our development space will generally require substantial improvement to be suitable for datacenter use. For the same reason, our properties also may not be suitable for lease to traditional office tenants without significant expenditures or renovations. As a result, we may be required to invest significant amounts or offer significant discounts to tenants in order to lease or re-lease that space, either of which could adversely affect our financial and operating results.

Our data center infrastructure may become obsolete, and we may not be able to upgrade our power and cooling systems cost-effectively, or at all.

Our data center infrastructure may become obsolete due to the development of new systems to deliver power to or eliminate heat in our facilities. Additionally, our data center infrastructure could become obsolete as a result of the development of new server technology that does not require the levels of critical load and heat removal that our facilities are designed to provide and could be run less expensively on a different platform. In addition, our power and cooling systems are difficult and expensive to upgrade. Accordingly, we may not be able to efficiently upgrade or change these systems to meet new demands without incurring significant costs that we may not be able to pass on to our customers which could adversely impact our business, financial condition and results of operations.

Ownership of properties located outside of the United States subjects us to foreign currency and related risks which may adversely impact our ability to make distributions.

We owned 29 properties located outside of the United States at December 31, 2013. In addition, we are currently considering, and will in the future consider, additional international acquisitions.

The ownership of properties located outside of the United States subjects us to risk from fluctuations in exchange rates between foreign currencies and the U.S. dollar. We expect that our principal foreign currency exposure will be to the British Pound and the Euro. Changes in the relation of these currencies to the U.S. dollar will affect our revenues and operating margins, may materially adversely impact our financial condition, results of operations, cash flow, cash available for distribution and ability to satisfy our debt obligations.

We may attempt to mitigate some or all of the risk of currency fluctuation by financing our properties in the local currency denominations, although we cannot assure you that we will be able to do so or that this will be effective. We may also engage in direct hedging activities to mitigate the risks of exchange rate fluctuations in a manner consistent with our qualifications as a REIT, although we cannot assure you that we will be able to do so or that this will be effective.

Our international activities are subject to special risks different than those faced by us in the United States and we may not be able to effectively manage our international business.

We have acquired and developed, and may continue to acquire and develop, properties outside the United States. Our foreign operations involve risks not generally associated with investments in the United States, including:

 

   

our limited knowledge of and relationships with sellers, tenants, contractors, suppliers or other parties in these markets;

 

   

complexity and costs associated with managing international development and operations;

 

   

difficulty in hiring qualified management, sales and construction personnel and service providers in a timely fashion;

 

   

differing employment practices and labor issues;

 

   

multiple, conflicting and changing legal, regulatory, entitlement and permitting, and tax and treaty environments;

 

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exposure to increased taxation, confiscation or expropriation;

 

   

currency transfer restrictions and limitations on our ability to distribute cash earned in foreign jurisdictions to the United States;

 

   

difficulty in enforcing agreements in non-U.S. jurisdictions, including those entered into in connection with our acquisitions or in the event of a default by one or more of our tenants, suppliers or contractors;

 

   

local business and cultural factors; and

 

   

political and economic instability, including sovereign credit risk, in certain geographic regions.

Our inability to overcome these risks could adversely affect our foreign operations and could harm our business and results of operations.

We face risks with our international acquisitions associated with investing in unfamiliar markets.

We have acquired and may continue to acquire properties on a strategic and selective basis in international markets that are new to us. When we acquire properties located in these markets, we may face risks associated with a lack of market knowledge or understanding of the local economy and culture, forging new business relationships in the area and unfamiliarity with local government and permitting procedures. In addition, due diligence, transaction and structuring costs may be higher than those we may face in the United States. We work to mitigate such risks through extensive diligence and research and associations with experienced partners; however, we cannot assure you that all such risks will be eliminated.

Future consolidation in the technology industry could materially adversely affect our revenues by eliminating some of our potential tenants and could make us more dependent on a more limited number of tenants.

Mergers or consolidations of technology companies in the future could reduce the number of our tenants and potential tenants. If our tenants merge with or are acquired by other entities that are not our tenants, they may discontinue or reduce the use of our data centers in the future. Any of these developments could have a material adverse effect on our revenues and results of operations.

We depend on third parties to provide Internet connectivity to the tenants in our data centers and any delays or disruptions in connectivity may materially adversely affect our operating results and cash flow.

We are not a telecommunications carrier. Although our tenants generally are responsible for providing their own network connectivity, we still depend upon the presence of telecommunications carriers’ fiber networks serving the locations of our data centers in order to attract and retain tenants. We believe that the availability of carrier capacity will directly affect our ability to achieve our projected results. Any carrier may elect not to offer its services within our data centers. Any carrier that has decided to provide Internet connectivity to our data centers may not continue to do so for any period of time. Further, some carriers are experiencing business difficulties or have announced consolidations. As a result, some carriers may be forced to downsize or terminate connectivity within our data centers, which could have an adverse effect on the business of our tenants and, in turn, our own operating results.

Our new data centers require construction and operation of a sophisticated redundant fiber network. The construction required to connect multiple carrier facilities to our data centers is complex and involves factors outside of our control, including regulatory requirements and the availability of construction resources. We have started to obtain the right to use network resources owned by other companies, including rights to use dark fiber, in order to attract telecommunications carriers and customers to our portfolio. If the establishment of highly diverse Internet connectivity to our data centers does not occur, is materially delayed or is discontinued, or is subject to failure, our operating results and cash flow may be materially adversely affected. Additionally, any hardware or fiber failures on this network may result in significant loss of connectivity to our data centers. This

 

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could negatively affect our ability to attract new tenants or retain existing tenants, which could have an adverse effect on our business, financial condition and results of operations.

Any failure of our physical infrastructure or services could lead to significant costs and disruptions that could harm our business reputation and could adversely affect our earnings and financial condition.

Our business depends on providing customers with highly reliable service, including with respect to power supply, security and maintenance of environmental conditions. We may fail to provide such service as a result of numerous factors, including mechanical failure, power outage, human error, physical or electronic security breaches, war, terrorism and related conflicts or similar events worldwide, fire, earthquake, hurricane, flood and other natural disasters, sabotage and vandalism.

Problems at one or more of our data centers, whether or not within our control, could result in service interruptions or equipment damage. Substantially all of our customer leases include terms requiring us to meet certain service level commitments to our customers. Any failure to meet these commitments or any equipment damage in our data centers, including as a result of mechanical failure, power outage, human error or other reasons, could subject us to liability under our lease terms, including service level credits against customer rent payments, or, in certain cases of repeated failures, the right by the customer to terminate the lease. Service interruptions, equipment failures or security breaches may also expose us to additional legal liability and damage our brand and reputation, and could cause our customers to terminate or not renew their leases. In addition, we may be unable to attract new customers if we have a reputation for service disruptions, equipment failures or physical or electronic security breaches in our data centers. Any such failures could adversely affect our business, financial condition and results of operations.

We are dependent upon third-party suppliers for power and certain other services, and we are vulnerable to service failures of our third-party suppliers and to price increases by such suppliers.

We rely on third parties to provide power to our data centers, and we cannot ensure that these third parties will deliver such power in adequate quantities or on a consistent basis. If the amount of power available to us is inadequate to support our customer requirements, we may be unable to satisfy our obligations to our customers or grow our business. In addition, our data centers may be susceptible to power shortages and planned or unplanned power outages caused by these shortages. Power outages may last beyond our backup and alternative power arrangements, which would harm our customers and our business. Any loss of services or equipment damage could adversely affect both our ability to generate revenues and our operating results, and harm our reputation.

In addition, we may be subject to risks and unanticipated costs associated with obtaining power from various utility companies. Utilities that serve our data centers may be dependent on, and sensitive to price increases for, a particular type of fuel, such as coal, oil or natural gas. In addition, the price of these fuels and the electricity generated from them could increase as a result of proposed legislative measures related to climate change or efforts to regulate carbon emissions. Increases in the cost of power at any of our data centers would put those locations at a competitive disadvantage relative to data centers served by utilities that can provide less expensive power.

Even if we have additional space available for lease at any one of our data centers, our ability to lease this space to existing or new customers could be constrained by our ability to provide sufficient electrical power.

As current and future customers increase their power footprint in our facilities over time, the corresponding reduction in available power could limit our ability to increase occupancy rates or network density within our existing facilities. Furthermore, at certain of our data centers, our aggregate maximum contractual obligation to provide power and cooling to our customers may exceed the physical capacity at such data centers if customers were to quickly increase their demand for power and cooling. If we are not able to increase the available power and/or cooling or move the customer to another location within our data centers with sufficient power and

 

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cooling to meet such demand, we could lose the customer as well as be exposed to liability under our leases. In addition, our power and cooling systems are difficult and expensive to upgrade. Accordingly, we may not be able to efficiently upgrade or change these systems to meet new demands without incurring significant costs that we may not be able to pass on to our customers. Any such material loss of customers, liability or additional costs could adversely affect our business, financial condition and results of operations.

We may be vulnerable to breaches of our physical security, or to unauthorized access to or disruption of our customers’ networks or our information technology systems, any of which could disrupt our operations and have a material adverse effect on our revenues and results of operations.

We use a variety of procedures and systems to maintain the physical security of our facilities. Any failure of these systems, whether caused by human error, third party attack, employee malfeasance, system error, utility failure or some other cause could result in, among other things, a breach of our customers’ networks, a breach of our obligations under our customer leases, the misappropriation of our or our customers’ or their customers’ proprietary information, or interruptions or malfunctions in our or our customers’ operations. We rely upon our information technology systems to manage customer relationships, maintain access lists and to maintain our financial and other business information. Unauthorized access to or disruption of these systems could result in, among other things, unauthorized access to our facilities, delays or interruptions to our ability to meet customer needs, breach of our legal or contractual obligations or inability to access or rely upon critical business records. We may be required to expend significant financial resources to protect against or to alleviate breaches of physical security, network breaches as well as unauthorized access to or disruption of our customers’ networks or our information technology systems. We may not be able to implement physical or technical security measures in a timely manner or, if and when implemented, these measures could be circumvented. Any breaches that may occur could expose us to increased risk of lawsuits, loss of existing or potential customers, harm to our reputation and increases in our security costs, which could have a material adverse effect on our revenues and results of operations.

Illiquidity of real estate investments could significantly impede our ability to respond to adverse changes in the performance of our properties and harm our financial condition.

Because real estate investments are relatively illiquid and because there may be even fewer buyers for our specialized real estate, our ability to promptly sell properties in our portfolio in response to adverse changes in their performance may be limited, which may harm our financial condition. Further, Digital Realty Trust, Inc. is subject to provisions in the Code that limit a REIT’s ability to dispose of properties, which limitations are not applicable to other types of real estate companies. While Digital Realty Trust, Inc. has exclusive authority under Digital Realty Trust, L.P.’s limited partnership agreement to determine whether, when, and on what terms to sell a property, any such decision would require the approval of Digital Realty Trust, Inc.’s board of directors. See “Risks Related to Our Organizational Structure—Tax consequences upon sale or refinancing.” These limitations may affect our ability to sell properties. This lack of liquidity and the Code restrictions may limit our ability to vary our portfolio promptly in response to changes in economic or other conditions and, as a result, could adversely affect our financial condition, results of operations, cash flow, cash available for distribution and ability to access capital necessary to meet our debt payments and other obligations.

We could incur significant costs related to government regulation and private litigation over environmental matters.

Under various laws relating to the protection of the environment, a current or previous owner or operator of real estate may be liable for contamination resulting from the presence or discharge of hazardous or toxic substances at that property, and may be required to investigate and clean up such contamination at or emanating from that property. Such laws often impose liability without regard to whether the owner or operator knew of, or was responsible for, the presence of the contaminants, and the liability may be joint and several. Previous owners used some of our properties for industrial and retail purposes, so those properties may contain some level of environmental contamination. Fuel storage tanks are present at most of our properties, and if releases were to occur, we may be liable for the costs of cleaning any resulting contamination. The presence of contamination or

 

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the failure to remediate contamination at our properties may expose us to third-party liability or materially adversely affect our ability to sell, lease or develop the real estate or to borrow using the real estate as collateral.

Some of the properties may contain asbestos-containing building materials. Environmental laws require that asbestos-containing building materials be properly managed and maintained, and may impose fines and penalties on building owners or operators for failure to comply with these requirements. These laws may also allow third parties to seek recovery from owners or operators for personal injury associated with exposure to asbestos-containing building materials.

In addition, some of our tenants, particularly those in the biotechnology and life sciences industry and those in the technology manufacturing industry, routinely handle hazardous substances and wastes as part of their operations at our properties. Environmental laws and regulations subject our tenants, and potentially us, to liability resulting from these activities or from previous industrial or retail uses of those properties. Environmental liabilities could also affect a tenant’s ability to make rental payments to us.

Our properties and their uses often require permits from various government agencies, including permits related to zoning and land use, such as permits to operate data center facilities. Certain permits from state or local environmental regulatory agencies, including regulators of air quality, are usually required to install and operate diesel-powered generators, which provide emergency back-up power at most of our facilities. These permits often set emissions limits for certain air pollutants, including oxides of nitrogen. In addition, various federal, state, and local environmental, health and safety requirements, such as fire requirements and treated and storm water discharge requirements, apply to some of our properties. Changes to applicable regulations, such as air quality regulations, or the permit requirements for equipment at our facilities, could hinder or prevent our construction or operation of data center facilities.

The environmental laws and regulations to which our properties are subject may change in the future, and new laws and regulations may be created. Such laws include those directly regulating our climate change impacts and those which regulate the climate change impacts of companies with which we do business, such as utilities providing our facilities with electricity. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Factors Which May Influence Future Results of Operations—Climate change legislation.” We do not know if or how the requirements will change, but changes may require that we make significant unanticipated expenditures, and such expenditures may materially adversely impact our financial condition, cash flow, results, cash available for distributions, common stock’s per share trading price, our competitive position and ability to satisfy our debt service obligations.

Existing conditions at some of our properties may expose us to liability related to environmental matters.

Independent environmental consultants have conducted Phase I or similar environmental site assessments on all of the properties in our portfolio. Site assessments are intended to discover and evaluate information regarding the environmental condition of the surveyed property and surrounding properties. These assessments do not generally include soil samplings, subsurface investigations or an asbestos survey and the assessments may fail to reveal all environmental conditions, liabilities or compliance concerns. In addition, material environmental conditions, liabilities or compliance concerns may have arisen after these reviews were completed or may arise in the future. Future laws, ordinances or regulations may impose additional material environmental liability.

We cannot assure you that costs of future environmental compliance will not affect our ability to pay dividends to Digital Realty Trust, Inc.’s stockholders and distributions to Digital Realty Trust, L.P.’s unitholders or that such costs or other remedial measures will not have a material adverse effect on our business, assets or results of operations.

 

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Our properties may contain or develop harmful mold or suffer from other air quality issues, which could lead to liability for adverse health effects and costs to remedy the problem.

When excessive moisture accumulates in buildings or on building materials, mold may grow, particularly if the moisture problem remains undiscovered or is not addressed over a period of time. Some molds may produce airborne toxins or irritants. Indoor air quality issues can also stem from inadequate ventilation, chemical contamination from indoor or outdoor sources and other biological contaminants such as pollen, viruses and bacteria. Indoor exposure to airborne toxins or irritants above certain levels can be alleged to cause a variety of adverse health effects and symptoms, including allergic or other reactions. As a result, the presence of significant mold or other airborne contaminants at any of our properties could require us to undertake a costly remediation program to contain or remove the mold or other airborne contaminants from the affected property or increase indoor ventilation. In addition, the presence of significant mold or other airborne contaminants could expose us to liability from our tenants, employees of our tenants and others if property damage or health concerns arise.

We may incur significant costs complying with the Americans with Disabilities Act and similar laws.

Under the Americans with Disabilities Act of 1990, or the ADA, all public accommodations must meet federal requirements related to access and use by disabled persons. We have not conducted an audit or investigation of all of our properties to determine our compliance with the ADA. If one or more of the properties in our portfolio does not comply with the ADA, then we would be required to incur additional costs to bring the property into compliance. Additional federal, state and local laws also may require modifications to our properties, or restrict our ability to renovate our properties. We cannot predict the ultimate cost of compliance with the ADA or other legislation. If we incur substantial costs to comply with the ADA and any other similar legislation, our financial condition, results of operations, cash flow, cash available for distribution and ability to satisfy our debt service obligations could be materially adversely affected.

We may incur significant costs complying with other regulations.

The properties in our portfolio are subject to various federal, state and local regulations, such as state and local fire and life safety regulations. If we fail to comply with these various regulations, we may have to pay fines or private damage awards. In addition, we do not know whether existing regulations will change or whether future regulations will require us to make significant unanticipated expenditures that will materially adversely impact our financial condition, results of operations, cash flow, cash available for distribution and ability to satisfy our debt service obligations.

The conversion rights of Digital Realty Trust, Inc.’s preferred stock may be detrimental to holders of Digital Realty Trust, Inc.’s common stock.

Digital Realty Trust, Inc. currently has 11,500,000 shares of 7.000% series E cumulative redeemable preferred stock outstanding, 7,300,000 shares of 6.625% series F cumulative redeemable preferred stock outstanding and 10,000,000 shares of 5.875% series G cumulative redeemable preferred stock outstanding, which may be converted into Digital Realty Trust, Inc. common stock upon the occurrence of limited specified change in control transactions. The conversion of series E preferred stock, series F preferred stock or series G preferred stock for Digital Realty Trust, Inc. common stock would dilute stockholder ownership in Digital Realty Trust, Inc. and unitholder ownership in Digital Realty Trust, L.P., and could adversely affect the market price of Digital Realty Trust, Inc. common stock and could impair our ability to raise capital through the sale of additional equity securities.

Our Digital Design Services ® business is subject to risks particular to third-party construction projects.

Our Digital Design Services ® business is new and we only have limited experience in providing design and construction services to third parties. By providing these design and construction services to third parties, we

 

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become subject to a variety of risks unique to these activities. If construction costs of a project exceed original estimates, such costs may have to be absorbed by us, which would make the project less profitable than originally estimated, or possibly not profitable at all. A construction project may be delayed due to government or regulatory approvals, supply shortages, or other events and circumstances beyond our control, or the time required to complete a construction project may be greater than originally anticipated. In addition, we may be liable for any injuries or damage that arise from worksite accidents, or from the design or construction of the datacenters we build. If any such excess costs, project delays or liabilities were to be material, such events may adversely affect our financial condition, results of operations and cash available for distribution.

Our business could be adversely impacted if there are deficiencies in our disclosure controls and procedures or internal control over financial reporting.

The design and effectiveness of our disclosure controls and procedures and internal control over financial reporting may not prevent all errors, misstatements or misrepresentations. While management will continue to review the effectiveness of our disclosure controls and procedures and internal control over financial reporting, there can be no guarantee that our internal control over financial reporting will be effective in accomplishing all control objectives all of the time. Furthermore, our disclosure controls and procedures and internal control over financial reporting with respect to entities that we do not control or manage may be substantially more limited than those we maintain with respect to the subsidiaries that we have controlled or managed over the course of time. Deficiencies, including any material weakness, in our internal control over financial reporting which may occur in the future could result in misstatements of our results of operations, restatements of our financial statements, a decline in Digital Realty Trust, Inc.’s stock price, or otherwise materially adversely affect our business, reputation, results of operations, financial condition or liquidity.

Risks Related to Our Organizational Structure

Digital Realty Trust, Inc.’s duty to its stockholders may conflict with the interests of Digital Realty Trust, L.P.’s unitholders.

Conflicts of interest may exist or could arise in the future as a result of the relationships between Digital Realty Trust, Inc. and its affiliates, on the one hand, and our operating partnership or any partner thereof, on the other. Digital Realty Trust, Inc.’s directors and officers have duties to Digital Realty Trust, Inc. and its stockholders under Maryland law in connection with their management of our company. At the same time, Digital Realty Trust, Inc., as general partner, has fiduciary duties under Maryland law to our operating partnership and to the limited partners in connection with the management of our operating partnership. Digital Realty Trust, Inc.’s duties as general partner to our operating partnership and its partners may come into conflict with the duties of Digital Realty Trust, Inc.’s directors and officers to Digital Realty Trust, Inc. and its stockholders. Under Maryland law, a general partner of a Maryland limited partnership owes its limited partners the duties of loyalty and care, which must be discharged consistently with the obligation of good faith and fair dealing, unless the partnership agreement provides otherwise. The partnership agreement of our operating partnership provides that for so long as Digital Realty Trust, Inc. owns a controlling interest in our operating partnership, any conflict that cannot be resolved in a manner not adverse to either Digital Realty Trust, Inc.’s stockholders or the limited partners will be resolved in favor of Digital Realty Trust, Inc.’s stockholders.

The provisions of Maryland law that allow the fiduciary duties of a general partner to be modified by a partnership agreement have not been tested in a court of law, and we have not obtained an opinion of counsel covering the provisions set forth in the partnership agreement that purport to waive or restrict Digital Realty Trust, Inc.’s fiduciary duties.

 

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Digital Realty Trust, Inc.’s stockholders and Digital Realty Trust, L.P.’s unitholders are also subject to the following additional conflict of interest:

Tax consequences upon sale or refinancing. Sales of properties and repayment of certain indebtedness will affect holders of common units in our operating partnership and Digital Realty Trust, Inc.’s stockholders differently. Consequently, these holders of common units in our operating partnership may have different objectives regarding the appropriate pricing and timing of any such sale or repayment of debt. While Digital Realty Trust, Inc. has exclusive authority under the limited partnership agreement of our operating partnership to determine when to refinance or repay debt or whether, when, and on what terms to sell a property, any such decision would require the approval of Digital Realty Trust, Inc.’s board of directors. Certain of Digital Realty Trust, Inc.’s directors and executive officers could exercise their influence in a manner inconsistent with the interests of some, or a majority, of Digital Realty Trust, L.P.’s unitholders, including in a manner which could prevent completion of a sale of a property or the repayment of indebtedness.

Digital Realty Trust, Inc.’s charter, Digital Realty Trust, L.P.’s partnership agreement and Maryland law contain provisions that may delay, defer or prevent a change of control transaction.

Digital Realty Trust, Inc.’s charter and the articles supplementary with respect to the preferred stock contain 9.8% ownership limits. Digital Realty Trust, Inc.’s charter, subject to certain exceptions, authorizes the company’s directors to take such actions as are necessary and desirable to preserve the company’s qualification as a REIT and to limit any person to actual or constructive ownership of no more than 9.8% (by value or by number of shares, whichever is more restrictive) of the outstanding shares of the company’s common stock, 9.8% (by value or by number of shares, whichever is more restrictive) of the outstanding shares of any series of preferred stock and 9.8% of the value of the company’s outstanding capital stock. Digital Realty Trust, Inc.’s board of directors, in its sole discretion, may exempt (prospectively or retroactively) a proposed transferee from the ownership limit. However, Digital Realty Trust, Inc.’s board of directors may not grant an exemption from the ownership limit to any proposed transferee whose direct or indirect ownership of more than 9.8% of the outstanding shares of the company’s common stock, more than 9.8% of the outstanding shares of any series of preferred stock or more than 9.8% of the value of the company’s outstanding capital stock could jeopardize the company’s status as a REIT. These restrictions on transferability and ownership will not apply if Digital Realty Trust, Inc.’s board of directors determines that it is no longer in the company’s best interests to attempt to qualify, or to continue to qualify, as a REIT or that compliance is no longer required for REIT qualification. The ownership limit may delay, defer or prevent a transaction or a change of control that might be in the best interest of Digital Realty Trust, Inc.’s stockholders and Digital Realty Trust, L.P.’s unitholders.

Digital Realty Trust, L.P.’s partnership agreement contains provisions that may delay, defer or prevent a change of control transaction. Digital Realty Trust, L.P.’s partnership agreement provides that Digital Realty Trust, Inc. may not engage in any merger, consolidation or other combination with or into another person, any sale of all or substantially all of its assets or any reclassification, recapitalization or change of its outstanding equity interests unless the transaction is approved by the holders of common units and long term incentive units representing at least 35% of the aggregate percentage interests of all holders of common units and long-term incentive units and either:

 

   

all limited partners will receive, or have the right to elect to receive, for each common unit an amount of cash, securities or other property equal to the product of the number of shares of Digital Realty Trust, Inc. common stock into which a common unit is then exchangeable and the greatest amount of cash, securities or other property paid in consideration of each share of Digital Realty Trust, Inc. common stock in connection with the transaction (provided that, if, in connection with the transaction, a purchase, tender or exchange offer is made to and accepted by the holders of more than 50% of the shares of Digital Realty Trust, Inc. common stock, each holder of common units will receive, or have the right to elect to receive, the greatest amount of cash, securities or other property which such holder would have received if it exercised its right to redemption and received shares of Digital Realty Trust, Inc. common stock in exchange for its common units immediately prior to the expiration of such

 

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purchase, tender or exchange offer and thereupon accepted such purchase, tender or exchange offer and the transaction was then consummated); or

 

   

the following conditions are met:

 

   

substantially all of the assets directly or indirectly owned by the surviving entity in the transaction are held directly or indirectly by Digital Realty Trust, L.P. or another limited partnership or limited liability company which is the survivor of a merger, consolidation or combination of assets with Digital Realty Trust, L.P., or the surviving partnership;

 

   

the holders of common units and long-term incentive units own a percentage interest of the surviving partnership based on the relative fair market value of Digital Realty Trust, L.P.’s net assets and the other net assets of the surviving partnership immediately prior to the consummation of such transaction;

 

   

the rights, preferences and privileges of the holders of interests in the surviving partnership are at least as favorable as those in effect immediately prior to the consummation of such transaction and as those applicable to any other limited partners or non-managing members of the surviving partnership; and

 

   

the rights of the limited partners or non-managing members of the surviving partnership include at least one of the following: (i) the right to redeem their interests in the surviving partnership for the consideration available to such persons pursuant to Digital Realty Trust, L.P.’s partnership agreement; or (ii) the right to redeem their interests for cash on terms equivalent to those in effect with respect to their common units immediately prior to the consummation of such transaction (or, if the ultimate controlling person of the surviving partnership has publicly traded common equity securities, for such common equity securities, with an exchange ratio based on the determination of relative fair market value of such securities and the shares of Digital Realty Trust, Inc. common stock).

These provisions may discourage others from trying to acquire control of Digital Realty Trust, Inc. and may delay, defer or prevent a change of control transaction that might be beneficial to Digital Realty Trust, Inc.’s stockholders and Digital Realty Trust, L.P.’s unitholders.

The change of control conversion features of Digital Realty Trust, Inc.’s preferred stock may make it more difficult for a party to take over our company or discourage a party from taking over our company.

Upon the occurrence of specified change of control transactions, holders of our series E preferred stock, series F preferred stock and series G preferred stock will have the right (unless, prior to the change of control conversion date, we have provided or provide notice of our election to redeem such preferred stock) to convert some or all of their series E or series F preferred stock, as applicable, into shares of our common stock (or equivalent value of alternative consideration), subject to caps set forth in the articles supplementary governing the applicable series of preferred stock. The change of control conversion features of the series E preferred stock, series F preferred stock and series G preferred stock may have the effect of discouraging a third party from making an acquisition proposal for our company or of delaying, deferring or preventing certain change of control transactions of our company under circumstances that otherwise could provide the holders of our common stock, series E preferred stock, series F preferred stock and series G preferred stock with the opportunity to realize a premium over the then-current market price or that stockholders may otherwise believe is in their best interests.

Digital Realty Trust, Inc. could increase or decrease the number of authorized shares of stock and issue stock without stockholder approval. Digital Realty Trust, Inc.’s charter authorizes the company’s board of directors, without stockholder approval, to amend the charter from time to time to increase or decrease the aggregate number of authorized shares of stock or the number of authorized shares of stock of any class or series, to issue authorized but unissued shares of the company’s common stock or preferred stock into other classes or series of stock and, subject to the voting rights of holders of preferred stock, to classify or reclassify any unissued shares of the company’s common stock or preferred stock and to set the preferences, rights and other terms of such classified

 

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or reclassified shares. Although Digital Realty Trust, Inc.’s board of directors has no such intention at the present time, it could establish an additional class or series of preferred stock that could, depending on the terms of such class or series, delay, defer or prevent a transaction or a change of control that might be in the best interest of Digital Realty Trust, Inc.’s stockholders and Digital Realty Trust, L.P.’s unitholders.

Certain provisions of Maryland law could inhibit changes in control. Certain provisions of the Maryland General Corporation Law, or MGCL, may have the effect of impeding a third party from making a proposal to acquire Digital Realty Trust, Inc. or of impeding a change of control under circumstances that otherwise could be in the best interests of Digital Realty Trust, Inc.’s stockholders and Digital Realty Trust, L.P.’s unitholders, including:

 

   

“business combination” provisions that, subject to limitations, prohibit certain business combinations between Digital Realty Trust, Inc. and an “interested stockholder” (defined generally as any person who beneficially owns 10% or more of the voting power of the company’s outstanding shares of voting stock or an affiliate or associate of the company who, at any time within the two-year period prior to the date in question, was the beneficial owner of 10% or more of the voting power of the company’s then outstanding shares of stock) or an affiliate thereof for five years after the most recent date on which the stockholder becomes an interested stockholder, and thereafter imposes special appraisal rights and supermajority voting requirements on these combinations; and

 

   

“control share” provisions that provide that “control shares” of Digital Realty Trust, Inc. (defined as shares which, when aggregated with other shares controlled by the stockholder (except solely by virtue of a revocable proxy), entitle the stockholder to exercise one of three increasing ranges of voting power in electing directors) acquired in a “control share acquisition” (defined as the direct or indirect acquisition of ownership or control of issued and outstanding “control shares”) have no voting rights except to the extent approved by the company’s stockholders by the affirmative vote of at least two-thirds of all the votes entitled to be cast on the matter, excluding all interested shares.

Digital Realty Trust, Inc. has opted out of these provisions of the MGCL, in the case of the business combination provisions of the MGCL by resolution of its board of directors, and in the case of the control share provisions of the MGCL pursuant to a provision in its bylaws. However, Digital Realty Trust, Inc.’s board of directors may by resolution elect to opt in to the business combination provisions of the MGCL and the company may, by amendment to its bylaws, opt in to the control share provisions of the MGCL in the future.

The provisions of Digital Realty Trust, Inc.’s charter on removal of directors and the advance notice provisions of Digital Realty Trust, Inc.’s bylaws could delay, defer or prevent a transaction or a change of control of the company that might be in the best interest of Digital Realty Trust, Inc.’s stockholders and Digital Realty Trust, L.P.’s unitholders. Likewise, if Digital Realty Trust, Inc.’s board of directors were to opt in to the business combination provisions of the MGCL or the provisions of Title 3, Subtitle 8 of the MGCL not currently applicable to the company, or if the provision in the Digital Realty Trust, Inc.’s bylaws opting out of the control share acquisition provisions of the MGCL were rescinded, these provisions of the MGCL could have similar anti-takeover effects.

Digital Realty Trust, Inc.’s board of directors may change our investment and financing policies without stockholder approval or approval of Digital Realty Trust, L.P.’s other partners and we may become more highly leveraged, which may increase our risk of default under our debt obligations.

Digital Realty Trust, Inc.’s board of directors adopted a policy limiting our indebtedness to 60% of our total enterprise value. Our total enterprise value is defined as the sum of the market value of Digital Realty Trust, Inc.’s outstanding common stock (which may decrease, thereby increasing our debt to total capitalization ratio), excluding options issued under our incentive award plan, plus the aggregate value of Digital Realty Trust, L.P. units not held by Digital Realty Trust, Inc. (with the per unit value equal to the market value of one share of Digital Realty Trust, Inc. common stock and excluding long-term incentive units and Class C units), plus the liquidation preference of Digital Realty Trust, Inc.’s outstanding preferred stock, plus the book value of our total

 

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consolidated indebtedness. However, the organizational documents of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. do not limit the amount or percentage of indebtedness, funded or otherwise, that we may incur. Digital Realty Trust, Inc.’s board of directors may alter or eliminate our current policy on borrowing at any time without stockholder or unitholder approval. If this policy changed, we could become more highly leveraged which could result in an increase in our debt service and which could materially adversely affect our cash flow and our ability to pay dividends to Digital Realty Trust, Inc.’s stockholders or distributions to Digital Realty Trust, L.P.’s unitholders. Higher leverage also increases the risk of default on our obligations.

Digital Realty Trust, Inc.’s rights and the rights of its stockholders to take action against its directors and officers are limited.

Maryland law provides that Digital Realty Trust, Inc.’s directors have no liability in their capacities as directors if they perform their duties in good faith, in a manner they reasonably believe to be in the company’s best interests and with the care that an ordinarily prudent person in a like position would use under similar circumstances. As permitted by the MGCL, Digital Realty Trust, Inc.’s charter limits the liability of the company’s directors and officers to the company and its stockholders for money damages, except for liability resulting from:

 

   

actual receipt of an improper benefit or profit in money, property or services; or

 

   

a final judgment based upon a finding of active and deliberate dishonesty by the director or officer that was material to the cause of action adjudicated.

In addition, Digital Realty Trust, Inc.’s charter authorizes the company to obligate itself, and the company’s bylaws require it, to indemnify the company’s directors and officers for actions taken by them in those capacities and to pay or reimburse their reasonable expenses in advance of final disposition of a proceeding to the maximum extent permitted by Maryland law and Digital Realty Trust, Inc. has entered into indemnification agreements with its officers and directors. As a result, Digital Realty Trust, Inc. and its stockholders may have more limited rights against its directors and officers than might otherwise exist under common law. Accordingly, in the event that actions taken in good faith by any of Digital Realty Trust, Inc.’s directors or officers impede the performance of the company, the company’s stockholders’ ability to recover damages from that director or officer will be limited.

Risks Related to Taxes and Digital Realty Trust, Inc.’s Status as a REIT

Failure to qualify as a REIT would have significant adverse consequences to Digital Realty Trust, Inc. and its stockholders and to Digital Realty Trust, L.P. and its unitholders.

Digital Realty Trust, Inc. has operated and intends to continue operating in a manner that it believes will allow it to qualify as a REIT for federal income tax purposes under the Code. Digital Realty Trust, Inc. has not requested and does not plan to request a ruling from the IRS that it qualifies as a REIT. Qualification as a REIT involves the application of highly technical and complex Code provisions for which there are only limited judicial and administrative interpretations. The complexity of these provisions and of the applicable Treasury Regulations that have been promulgated under the Code is greater in the case of a REIT that, like Digital Realty Trust, Inc., holds its assets through a partnership. The determination of various factual matters and circumstances not entirely within Digital Realty Trust, Inc.’s control may affect its ability to qualify as a REIT. In order to qualify as a REIT, Digital Realty Trust, Inc. must satisfy a number of requirements, including requirements regarding the ownership of its stock, requirements regarding the composition of its assets and a requirement that at least 95% of its gross income in any year must be derived from qualifying sources, such as “rents from real property.” Also, Digital Realty Trust, Inc. must make distributions to stockholders aggregating annually at least 90% of its net taxable income, excluding any net capital gains.

 

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If Digital Realty Trust, Inc. loses its REIT status, it will face serious tax consequences that would substantially reduce its cash available for distribution, including cash available to pay dividends to its stockholders, for each of the years involved because:

 

   

Digital Realty Trust, Inc. would not be allowed a deduction for dividends paid to stockholders in computing its taxable income and would be subject to federal income tax at regular corporate rates;

 

   

Digital Realty Trust, Inc. also could be subject to the federal alternative minimum tax and possibly increased state and local taxes; and

 

   

unless Digital Realty Trust, Inc. is entitled to relief under applicable statutory provisions, it could not elect to be taxed as a REIT for four taxable years following the year during which it was disqualified.

In addition, if Digital Realty Trust, Inc. fails to qualify as a REIT, it will not be required to make distributions to stockholders, and accordingly, distributions Digital Realty Trust, L.P. makes to its unitholders could be similarly reduced. As a result of all these factors, Digital Realty Trust, Inc.’s failure to qualify as a REIT also could impair our ability to expand our business and raise capital, and would materially adversely affect the value of Digital Realty Trust, Inc.’s stock and Digital Realty Trust, L.P.’s units.

In certain circumstances, Digital Realty Trust, Inc. may be subject to federal and state taxes as a REIT, which would reduce its cash available for distribution to its stockholders.

Even if Digital Realty Trust, Inc. qualifies as a REIT for federal income tax purposes, it may be subject to some federal, state and local taxes on its income or property and, in certain cases, a 100% penalty tax, in the event it sells property as a dealer. In addition, our domestic corporate subsidiary, Digital Services, Inc., which is a taxable REIT subsidiary of Digital Realty Trust, Inc., could be subject to federal and state taxes, and our foreign properties and companies are subject to tax in the jurisdictions in which they operate and are located. Any federal, state or other taxes Digital Realty Trust, Inc. pays will reduce its cash available for distribution to stockholders.

To maintain Digital Realty Trust, Inc.’s REIT status, we may be forced to borrow funds during unfavorable market conditions.

To qualify as a REIT, Digital Realty Trust, Inc. generally must distribute to its stockholders at least 90% of its net taxable income each year, excluding capital gains, and Digital Realty Trust, Inc. will be subject to regular corporate income taxes to the extent that it distributes less than 100% of its net taxable income each year. In addition, Digital Realty Trust, Inc. will be subject to a 4% nondeductible excise tax on the amount, if any, by which distributions paid by Digital Realty Trust, Inc. in any calendar year are less than the sum of 85% of its ordinary income, 95% of its capital gain net income and 100% of its undistributed income from prior years. While historically Digital Realty Trust, Inc. has satisfied these distribution requirements by making cash distributions to its stockholders, a REIT is permitted to satisfy these requirements by making distributions of cash or other property. We may need to borrow funds for Digital Realty Trust, Inc. to meet the REIT distribution requirements even if the then prevailing market conditions are not favorable for these borrowings. These borrowing needs could result from differences in timing between the actual receipt of cash and inclusion of income for federal income tax purposes, or the effect of non-deductible capital expenditures, the creation of reserves or required debt or amortization payments.

Dividends payable by REITs do not qualify for the reduced tax rates available for some dividends.

Income from “qualified dividends” payable to U.S. stockholders that are individuals, trusts and estates are generally subject to tax at preferential rates. Dividends payable by REITs, however, generally are not eligible for the preferential tax rates applicable to qualified dividend income. Although these rules do not adversely affect the taxation of REITs or dividends payable by REITs, to the extent that the preferential rates continue to apply to regular corporate qualified dividends, investors who are individuals, trusts and estates may perceive investments

 

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in REITs to be relatively less attractive than investments in the stocks of non-REIT corporations that pay dividends, which could materially and adversely affect the value of the shares of REITs, including the per share trading price of Digital Realty Trust, Inc.’s capital stock.

The tax imposed on REITs engaging in “prohibited transactions” may limit our ability to engage in transactions which would be treated as sales for federal income tax purposes.

A REIT’s net income from prohibited transactions is subject to a 100% penalty tax. In general, prohibited transactions are sales or other dispositions of property, other than foreclosure property, held primarily for sale to customers in the ordinary course of business. Although we do not intend to hold any properties that would be characterized as held for sale to customers in the ordinary course of our business, unless a sale or disposition qualifies under certain statutory safe harbors, such characterization is a factual determination and no guarantee can be given that the IRS would agree with our characterization of our properties or that we will always be able to make use of the available safe harbors.

Complying with REIT requirements may cause us to forego otherwise attractive opportunities or liquidate otherwise attractive investments.

To qualify as a REIT for federal income tax purposes, Digital Realty Trust, Inc. must continually satisfy tests concerning, among other things, its sources of income, the nature and diversification of its assets (including its proportionate share of Digital Realty Trust, L.P.’s assets), the amounts it distributes to its stockholders and the ownership of its capital stock. If Digital Realty Trust, Inc. fails to comply with one or more of the asset tests at the end of any calendar quarter, it must correct the failure within 30 days after the end of the calendar quarter or qualify for certain statutory relief provisions to avoid losing its REIT qualification and suffering adverse tax consequences. In order to meet these tests, we may be required to forego investments we might otherwise make or to liquidate otherwise attractive investments. Thus, compliance with the REIT requirements may hinder our performance and reduce amounts available for distribution to Digital Realty Trust, Inc.’s stockholders and Digital Realty Trust, L.P.’s unitholders.

Legislative or other actions affecting REITs could have a negative effect on us.

The rules dealing with federal income taxation are constantly under review by persons involved in the legislative process and by the IRS and the U.S. Department of the Treasury. Changes to the tax laws, with or without retroactive application, could materially and adversely affect Digital Realty Trust, Inc.’s stockholders, Digital Realty Trust, L.P.’s unitholders and/or us. We cannot predict how changes in the tax laws might affect our investors and/or us. New legislation, Treasury Regulations, administrative interpretations or court decisions could significantly and negatively affect Digital Realty Trust, Inc.’s ability to qualify as a REIT or the federal income tax consequences of such qualification.

The power of Digital Realty Trust, Inc.’s board of directors to revoke Digital Realty Trust, Inc.’s REIT election without stockholder approval may cause adverse consequences to Digital Realty Trust, Inc.’s stockholders and Digital Realty Trust, L.P.’s unitholders.

Digital Realty Trust, Inc.’s charter provides that its board of directors may revoke or otherwise terminate its REIT election, without the approval of its stockholders, if it determines that it is no longer in Digital Realty Trust, Inc.’s best interests to continue to qualify as a REIT. If Digital Realty Trust, Inc. ceases to qualify as a REIT, it would become subject to U.S. federal income tax on its taxable income and it would no longer be required to distribute most of its taxable income to its stockholders and accordingly, distributions Digital Realty Trust, L.P. makes to its unitholders could be similarly reduced.

 

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Forward-Looking Statements

We make statements in this report that are forward-looking statements within the meaning of the federal securities laws. In particular, statements pertaining to our capital resources, portfolio performance including our ability to lease vacant space and space under development, leverage policy and acquisition and capital expenditure plans, as well as our discussion of “Factors Which May Influence Future Results of Operations,” contain forward-looking statements. Likewise, all of our statements regarding anticipated market conditions, demographics and results of operations are forward-looking statements. You can identify forward-looking statements by the use of forward-looking terminology such as “believes,” “expects,” “may,” “will,” “should,” “seeks,” “approximately,” “intends,” “plans,” “pro forma,” “estimates” or “anticipates” or the negative of these words and phrases or similar words or phrases which are predictions of or indicate future events or trends and which do not relate solely to historical matters. You can also identify forward-looking statements by discussions of strategy, plans or intentions.

Forward-looking statements involve numerous risks and uncertainties and you should not rely on them as predictions of future events. Forward-looking statements depend on assumptions, data or methods which may be incorrect or imprecise and we may not be able to realize them. We do not guarantee that the transactions and events described will happen as described or that they will happen at all. The following factors, among others, could cause actual results and future events to differ materially from those set forth or contemplated in the forward-looking statements:

 

   

the impact of current global economic, credit and market conditions;

 

   

current local economic conditions in our geographic markets;

 

   

decreases in information technology spending, including as a result of economic slowdowns or recession;

 

   

adverse economic or real estate developments in our industry or the industry sectors that we sell to (including risks relating to decreasing real estate valuations and impairment charges);

 

   

our dependence upon significant tenants;

 

   

bankruptcy or insolvency of a major tenant or a significant number of smaller tenants;

 

   

defaults on or non-renewal of leases by tenants;

 

   

our failure to obtain necessary debt and equity financing;

 

   

risks associated with using debt to fund our business activities, including re-financing and interest rate risks, our failure to repay debt when due, adverse changes in our credit ratings or our breach of covenants or other terms contained in our loan facilities and agreements;

 

   

financial market fluctuations;

 

   

changes in foreign currency exchange rates;

 

   

our inability to manage our growth effectively;

 

   

difficulty acquiring or operating properties in foreign jurisdictions;

 

   

our failure to successfully integrate and operate acquired or developed properties or businesses;

 

   

risks related to joint venture investments, including as a result of our lack of control of such investments;

 

   

delays or unexpected costs in development of properties;

 

   

decreased rental rates, increased operating costs or increased vacancy rates;

 

   

increased competition or available supply of data center space;

 

   

our inability to successfully develop and lease new properties and development space;

 

33


Table of Contents
Index to Financial Statements
   

difficulties in identifying properties to acquire and completing acquisitions;

 

   

our inability to acquire off-market properties;

 

   

our inability to comply with the rules and regulations applicable to reporting companies;

 

   

Digital Realty Trust, Inc.’s failure to maintain its status as a REIT for federal income tax purposes;

 

   

possible adverse changes to tax laws;

 

   

restrictions on our ability to engage in certain business activities;

 

   

environmental uncertainties and risks related to natural disasters;

 

   

losses in excess of our insurance coverage;

 

   

changes in foreign laws and regulations, including those related to taxation and real estate ownership and operation; and

 

   

changes in local, state and federal regulatory requirements, including changes in real estate and zoning laws and increases in real property tax rates.

The risks included here are not exhaustive, and additional factors could adversely affect our business and financial performance, including factors and risks included in other sections of this report, including under Part I, Item 1A, Risk Factors. Moreover, we operate in a very competitive and rapidly changing environment. New risk factors emerge from time to time and it is not possible for management to predict all such risk factors, nor can we assess the impact of all such risk factors on the business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements. While forward-looking statements reflect our good faith beliefs, they are not guaranties of future performance. We disclaim any obligation to publicly update or revise any forward-looking statement to reflect changes in underlying assumptions or factors, new information, data or methods, future events or other changes.

 

ITEM 1B. UNRESOLVED STAFF COMMENTS

Not applicable.

 

ITEM 2. PROPERTIES

Our Portfolio

As of December 31, 2013, we owned 131 properties, including 12 properties held as investments in unconsolidated joint ventures and developable land. These properties are mainly located throughout the U.S., with 22 properties located in Europe, three properties in Australia, two properties in Asia and two properties in Canada, and contain a total of approximately 24.5 million rentable square feet, including 1.8 million square feet of space under active development and 1.3 million square feet of space held for future development. The following table presents an overview of our portfolio of properties, including the 12 properties held as investments in unconsolidated joint ventures and developable land, based on information as of December 31, 2013. All properties are held in fee simple except as otherwise indicated. Please refer to note 7 in the notes to the consolidated financial statements included in Part II, Item 8 of this Annual Report on Form 10-K for a description of all applicable encumbrances as of December 31, 2013.

 

34


Table of Contents
Index to Financial Statements

Property

   Acquisition
date
   Net
Rentable
Square Feet
Excluding Space
Held for
Development (1)
     Space Under
Active
Development (2)
     Space Held for
Future
Development (3)
     Annualized
Rent
($000) (4)
     Percent
Leased (5)
    Annualized
Rent per
Occupied
Square
Foot ($) (6)
 

North America

                   

Silicon Valley

                   

1350 Duane & 3080 Raymond

   Oct-09      185,000         —           —         $ 10,587         100.0   $ 57.23   

3011 Lafayette Street

   Jan-07      90,780         —           —           10,553         100.0     116.25   

1500 Space Park Drive

   Sep-07      51,615         —           —           9,605         100.0     186.09   

1525 Comstock Street

   Sep-07      42,385         —           —           8,786         100.0     207.29   

3105 & 3205 Alfred Street

   May-10      49,858         —           —           8,621         87.9     196.63   

1100 Space Park Drive

   Nov-04      165,297         —           —           7,861         92.7     51.31   

2045 & 2055 LaFayette Street

   May-04      300,000         —           —           7,380         100.0     24.60   

1725 Comstock Street

   Apr-10      39,643         —           —           6,870         100.0     173.30   

150 South First Street

   Sep-04      179,761         —           —           6,670         97.2     38.17   

1201 Comstock Street

   Jun-08      24,000         —           —           4,736         100.0     197.33   

2334 Lundy Place

   Dec-02      130,752         —           —           4,661         100.0     35.65   

34551 Ardenwood Boulevard

   Jan-03      307,657         —           —           4,090         41.6     31.98   

2401 Walsh Street

   Jun-05      167,932         —           —           3,834         100.0     22.83   

2403 Walsh Street

   Jun-05      103,940         —           —           2,373         100.0     22.83   

2805 Lafayette Street (7)

   Aug-10      53,886         84,180         —           322         25.2     23.75   

47700 Kato Road & 1055 Page Avenue

   Sep-03      199,352         —           —           —           0.0     —     
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        2,091,858         84,180         —           96,949         78.8     58.78   

Dallas

                   

2323 Bryan Street

   Jan-02      453,539         —           23,568         15,383         74.3     45.64   

2501 S. State Hwy. 121

   Feb-12      829,372         —           —           13,412         98.5     16.41   

1232 Alma Road

   Sep-09      105,726         —           —           12,699         95.3     126.06   

2440 Marsh Lane

   Jan-03      135,250         —           —           12,619         94.7     98.55   

4849 Alpha Road

   Apr-04      125,538         —           —           11,418         100.0     90.95   

4025 Midway Road

   Jan-06      100,590         —           —           10,204         98.4     103.05   

400 S. Akard

   Jun-12      269,563         —           —           7,980         94.4     31.34   

11830 Webb Chapel Road

   Aug-04      365,647         —           —           8,021         98.0     22.38   

900 Quality Way

   Sep-09      42,318         —           72,604         6,466         96.2     158.78   

1215 Integrity Drive (8)

   Sep-09      61,750         56,126         —           2,658         94.6     45.48   

904 Quality Way

   Sep-09      46,750         —           —           978         100.0     20.92   

17201 Waterview Parkway

   Jan-13      61,750         —           —           704         100.0     11.40   

850 East Collins

   Sep-09      80,349         33,839         —           343         3.5     121.29   

 

35


Table of Contents
Index to Financial Statements

Property

   Acquisition
date
   Net
Rentable
Square Feet
Excluding Space
Held for
Development (1)
     Space Under
Active
Development (2)
     Space Held for
Future
Development (3)
     Annualized
Rent
($000) (4)
     Percent
Leased (5)
    Annualized
Rent per
Occupied
Square
Foot ($) (6)
 

908 Quality Way

   Sep-09      14,400         —           —           —           86.1     —     

905 Security Row (9)

   Sep-09      —           —           —           —           0.0     —     

1210 Integrity Drive (9)

   Sep-09      —           —           —           —           0.0     —     

950 E. Collins

   Sep-09      —           112,500         —           —           0.0     —     

1301 International Pkwy

   Sep-09      —           —           20,500         —           0.0     —     
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        2,692,542         202,465         116,672         102,885         90.7     42.10   

Northern Virginia

                   

43881 Devin Shafron Drive

   Mar-07      180,000         —           —           19,188         99.0     107.72   

43940 Digital Loudoun Plaza

   Apr-11      160,007         232,704         —           16,714         100.0     104.46   

43915 Devin Shafron Drive

   May-09      129,033         —           3,247         16,377         100.0     126.92   

43791 Devin Shafron Drive

   Mar-07      134,741         —           259         13,187         100.0     97.87   

43830 Devin Shafron Drive

   May-09      101,300         —           11,950         11,622         95.6     120.00   

4050 La Fayette Center Drive

   Jul-10      42,374         —           —           6,855         99.0     163.36   

4030 La Fayette Center Drive

   Jul-10      72,696         —           —           5,887         100.0     80.98   

45901 & 45845 Nokes Boulevard

   Dec-09      167,160         —           —           4,751         100.0     28.42   

44470 Chilum Place

   Feb-07      95,440         —           —           4,529         100.0     47.45   

21110 Ridgetop Circle

   Jan-07      135,513         —           —           2,993         100.0     22.09   

21561 & 21571 Beaumeade Circle

   Dec-09      164,453         —           —           2,931         100.0     17.82   

1506 Moran Road

   Dec-11      78,295         —           —           2,371         100.0     30.28   

1807 Michael Faraday Court

   Oct-06      19,237         —           —           1,892         100.0     98.35   

251 Exchange Place

   Nov-05      70,982         —           —           1,740         100.0     24.51   

43831 Devin Shafron Drive

   Mar-07      117,071         —           —           1,573         100.0     13.44   

8100 Boone Boulevard (10)

   Oct-06      17,015         —           —           535         15.4     203.65   

44060 Digital Loudoun Plaza

   Apr-11      —           281,431         —           —           0.0     —     

4040 La Fayette Center Drive

   Jul-10      —           30,333         —           —           0.0     —     
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        1,685,317         544,468         15,456         113,145         98.7     67.99   

New York Metro

                   

111 Eighth Avenue (10)

   Mar-07      116,843         —           —           21,345         100.0     182.72   

365 S. Randolphville Road

   Feb-08      245,039         86,656         19,753         24,763         92.2     109.63   

3 Corporate Place

   Dec-05      276,931         —           —           19,318         100.0     69.76   

300 Boulevard East

   Nov-02      346,819         —           22,962         16,853         93.6     51.94   

60 & 80 Merritt Boulevard

   Jan-10      209,807         —           34,833         15,468         92.2     79.94   

410 Commerce Boulevard (10)

   Aug-12      27,943         —           —           4,847         100.0     173.46   

 

36


Table of Contents
Index to Financial Statements

Property

   Acquisition
date
   Net
Rentable
Square Feet
Excluding Space
Held for
Development (1)
     Space Under
Active
Development (2)
     Space Held for
Future
Development (3)
     Annualized
Rent
($000) (4)
     Percent
Leased (5)
    Annualized
Rent per
Occupied
Square
Foot ($) (6)
 

636 Pierce Street

   Dec-13      108,336         —           —           3,190         100.0     29.45   

701 Union Boulevard (9)

   Nov-12      —           —           —           —           0.0     —     

650 Randolph Road

   Jun-08      —           —           127,790         —           0.0     —     

3 Corporate Place Annex

        —           100,515         —           —           0.0     —     
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        1,331,718         187,171         205,338         105,784         95.7     83.04   

San Francisco

                   

200 Paul Avenue

   Nov-04      479,082         —           18,522         28,243         95.0     62.06   

365 Main Street

   Jul-10      226,981         —           —           26,709         74.5     157.94   

720 2nd Street

   Jul-10      121,220         —           —           16,227         90.6     147.70   

360 Spear Street

   Dec-11      154,950         —           —           8,269         100.0     53.37   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        982,233         —           18,522         79,448         90.5     89.37   

Chicago

                   

350 E. Cermak Road

   May-05      1,133,739         —           —           70,419         98.9     62.80   

600-780 S. Federal

   Sep-05      131,930         —           29,617         7,424         86.5     65.07   

9333, 9355, 9377 Grand Avenue

   May-12      108,838         289,220         176,886         4,862         81.5     54.81   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        1,374,507         289,220         206,503         82,705         96.3     62.46   

Phoenix

                   

2121 South Price Road

   Jul-10      472,449         35,723         —           40,367         71.8     119.07   

120 E. Van Buren Street

   Jul-06      287,514         —           —           21,443         88.0     84.79   

2055 East Technology Circle (11)

   Oct-06      76,350         —           —           8,478         100.0     111.04   

2010 East Centennial Circle (12)

   May-03      113,405         —           —           3,194         100.0     28.16   

1900 S. Price Road

   Jan-13      118,348         —           108,926         1,450         100.0     12.25   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        1,068,066         35,723         108,926         74,932         84.3     83.26   

Boston

                   

128 First Avenue

   Jan-10      274,750         —           —           23,779         97.5     88.74   

55 Middlesex

   Jan-10      101,067         —           —           12,172         96.8     124.48   

100 & 200 Quannapowitt Parkway

   Jun-04      304,402         —           82,554         7,799         86.9     29.47   

115 Second Avenue

   Oct-05      66,730         —           —           3,869         100.0     57.98   

105 Cabot Street

   Jan-10      34,526         —           71,205         1,687         41.5     117.69   

600 Winter Street

   Sep-06      30,400         —           —           760         100.0     25.00   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        811,875         —           153,759         50,066         91.4     67.49   

 

37


Table of Contents
Index to Financial Statements

Property

   Acquisition
date
   Net
Rentable
Square Feet
Excluding Space
Held for
Development (1)
     Space Under
Active
Development (2)
     Space Held for
Future
Development (3)
     Annualized
Rent
($000) (4)
     Percent
Leased (5)
    Annualized
Rent per
Occupied
Square
Foot ($) (6)
 

Los Angeles

                   

600 West Seventh Street

   May-04      489,722         —           —           23,731         97.8     49.55   

2260 East El Segundo Boulevard

   Jul-10      132,240         —           —           11,616         90.2     97.38   

200 North Nash Street

   Jun-05      113,606         —           —           2,595         100.0     22.84   

3015 Winona Avenue

   Dec-04      82,911         —           —           1,706         100.0     20.58   

3300 East Birch Street

   Aug-03      68,807         —           —           1,593         100.0     23.15   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        887,286         —           —           41,241         97.3     47.76   

Atlanta

                   

375 Riverside Parkway

   Jun-03      250,191         —           —           8,388         100.0     33.53   

760 Doug Davis Road

   Dec-11      334,306         —           —           6,473         100.0     19.36   

101 Aquila Way

   Apr-06      313,581         —           —           1,437         100.0     4.58   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        898,078         —           —           16,298         100.0     18.15   

Philadelphia

                   

833 Chestnut Street

   Mar-05      594,747         —           60,011         13,424         91.7     24.63   

St. Louis

                   

900 Walnut Street

   Aug-07      105,776         —           6,490         4,540         95.8     44.78   

210 N Tucker Boulevard

   Aug-07      205,650         53,988         77,778         4,661         73.2     30.95   

1 Savvis Parkway

   Aug-07      156,000         —           —           3,042         100.0     19.50   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        467,426         53,988         84,268         12,243         87.3     30.01   

Houston

                   

Digital Houston

   Apr-06      404,235         —           22,722         16,588         90.8     45.17   

Denver

                   

11900 East Cornell Avenue

   Sep-12      285,840         —           —           6,449         94.3     23.92   

8534 Concord Center Drive

   Jun-05      85,660         —           —           3,784         100.0     44.17   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        371,500         —           —           10,233         95.6     28.80   

Portland

                   

3825 NW Aloclek Place

   Aug-11      48,574         —           —           7,993         100.0     164.55   

 

38


Table of Contents
Index to Financial Statements

Property

   Acquisition
date
   Net
Rentable
Square Feet
Excluding Space
Held for
Development (1)
     Space Under
Active
Development (2)
     Space Held for
Future
Development (3)
     Annualized
Rent
($000) (4)
     Percent
Leased (5)
    Annualized
Rent per
Occupied
Square
Foot ($) (6)
 

Miami

                   

36 NE 2nd Street

   Jan-02      162,140         —           —           5,193         100.0     32.03   

2300 NW 89th Place

   Sep-06      64,174         —           —           694         100.0     10.81   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        226,314         —           —           5,887         100.0     26.01   

Sacramento

                   

11085 Sun Center Drive

   Sep-11      69,048         —           —           2,878         100.0     41.68   

3065 Gold Camp Drive

   Oct-04      40,394         —           23,397         1,923         100.0     47.61   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        109,442         —           23,397         4,801         100.0     43.87   

Charlotte

                   

125 North Myers

   Aug-05      25,402         —           —           1,400         100.0     55.11   

731 East Trade Street

   Aug-05      40,879         —           —           1,351         100.0     33.05   

113 North Myers

   Aug-05      29,218         —           —           961         100.0     32.89   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        95,499         —           —           3,712         100.0     28.81   

Toronto, Canada

                   

6800 Millcreek Drive

   Apr-06      83,758         —           —           2,084         100.0     24.88   

371 Gough Road

   Mar-13      64,546         34,306         21,189         337         100.0     5.22   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        148,304         34,306         21,189         2,421         100.0     16.32   

Minneapolis / St. Paul

                   

1500 Towerview Road

   Mar-05      328,765         —           —           4,438         100.0     13.50   

1125 Energy Park Drive

   Mar-05      112,827         —           —           1,437         100.0     12.74   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        441,592         —           —           5,875         100.0     13.31   

Austin

                   

7401 E. Ben White Boulevard

   May-13      203,235         —           —           1,848         100.0     9.09   

8025 North Interstate 35

   May-12      62,237         —           —           934         100.0     15.01   

8201 E. Riverside Drive

   May-13      133,460         —           —           821         67.4     9.12   

7620 Metro Center Drive

   Dec-05      45,000         —           —           335         69.6     10.70   

7500 Metro Center Drive

   Dec-05      30,000         44,962         —           30         0.0     —     
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        473,932         44,962         —           3,968         81.6     10.18   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Subtotal—North America

        17,205,045         1,476,483         1,036,763         850,598         91.7     53.91   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

 

39


Table of Contents
Index to Financial Statements

Property

   Acquisition
date
   Net
Rentable
Square Feet
Excluding Space
Held for
Development (1)
     Space Under
Active
Development (2)
     Space Held for
Future
Development (3)
     Annualized
Rent
($000) (4)
     Percent
Leased (5)
    Annualized
Rent per
Occupied
Square
Foot ($) (6)
 

Europe

                   

London, England

                   

Unit 21 Goldsworth Park Trading Estate (13)

   Jul-12      386,281         —           93,719         57,265         96.7     153.24   

The Chess Building (13)

   Jul-12      133,000         —           —           20,736         97.3     160.32   

Unit B Prologis Park (13)

   Jul-12      120,000         —           —           16,895         100.0     140.79   

3 St. Anne’s Boulevard (13)

   Dec-07      96,147         —           —           16,991         84.5     209.02   

Mundells Roundabout (13)

   Apr-07      113,464         —           —           8,443         100.0     74.41   

Cressex 1 (13)

   Dec-07      50,847         —           —           7,804         100.0     153.48   

6 Braham Street (13)

   Jul-02      63,233         —           —           5,311         100.0     83.99   

2 St. Anne’s Boulevard (13)

   Dec-07      30,612         —           —           4,030         100.0     131.65   

1 St. Anne’s Boulevard (13)

   Dec-07      20,219         —           —           308         100.0     15.23   

Fountain Court (13)

   Jul-11      41,957         —           89,814         2,111         27.2     185.06   

Principal Park, Crawley

   Sep-13      —           106,400         —           —           0.0     —     
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        1,055,760         106,400         183,533         139,894         94.2     140.72   

Paris, France

                   

114 Rue Ambroise Croizat (14)

   Dec-06      324,796         36,124         —           21,351         95.6     68.80   

1 Rue Jean-Pierre (14)

   Dec-12      104,666         —           —           4,810         100.0     45.96   

127 Rue de Paris (14)

   Dec-12      59,991         —           —           2,061         100.0     34.36   

Liet-dit ie Christ de Saclay (14)

   Dec-12      21,337         —           —           687         100.0     32.20   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        510,790         36,124         —           28,909         97.2     58.25   

Dublin, Ireland

                   

Unit 9, Blanchardstown Corporate Park (14)

   Dec-06      120,000         —           —           10,856         95.2     95.01   

Clonshaugh Industrial Estate II (14)

   Feb-06      124,500         —           —           9,235         100.0     74.18   

Clonshaugh Industrial Estate I (14)

   Feb-06      20,000         —           —           1,623         100.0     81.15   

Profile Park

   Oct-11      —           47,092         —           —           0.0     —     
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        264,500         47,092         —           21,714         97.8     83.92   

Amsterdam, Netherlands

                   

Paul van Vlissingenstraat 16 (14)

   Aug-05      112,472         —           —           7,843         100.0     69.73   

Cateringweg 5 (14)

   Jun-10      55,972         —           —           5,809         100.0     103.78   

Naritaweg 52 (14)(15)

   Dec-07      63,260         —           —           2,832         100.0     44.77   

Gyroscoopweg 2E-2F (14)

   Jul-06      55,585         —           —           1,342         100.0     24.14   

Liverpoolweg 10 (14)

   Jun-13      16,813         —           —           853         100.0     50.73   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        304,102         —           —           18,679         100.0     61.42   

 

40


Table of Contents
Index to Financial Statements

Property

   Acquisition
date
   Net
Rentable
Square Feet
Excluding Space
Held for
Development (1)
     Space Under
Active
Development (2)
     Space Held for
Future
Development (3)
     Annualized
Rent
($000) (4)
     Percent
Leased (5)
    Annualized
Rent per
Occupied
Square
Foot ($) (6)
 

Manchester, England

                   

Manchester Technopark, Plot C1 (13)

   Jun-08      38,016         —           —           1,987         100.0     52.27   

Geneva, Switzerland

                   

Chemin de l’Epinglier 2 (14)

   Nov-05      59,190         —           —           1,847         100.0     31.20   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Subtotal—Europe

        2,232,358         189,616         183,533         213,030         96.3     99.06   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Asia / Pacific

                   

Singapore

                   

29A International Business Park (16)

   Nov-10      306,172         —           64,328         32,811         86.9     123.37   

Melbourne, Australia

                   

98 Radnor Drive (17)

   Aug-11      52,988         —           —           6,827         100.0     128.84   

Deer Park

   Aug-11      —           93,582         —           —           0.0     —     
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        52,988         93,582         —           6,827         100.0     128.84   

Sydney, Australia

                   

1-23 Templar Road (17)

   Jul-11      39,156         —           47,061         4,469         69.8     163.43   

23 Waterloo Rd (17)

   Dec-12      51,990         —           —           1,234         100.0     23.74   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        91,146         —           47,061         5,703         87.0     71.89   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Subtotal—Asia / Pacific

        450,306         93,582         111,389         45,341         88.4     113.84   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Portfolio Total/Weighted Average

        19,887,709         1,759,681         1,331,685         1,108,969         92.2     60.51   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

 

41


Table of Contents
Index to Financial Statements

Property

   Acquisition /
Contribution
date
   Net
Rentable
Square Feet
Excluding
Space
Held for
Development (1)
     Space Under
Active
Development (2)
     Space Held for
Future
Development (3)
     Annualized
Rent
($000) (4)
     Percent
Leased (5)
    Annualized
Rent per
Occupied
Square
Foot ($) (6)
 

Unconsolidated Joint Ventures—Managed

             

Silicon Valley

             

4650 Old Ironsides Drive (18)

   Sep-13      124,383         —           —           4,062         100.0     32.66   

2950 Zanker Road (18)

   Sep-13      69,700         —           —           3,152         100.0     45.22   

4700 Old Ironsides Drive (18)

   Sep-13      90,139         —           —           2,058         100.0     22.83   

444 Toyama Drive (18)

   Sep-13      42,083         —           —           1,942         100.0     46.15   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        326,305         —           —           11,214         100.0     34.37   

Northern Virginia

             

43790 Devin Shafron Drive (18)

   Sep-13      152,138         —           —           3,228         100.0     21.22   

21551 Beaumeade Circle (18)

   Sep-13      152,504         —           —           2,088         100.0     13.69   

7505 Mason King Court (18)

   Sep-13      109,650         —           —           1,865         100.0     17.01   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        414,292         —           —           7,181         100.0     17.33   

Dallas

             

14901 FAA Boulevard (18)

   Sep-13      263,700         —           —           5,188         100.0     19.67   

900 Dorothy Drive (18)

   Sep-13      56,176         —           —           1,612         100.0     28.70   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        319,876         —           —           6,800         100.0     21.26   

Hong Kong

             

33 Chun Choi Street

   Jun-12      —           —           —           —           0.0     —     
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Unconsolidated Joint Ventures—Managed Total/Weighted Average

        1,060,473         —           —           25,195         100.0     23.76   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Unconsolidated Joint Ventures—Non-Managed

             

Seattle

             

2001 Sixth Avenue

   Nov-06      400,369         —           —           31,534         95.0     82.91   

2020 Fifth Avenue

   Oct-11      51,000         —           —           3,338         100.0     65.45   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
        451,369         —           —           34,872         95.6     80.85   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Unconsolidated Joint Ventures Total/Weighted Average

        1,511,842         —           —           60,067         98.7     40.26   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Portfolio Total/Weighted Average

        21,399,551         1,759,681         1,331,685         1,169,036         92.6     58.98   
     

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

 

42


Table of Contents
Index to Financial Statements

 

(1) Net rentable square feet at a building represents the current square feet at that building under lease as specified in the lease agreements plus management’s estimate of space available for lease. We estimate the total net rentable square feet available for lease based on a number of factors in addition to contractually leased square feet, including available power, required support space and common area. Net rentable square feet includes tenants’ proportional share of common areas but excludes space held for development.
(2) Space under active development includes current base building and data center projects in progress.
(3) Space held for future development includes space held for future data center development, and excludes space under active development.
(4) Annualized rent represents the monthly contractual rent (defined as cash base rent before abatements) under existing leases as of December 31, 2013 multiplied by 12.
(5) Excludes space held for future development and space under active development. We estimate the total square feet available for lease based on a number of factors in addition to contractually leased square feet, including available power, required support space and common area.
(6) Annualized rent per square foot represents annualized rent as computed above, divided by the total square footage under lease as of the same date.
(7) Formerly 800 Central Expressway.
(8) Formerly 1215 Datacenter Park.
(9) Building razed in 2013, included in land inventory.
(10)

111 Eighth Avenue (2 nd and 6 th floors), 8100 Boone Boulevard, 111 Eighth Avenue (3 rd and 7 th floors) and 410 Commerce Boulevard are leased by us pursuant to leases that expire in June 2024, September 2017, February 2022 and December 2026, respectively. The lease at 111 Eighth Avenue (2 nd and 6 th floors) has an option to extend the lease until June 2034 and the lease at 111 Eighth Avenue (3 rd and 7 th floors) has an option to extend the lease until February 2032.

(11) We are party to a ground sublease for this property. The term of the ground sublease expires in September 2083. All of the lease payments were prepaid by the prior owner of this property.
(12) We are party to a ground sublease for this property. The term of the ground sublease expires in the year 2082.
(13) Rental amounts were calculated based on the exchange rate in effect on December 31, 2013 of $1.66 to £1.00. Manchester Technopark is subject to a ground lease, which expires in the year 2125.
(14) Rental amounts were calculated based on the exchange rate in effect on December 31, 2013 of $1.37 to €1.00. Paul Van Vlissingenstraat 16, Chemin de l’Epinglier 2, Clonshaugh Industrial Estate I and II and Cateringweg 5 are subject to ground leases, which expire in the years 2054, 2074, 2981 and 2059, respectively.
(15) We are party to a ground sublease for this property. This is a perpetual ground sublease. Lease payments were prepaid by the prior owner of this property through December 2036.
(16) Rental amounts were calculated based on the exchange rate in effect on December 31, 2013 of $0.79 to S$1.00. 29A International Business Park is subject to a ground lease, which expires in the year 2038.
(17) Rental amounts were calculated based on the exchange rate in effect on December 31, 2013 of $0.89 to A$1.00.
(18)

On September 27, 2013, these properties were contributed to an unconsolidated joint venture that was formed with an investment fund managed by Prudential Real Estate Investors (PREI ® ).

 

43


Table of Contents
Index to Financial Statements

Tenant Diversification

As of December 31, 2013, our portfolio was leased to 655 companies, many of which are nationally recognized firms. The following table sets forth information regarding the 20 largest tenants in our portfolio based on annualized rent as of December 31, 2013 (dollar amounts in thousands).

 

    

Tenant

   Number
of
Locations
     Total
Occupied
Square
Feet (1)(5)
     Percentage
of Net
Rentable
Square
Feet (5)
    Annualized
Rent (2)(5)
     Percentage
of
Annualized
Rent (5)
    Weighted
Average
Remaining
Lease
Term in
Months
 

1

   CenturyLink, Inc. (3)      37         2,387,212         11.9   $ 87,129         7.8     81   

2

   IBM (4)      11         448,525         2.2     61,652         5.5     96   

3

   TelX Group, Inc.      12         341,202         1.7     47,745         4.3     171   

4

   Equinix Operating Company, Inc.      10         736,932         3.7     36,020         3.2     155   

5

   Morgan Stanley      5         198,670         1.0     30,548         2.7     40   

6

   Facebook, Inc.      3         206,283         1.0     27,626         2.5     64   

7

   AT & T      18         614,647         3.1     25,782         2.3     62   

8

   Deutsche Bank AG      3         113,461         0.6     23,511         2.1     55   

9

   Verizon Communications, Inc.      31         320,703         1.6     20,431         1.8     58   

10

   NTT Communications Company      7         319,189         1.6     19,825         1.8     68   

11

   SunGard Availability Services LP      7         343,370         1.7     19,317         1.7     72   

12

   JPMorgan Chase & Co.      6         198,012         1.0     19,228         1.7     81   

13

   Level 3 Communications, LLC      43         375,887         1.9     16,484         1.5     83   

14

   TATA Communications (UK)      6         131,065         0.7     14,232         1.3     53   

15

   Nomura International PLC      2         63,137         0.3     13,073         1.2     73   

16

   Pfizer, Inc.      1         97,069         0.5     11,886         1.1     48   

17

   Amazon      8         281,118         1.4     11,077         1.0     73   

18

   Yahoo! Inc.      2         110,847         0.6     10,988         1.0     46   

19

   BT Americas, Inc.      3         67,685         0.3     10,199         0.9     42   

20

   Sprint Communications Co., LP      6         173,319         0.9     10,007         0.9     14   
        

 

 

    

 

 

   

 

 

    

 

 

   

 

 

 
   Total/Weighted Average         7,528,333         37.7   $ 516,760         46.3     84   
        

 

 

    

 

 

   

 

 

    

 

 

   

 

 

 

 

(1) Occupied square footage is defined as leases that commenced on or before December 31, 2013. For some of our properties, we calculate occupancy based on factors in addition to contractually leased square feet, including available power, required support space and common area.
(2) Annualized base rent represents the monthly contractual base rent (defined as cash base rent before abatements) under existing leases as of December 31, 2013 multiplied by 12.
(3) Represents leases with Savvis Communications Corporation, or Savvis, and Qwest Communications International, Inc., or Qwest, (or affiliates thereof), which are our direct tenants. CenturyLink, Inc. acquired Qwest in the three months ended June 30, 2011 and Savvis in the three months ended September 30, 2011, and Qwest and Savvis are now wholly-owned subsidiaries of CenturyLink, Inc.
(4) Represents leases with IBM and leases with Softlayer. IBM acquired Softlayer in July 2013.
(5) Represents consolidated portfolio plus our managed portfolio of unconsolidated joint ventures based on our ownership percentage.

 

44


Table of Contents
Index to Financial Statements

Lease Distribution

The following table sets forth information relating to the distribution of leases in the properties in our portfolio, based on net rentable square feet (excluding approximately 1.8 million square feet of space under active development and approximately 1.3 million square feet of space held for future development at December 31, 2013) under lease as of December 31, 2013 (dollar amounts in thousands).

 

Square Feet Under Lease

   Number
of
Leases (1)(4)
     Percentage
of All
Leases
    Total Net
Rentable
Square
Feet (2)(4)
     Percentage
of Net
Rentable
Square
Feet (2)
    Annualized
Rent (3)(4)
     Percentage
of
Annualized
Rent
 

Available

          1,559,538         7.8   $  —           0.0

2,500 or less

     1,461         64.6     667,487         3.3     64,614         5.8

2,501 - 10,000

     357         15.8     2,154,548         10.7     204,335         18.3

10,001 - 20,000

     221         9.8     3,249,211         16.2     296,643         26.6

20,001 - 40,000

     114         5.0     3,328,498         16.5     236,758         21.3

40,001 - 100,000

     76         3.4     4,665,259         23.2     194,465         17.5

Greater than 100,000

     34         1.4     4,475,264         22.3     117,190         10.5
  

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

Portfolio Total

     2,263         100.0     20,099,805         100.0   $ 1,114,005         100.0
  

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

 

(1) Includes license and similar agreements that upon expiration will be automatically renewed, primarily on a month-to-month basis. Number of leases represents the leased-unit count; a lease could include multiple units.
(2) For some of our properties, we calculate square footage based on factors in addition to contractually leased square feet, including available power, required support space and common area. We estimate the total net rentable square feet available for lease based on a number of factors in addition to contractually leased square feet, including available power, required support space and common area.
(3) Annualized rent represents the monthly contractual base rent (defined as cash base rent before abatements) under existing leases as of December 31, 2013 multiplied by 12.
(4) Represents consolidated portfolio plus our managed portfolio of unconsolidated joint ventures based on our ownership percentage.

 

45


Table of Contents
Index to Financial Statements

Lease Expirations

The following table sets forth a summary schedule of the lease expirations for leases in place as of December 31, 2013 plus available space for ten calendar years at the properties in our portfolio, excluding approximately 1.8 million square feet of space under active development and approximately 1.3 million square feet of space held for future development at December 31, 2013. Unless otherwise stated in the footnotes, the information set forth in the table assumes that tenants exercise no renewal options and all early termination rights (dollar amounts in thousands).

 

Year

  Number of
Leases
Expiring (1)(5)
    Square
Footage of
Expiring
Leases (2)(5)
    Percentage
of Net
Rentable
Square
Feet (5)
    Annualized
Rent (3)(5)
    Percentage
of
Annualized
Rent (5)
    Annualized
Rent Per
Occupied
Square
Foot (5)
    Annualized
Rent Per
Occupied
Square

Foot at
Expiration (5)
    Annualized
Rent at
Expiration
 

Available

      1,559,538        7.8          

Month to Month (4)

    95        28,766        0.2   $ 4,991        0.5   $ 173.50      $ 178.10      $ 5,123   

2014

    311        984,610        4.9     84,983        7.6     86.31        87.24        85,893   

2015

    311        1,899,195        9.4     94,542        8.5     49.78        51.60        98,007   

2016

    292        1,617,241        8.0     94,726        8.5     58.57        61.83        99,992   

2017

    205        1,607,713        8.0     73,858        6.6     45.94        49.96        80,329   

2018

    217        1,505,365        7.5     105,043        9.4     69.78        79.82        120,154   

2019

    130        1,759,973        8.8     111,969        10.1     63.62        74.07        130,353   

2020

    147        1,249,072        6.2     101,318        9.1     81.11        96.94        121,088   

2021

    81        1,292,901        6.4     73,739        6.6     57.03        70.42        91,041   

2022

    105        1,428,234        7.1     67,929        6.1     47.56        57.84        82,605   

2023

    101        912,133        4.5     55,266        4.9     60.59        83.35        76,028   

Thereafter

    268        4,255,064        21.2     245,641        22.1     57.73        81.27        345,815   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Portfolio Total / Weighted Average

    2,263        20,099,805        100.0   $ 1,114,005        100.0   $ 60.09      $ 72.08      $ 1,336,428   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Number of leases represents the leased-unit count; a lease could include multiple units.
(2) For some of our properties, we calculate square footage based on factors in addition to contractually leased square feet, including available power, required support space and common area. We estimate the total net rentable square feet available for lease based on a number of factors in addition to contractually leased square feet, including available power, required support space and common area.
(3) Annualized rent represents the monthly contractual base rent (defined as cash base rent before abatements) under existing leases as of December 31, 2013 multiplied by 12.
(4) Includes leases, licenses and similar agreements that upon expiration have been automatically renewed on a month-to-month basis.
(5) Represents consolidated portfolio plus our managed portfolio of unconsolidated joint ventures based on our ownership percentage.

 

ITEM 3. LEGAL PROCEEDINGS

In the ordinary course of our business, we may become subject to tort claims, breach of contract and other claims and administrative proceedings. As of December 31, 2013, we were not a party to any legal proceedings which we believe would have a material adverse effect on our operations or financial position.

 

ITEM 4. MINE SAFETY DISCLOSURES

Not applicable.

 

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PART II

 

ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

Digital Realty Trust, Inc.

Digital Realty Trust, Inc.’s common stock has been listed and is traded on the NYSE under the symbol “DLR” since October 29, 2004. The following table sets forth, for the periods indicated, the high and low last sale prices in dollars on the NYSE for our common stock and the distributions we declared with respect to the periods indicated.

 

     High      Low      Dividends
Declared
 

First Quarter 2012

   $ 74.04       $ 65.00       $ 0.73000   

Second Quarter 2012

   $ 76.04       $ 67.84       $ 0.73000   

Third Quarter 2012

   $ 80.59       $ 66.70       $ 0.73000   

Fourth Quarter 2012

   $ 70.16       $ 59.25       $ 0.73000   

First Quarter 2013

   $ 72.92       $ 62.75       $ 0.78000   

Second Quarter 2013

   $ 74.00       $ 56.02       $ 0.78000   

Third Quarter 2013

   $ 65.43       $ 50.98       $ 0.78000   

Fourth Quarter 2013

   $ 58.35       $ 43.04       $ 0.78000   

Digital Realty Trust, Inc. intends to continue to declare quarterly dividends on its common stock. The actual amount, form and timing of dividends, however, will be at the discretion of the board of directors and will depend upon Digital Realty Trust, Inc.’s financial condition in addition to the requirements for qualification as a REIT under the Code, and no assurance can be given as to the amounts, form or timing of future dividends. The exchange rate on the 2029 debentures is subject to adjustment for certain events, including, but not limited to, certain dividends on Digital Realty Trust, Inc.’s common stock in excess of $0.33 per share per quarter. Therefore, the declaration and payment of quarterly dividends by Digital Realty Trust, Inc. in excess of this threshold may increase the dilutive impact of our operating partnership’s exchangeable debentures on Digital Realty Trust, Inc.’s common stockholders. See Part I, Item 1A, Risk Factors, “Risks Related to Our Business and Operations—We have substantial debt and face risks associated with the use of debt to fund our business activities, including refinancing and interest rate risks—The exchange and repurchase rights of our exchangeable debentures may be detrimental to Digital Realty Trust, Inc.’s stockholders or Digital Realty Trust, L.P.’s unitholders” and “Risks Related to Our Business and Operations—The conversion rights of Digital Realty Trust, Inc.’s convertible preferred stock may be detrimental to holders of Digital Realty Trust, Inc.’s common stock.” In addition, our global revolving credit facility, our Prudential shelf facility and our term loan facility prohibit us from making distributions to our stockholders, or redeeming or otherwise repurchasing shares of our capital stock, including our common stock, after the occurrence and during the continuance of an event of default, except in limited circumstances including as necessary to enable us to maintain our qualification as a REIT and to avoid the payment of income or excise tax. Consequently, after the occurrence and during the continuance of an event of default under our global revolving credit facility, Prudential shelf facility or term loan facility, we may not be able to pay all or a portion of the dividends payable to the holders of our common stock.

Subject to the distribution requirements applicable to REITs under the Code, Digital Realty Trust, Inc. intends, to the extent practicable, to invest substantially all of the proceeds from sales and refinancings of its assets in real estate-related assets and other assets. Digital Realty Trust, Inc. may, however, under certain circumstances, make a dividend of capital or of assets. Such dividends, if any, will be made at the discretion of the board of directors.

As of February 20, 2014, there were approximately 143 holders of record of Digital Realty Trust, Inc.’s common stock. This figure does not reflect the beneficial ownership of shares held in nominee name.

 

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Digital Realty Trust, L.P.

There is no established trading market for Digital Realty Trust, L.P.’s common units of limited partnership. As of February 20, 2014, there were 41 holders of record of common units, including Digital Realty Trust, L.P.’s general partner, Digital Realty Trust, Inc.

The following table sets forth, for the periods indicated, the distributions per common unit that our operating partnership declared with respect to the periods indicated.

 

     Distributions
Declared
 

First Quarter 2012

   $ 0.73000   

Second Quarter 2012

   $ 0.73000   

Third Quarter 2012

   $ 0.73000   

Fourth Quarter 2012

   $ 0.73000   

First Quarter 2013

   $ 0.78000   

Second Quarter 2013

   $ 0.78000   

Third Quarter 2013

   $ 0.78000   

Fourth Quarter 2013

   $ 0.78000   

Digital Realty Trust, L.P. currently intends to continue to make regular quarterly distributions to holders of its common units. Any future distributions will be declared at the discretion of the board of directors of Digital Realty Trust, L.P.’s general partner, Digital Realty Trust, Inc., and will depend on our actual cash flow, financial condition, capital requirements, the annual distribution requirements under the REIT provisions of the Code, and such other factors as the board of directors may deem relevant.

STOCK PERFORMANCE GRAPH

The following graph compares the yearly change in the cumulative total stockholder return on Digital Realty Trust, Inc.’s common stock during the period from December 31, 2008 through December 31, 2013, with the cumulative total return on the MSCI US REIT Index (RMS) and the S&P 500 Market Index. The comparison assumes that $100 was invested on December 31, 2008 in Digital Realty Trust, Inc.’s common stock and in each of these indices and assumes reinvestment of dividends, if any.

 

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COMPARISON OF CUMULATIVE TOTAL RETURN

AMONG DIGITAL REALTY TRUST, INC., S&P 500 INDEX AND RMS INDEX

Assumes $100 invested on December 31, 2008

Assumes dividends reinvested

To fiscal year ending December 31, 2013

 

LOGO

 

Pricing Date

   DLR($)      S&P 500($)      RMS($)  

December 31, 2008

     100.0         100.0         100.0   

December 31, 2009

     158.8         126.5         128.6   

December 31, 2010

     168.5         145.5         165.2   

December 31, 2011

     228.1         148.6         179.6   

December 31, 2012

     242.1         172.4         211.5   

December 31, 2013

     185.2         228.2         216.7   

 

 

This graph and the accompanying text are not “soliciting material,” are not deemed filed with the SEC and are not to be incorporated by reference in any filing by us under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date hereof and irrespective of any general incorporation language in any such filing.

 

The stock price performance shown on the graph is not necessarily indicative of future price performance.

 

The hypothetical investment in Digital Realty Trust, Inc.’s common stock presented in the stock performance graph above is based on the closing price of the common stock on December 31, 2008.

 

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SALES OF UNREGISTERED EQUITY SECURITIES

Digital Realty Trust, Inc.

None.

Digital Realty Trust, L.P.

During the year ended December 31, 2013, our operating partnership issued partnership units in private placements in reliance on the exemption from registration provided by Section 4(2) of the Securities Act, in the amounts and for the consideration set forth below:

During the year ended December 31, 2013, holders of 134,325 shares of Digital Realty Trust, Inc.’s series D cumulative convertible preferred stock, or the series D preferred stock, exercised their right to convert such series D preferred stock into Digital Realty Trust, Inc.’s common stock and received 85,429 shares of Digital Realty Trust, Inc.’s common stock. In connection with this conversion, our operating partnership issued 85,429 common units to Digital Realty Trust, Inc. upon conversion of 134,325 series D cumulative convertible preferred units held by Digital Realty Trust, Inc.

Effective February 26, 2013, Digital Realty Trust, Inc. converted all outstanding shares of its series D preferred stock into shares of its common stock in accordance with the terms of the series D preferred stock. Each share of series D preferred stock was converted into 0.6360 share of Digital Realty Trust, Inc. common stock. Digital Realty Trust, Inc. converted 4,802,180 shares of its series D preferred stock into 3,054,186 shares of Digital Realty Trust, Inc.’s common stock. In connection with this conversion, our operating partnership issued 3,054,186 common units to Digital Realty Trust, Inc. upon conversion of 4,802,180 series D cumulative convertible preferred units.

During the year ended December 31, 2013, Digital Realty Trust, Inc. issued an aggregate of 5,569 shares of its common stock upon the exercise of stock options. Digital Realty Trust, Inc. contributed the proceeds from the option exercises of approximately $0.2 million to our operating partnership in exchange for an aggregate of 5,569 common units, as required by our operating partnership’s partnership agreement.

During the year ended December 31, 2013, Digital Realty Trust, Inc. issued an aggregate of 112,245 shares of its common stock in connection with restricted stock awards for no cash consideration. For each share of common stock issued by Digital Realty Trust, Inc. in connection with such an award, our operating partnership issued a restricted common unit to Digital Realty Trust, Inc. as required by its partnership agreement, for an aggregate of 112,245 units during the year ended December 31, 2013.

All other issuances of unregistered equity securities of our operating partnership during the year ended December 31, 2013 have previously been disclosed in filings with the SEC. For all issuances of units to Digital Realty Trust, Inc., our operating partnership relied on Digital Realty Trust, Inc.’s status as a publicly traded NYSE-listed company with over $9 billion in total consolidated assets and as our operating partnership’s majority owner and general partner as the basis for the exemption under Section 4(2) of the Securities Act.

REPURCHASES OF EQUITY SECURITIES

Digital Realty Trust, Inc.

None.

Digital Realty Trust, L.P.

None.

 

ITEM 6. SELECTED FINANCIAL DATA

SELECTED COMPANY FINANCIAL AND OTHER DATA (Digital Realty Trust, Inc.)

The following table sets forth selected consolidated financial and operating data on an historical basis for Digital Realty Trust, Inc.

 

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The following data should be read in conjunction with our financial statements and notes thereto and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included below in this Form 10-K. Certain prior year amounts have been reclassified to conform to the current year presentation.

 

    Year Ended December 31,  
    2013     2012     2011     2010     2009  
    (Amounts in thousands, except share and per share data)  

Statement of Operations Data:

         

Operating Revenues:

         

Rental

  $ 1,155,051      $ 990,715      $ 820,711      $ 682,026      $ 507,545   

Tenant reimbursements

    323,286        272,309        211,811        178,081        125,136   

Fee income

    3,520        8,428        29,286        4,923        3,399   

Other

    402        7,615        902        371        1,062   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total operating revenues

    1,482,259        1,279,067        1,062,710        865,401        637,142   

Operating Expenses:

         

Rental property operating and maintenance

    454,834        380,176        307,922        250,225        174,038   

Property taxes

    90,321        69,475        49,946        44,432        36,004   

Insurance

    8,743        9,600        8,024        8,133        6,111   

Construction management

    764        1,596        22,715        1,542        2,200   

Depreciation and amortization

    475,464        382,553        310,425        263,903        198,052   

General and administrative

    65,653        57,209        53,624        47,196        39,988   

Transactions

    4,605        11,120        5,654        7,438        2,177   

Other

    63        1,260        90        226        783   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

    1,100,447        912,989        758,400        623,095        459,353   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Operating income

    381,812        366,078        304,310        242,306        177,789   

Other Income (Expenses):

         

Equity in earnings of unconsolidated joint ventures

    9,796        8,135        4,952        5,254        2,172   

Gain on insurance settlement

    5,597        —          —          —          —     

Gain on contribution of investment properties to unconsolidated joint venture

    115,609        —          —          —          —     

Interest and other income

    139        1,892        3,260        616        753   

Interest expense

    (189,399     (157,108     (149,350     (137,384     (88,442

Tax expense

    (1,292     (2,647     42        (1,851     (1,038

Loss from early extinguishment of debt

    (1,813     (303     (1,088     (3,529     —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income

    320,449        216,047        162,126        105,412        91,234   

Net income attributable to noncontrolling interests

    (5,961     (5,713     (5,861     (3,118     (3,572
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income attributable to Digital Realty Trust, Inc.

    314,488        210,334        156,265        102,294        87,662   

Preferred stock dividends

    (42,905     (38,672     (25,397     (37,004     (40,404

Costs on redemption of preferred stock

    —          —          —          (6,951     —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income available to common stockholders

  $ 271,583      $ 171,662      $ 130,868      $ 58,339      $ 47,258   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Per Share Data:

         

Basic income per share available to common stockholders

  $ 2.12      $ 1.48      $ 1.33      $ 0.69      $ 0.62   

Diluted income per share available to common stockholders

  $ 2.12      $ 1.48      $ 1.32      $ 0.68      $ 0.61   

Cash dividend per common share

  $ 3.12      $ 2.92      $ 2.72      $ 2.02      $ 1.47   

Weighted average common shares outstanding:

         

Basic

    127,941,134        115,717,667        98,405,375        84,275,498        75,950,370   

Diluted

    128,127,641        116,006,577        99,169,749        86,013,471        77,020,890   

 

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     December 31,  
     2013      2012      2011      2010      2009  

Balance Sheet Data:

              

Net investments in real estate

   $ 8,384,086       $ 7,603,136       $ 5,242,515       $ 4,584,477       $ 3,157,193   

Total assets

     9,685,745         8,819,214         6,098,566         5,329,483         3,745,059   

Global revolving credit facility

     724,668         723,729         275,106         333,534         205,547   

Unsecured term loan

     1,020,984         757,839         —           —           —     

Unsecured senior notes, net of discount

     2,364,232         1,738,221         1,441,072         1,066,030         83,000   

Exchangeable senior debentures, net of discount

     266,400         266,400         266,400         353,702         432,234   

Mortgages and other secured loans, net of premiums

     585,608         792,376         947,132         1,043,188         1,063,663   

Total liabilities

     6,039,233         5,320,830         3,518,155         3,274,820         2,110,258   

Total stockholders equity

     3,610,516         3,468,305         2,522,917         1,962,518         1,558,995   

Noncontrolling interests in operating partnership

     29,027         24,135         45,057         52,436         58,192   

Noncontrolling interests in consolidated joint ventures

     6,969         5,944         12,437         39,709         17,614   

Total liabilities and equity

   $ 9,685,745       $ 8,819,214       $ 6,098,566       $ 5,329,483       $ 3,745,059   

 

     Year ended December 31,  
     2013     2012     2011     2010     2009  

Cash flows from (used in):

          

Operating activities

   $ 656,390      $ 542,948      $ 400,956      $ 359,029      $ 283,809   

Investing activities

     (1,060,609     (2,475,933     (830,802     (1,737,700     (519,909

Financing activities

     404,746        1,948,635        458,758        1,318,070        235,086   

 

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SELECTED COMPANY FINANCIAL AND OTHER DATA (Digital Realty Trust, L.P.)

The following table sets forth selected consolidated financial and operating data on an historical basis for our operating partnership.

 

    Year Ended December 31,  
    2013     2012     2011     2010     2009  
    (Amounts in thousands, except unit and per unit data)  

Statement of Operations Data:

         

Operating Revenues:

         

Rental

  $ 1,155,051      $ 990,715      $ 820,711      $ 682,026      $ 507,545   

Tenant reimbursements

    323,286        272,309        211,811        178,081        125,136   

Fee income

    3,520        8,428        29,286        4,923        3,399   

Other

    402        7,615        902        371        1,062   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total operating revenues

    1,482,259        1,279,067        1,062,710        865,401        637,142   

Operating Expenses:

         

Rental property operating and maintenance

    454,834        380,176        307,922        250,225        174,038   

Property taxes

    90,321        69,475        49,946        44,432        36,004   

Insurance

    8,743        9,600        8,024        8,133        6,111   

Construction management

    764        1,596        22,715        1,542        2,200   

Depreciation and amortization

    475,464        382,553        310,425        263,903        198,052   

General and administrative

    65,653        57,209        53,624        47,196        39,988   

Transactions

    4,605        11,120        5,654        7,438        2,177   

Other

    63        1,260        90        226        783   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

    1,100,447        912,989        758,400        623,095        459,353   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Operating income

    381,812        366,078        304,310        242,306        177,789   

Other Income (Expenses):

         

Equity in earnings of unconsolidated joint ventures

    9,796        8,135        4,952        5,254        2,172   

Gain on insurance settlement

    5,597        —          —          —          —     

Gain on contribution of investment properties to unconsolidated joint venture

    115,609        —          —          —          —     

Interest and other income

    139        1,892        3,260        616        753   

Interest expense

    (189,399     (157,108     (149,350     (137,384     (88,442

Tax expense

    (1,292     (2,647     42        (1,851     (1,038

Loss from early extinguishment of debt

    (1,813     (303     (1,088     (3,529     —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income

    320,449        216,047        162,126        105,412        91,234   

Net (income) loss attributable to noncontrolling interests in consolidated joint ventures

    (595     444        324        288        (140
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income attributable to Digital Realty Trust, L.P.

    319,854        216,491        162,450        105,700        91,094   

Preferred units distributions

    (42,905     (38,672     (25,397     (37,004     (40,404

Costs on redemption of preferred units

    —          —          —          (6,951     —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income available to common unitholders

  $ 276,949      $ 177,819      $ 137,053      $ 61,745      $ 50,690   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Per Unit Data:

         

Basic income per unit available to common unitholders

  $ 2.12      $ 1.48      $ 1.33      $ 0.69      $ 0.62   

Diluted income per unit available to common unitholders

  $ 2.12      $ 1.48      $ 1.32      $ 0.68      $ 0.61   

Cash distributions per common unit

  $ 3.12      $ 2.92      $ 2.72      $ 2.02      $ 1.47   

Weighted average common units outstanding:

         

Basic

    130,462,534        119,861,380        103,053,004        89,261,172        81,715,226   

Diluted

    130,649,041        120,150,290        103,817,378        90,999,145        82,785,746   

 

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     December 31,  
     2013      2012     2011     2010     2009  

Balance Sheet Data:

           

Net investments in real estate

   $ 8,384,086       $ 7,603,136      $ 5,242,515      $ 4,584,477      $ 3,157,193   

Total assets

     9,685,745         8,819,214        6,098,566        5,329,483        3,745,059   

Global revolving credit facility

     724,668         723,729        275,106        333,534        205,547   

Unsecured term loan

     1,020,984         757,839        —          —          —     

Unsecured senior notes, net of discount

     2,364,232         1,738,221        1,441,072        1,066,030        83,000   

Exchangeable senior debentures, net of discount

     266,400         266,400        266,400        353,702        432,234   

Mortgages and other secured loans, net of premiums

     585,608         792,376        947,132        1,043,188        1,063,663   

Total liabilities

     6,039,233         5,320,830        3,518,155        3,274,820        2,110,258   

General partner’s capital

     3,599,825         3,480,496        2,578,797        2,004,599        1,586,942   

Limited partners’ capital

     31,261         26,854        49,244        56,215        60,875   

Accumulated other comprehensive income (loss)

     8,457         (14,910     (60,067     (45,860     (30,630

Noncontrolling interests in consolidated joint ventures

     6,969         5,944        12,437        39,709        17,614   

Total liabilities and capital

   $ 9,685,745       $ 8,819,214      $ 6,098,566      $ 5,329,483      $ 3,745,059   

 

     Year ended December 31,  
     2013     2012     2011     2010     2009  

Cash flows from (used in):

          

Operating activities

   $ 656,390      $ 542,948      $ 400,956      $ 359,029      $ 283,809   

Investing activities

     (1,060,609     (2,475,933     (830,802     (1,737,700     (519,909

Financing activities

     404,746        1,948,635        458,758        1,318,070        235,086   

 

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ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The following discussion should be read in conjunction with the consolidated financial statements and notes thereto appearing elsewhere in this report. We make statements in this section that are forward-looking statements within the meaning of the federal securities laws. For a complete discussion of forward-looking statements, see the section in this report entitled “Forward-Looking Statements.” Certain risk factors may cause our actual results, performance or achievements to differ materially from those expressed or implied by the following discussion. For a discussion of such risk factors, see the sections in this report entitled “Risk Factors” and “Forward-Looking Statements.”

Occupancy percentages included in the following discussion, for some of our properties, are calculated based on factors in addition to contractually leased square feet, including available power, required support space and common area.

Overview

Our company . Digital Realty Trust, Inc. completed its initial public offering of common stock, or our IPO, on November 3, 2004. We believe that we have operated in a manner that has enabled us to qualify, and have elected to be treated, as a REIT under Sections 856 through 860 of the Code. Our company was formed on March 9, 2004. During the period from our formation until we commenced operations in connection with the completion of our IPO, we did not have any corporate activity other than the issuance of shares of Digital Realty Trust, Inc. common stock in connection with the initial capitalization of the company. Our operating partnership was formed on July 21, 2004.

Business and strategy . Our primary business objectives are to maximize: (i) sustainable long-term growth in earnings and funds from operations per share and unit and (ii) cash flow and returns to our stockholders and our operating partnership’s unitholders through the payment of distributions. We expect to achieve our objectives by focusing on our core business of investing in and developing technology-related real estate. A significant component of our current and future internal growth is anticipated through the development of our existing space held for development and acquisition of new properties. We target high quality, strategically located properties containing applications and operations critical to the day-to-day operations of corporate enterprise datacenter and technology industry tenants and properties that may be developed for such use. Most of our properties contain fully redundant electrical supply systems, multiple power feeds, above-standard precision cooling systems, raised floor areas, extensive in-building communications cabling and high-level security systems. We focus solely on technology-related real estate because we believe that the growth in corporate datacenter adoption and the technology-related real estate industry generally will continue to be superior to that of the overall economy.

As of December 31, 2013, we owned an aggregate of 131 properties, including 12 properties held as investments in unconsolidated joint ventures, with approximately 24.5 million rentable square feet including approximately 1.8 million square feet of space under active development and approximately 1.3 million square feet of space held for future development. The 12 properties held as investments in unconsolidated joint ventures have an aggregate of approximately 1,512,000 rentable square feet. The 11 parcels of developable land we own comprised approximately 154 acres. At December 31, 2013, approximately 1,760,000 square feet was under construction for Turn-Key Flex ® , Powered Base Building ® and Custom Solutions (formerly referred to as Build-to-Suit) products, all of which are expected to be income producing on or after completion, in eight U.S. domestic markets, three European markets, one Canadian market and one Australian market, consisting of approximately 1,063,000 square feet of base building construction and 697,000 square feet of data center construction.

We have developed detailed, standardized procedures for evaluating acquisitions to ensure that they meet our financial, technical and other criteria. We expect to continue to acquire additional assets as a part of our

 

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growth strategy. We intend to aggressively manage and lease our assets to increase their cash flow. We may continue to build out our development portfolio when justified by anticipated returns.

We may acquire properties subject to existing mortgage financing and other indebtedness or we may incur new indebtedness in connection with acquiring or refinancing these properties. Debt service on such indebtedness will have a priority over any cash dividends with respect to Digital Realty Trust, Inc.’s common stock and preferred stock. We currently intend to limit our indebtedness to 60% of our total enterprise value and, based on the closing price of Digital Realty Trust, Inc. common stock on December 31, 2013 of $49.12, our ratio of debt to total enterprise value was approximately 41%. Our total enterprise value is defined as the sum of the market value of Digital Realty Trust, Inc.’s outstanding common stock (which may decrease, thereby increasing our debt to total enterprise value ratio), excluding options issued under our company’s incentive award plan, plus the liquidation value of Digital Realty Trust, Inc.’s preferred stock, plus the aggregate value of our operating partnership’s units not held by Digital Realty Trust, Inc. (with the per unit value equal to the market value of one share of Digital Realty Trust, Inc. common stock and excluding long-term incentive units and Class C units), plus the book value of our total consolidated indebtedness.

Revenue base . As of December 31, 2013, we owned 131 properties through our operating partnership, including 12 properties held as investments in unconsolidated joint ventures and developable land. These properties are mainly located throughout the U.S., with 22 properties located in Europe, three properties in Australia, two properties in Canada and two properties in Asia. We, through our predecessor, acquired our first portfolio property in January 2002 and have added properties as follows:

 

Year Ended December 31:

   Properties
Acquired (1)
     Net Rentable
Square Feet (2)
     Square Feet of Space
Under Active
Development as of
December 31, 2013 (3)
     Square Feet of
Space Held for
Future
Development as  of
December 31, 2013 (4)
 

2002

     5         1,156,483         —           46,530   

2003

     6         1,074,662         —           —     

2004

     10         2,532,754         —           124,473   

2005

     20         3,415,707         44,962         89,628   

2006

     18         2,822,647         36,124         22,722   

2007 (5)

     13         1,689,520         53,988         84,527   

2008

     5         416,705         86,656         147,543   

2009 (6)(8)

     7         1,444,964         202,465         108,301   

2010

     15         2,319,517         150,236         170,366   

2011 (7)

     10         1,030,281         654,809         136,875   

2012

     15         2,461,058         289,220         270,605   

2013

     7         1,035,253         241,221         130,115   
  

 

 

    

 

 

    

 

 

    

 

 

 

Properties owned as of December 31, 2013

     131         21,399,551         1,759,681         1,331,685   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Excludes properties sold: 100 Technology Center Drive (March 2007), 4055 Valley View Lane (March 2007) and 7979 East Tufts Avenue (July 2006). Also excludes a leasehold interest acquired in March 2007 related to an acquisition made in 2006. Includes ten properties held in our managed portfolio of unconsolidated joint ventures consisting of 4650 Old Ironsides Drive (Silicon Valley), 2950 Zanker Road (Silicon Valley), 4700 Old Ironsides Drive (Silicon Valley), 444 Toyama Drive (Silicon Valley), 43790 Devin Shafron Drive (Northern Virginia), 21551 Beaumeade Circle (Northern Virginia), 7505 Mason King Court (Northern Virginia), 14901 FAA Boulevard (Dallas), 900 Dorothy Drive (Dallas) and 33 Chun Choi Street (Hong Kong); and two unconsolidated non-managed joint ventures: 2001 Sixth Avenue (Seattle) and 2020 Fifth Avenue (Seattle).
(2)

Current net rentable square feet as of December 31, 2013, which represents the current square feet under lease as specified in the applicable lease agreements plus management’s estimate of space available for

 

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lease based on engineering drawings. Includes tenants’ proportional share of common areas but excludes space held for development.

(3) Space under active development includes current base building and data center projects in progress.
(4) Space held for future development includes space held for future data center development, and excludes space under active development.
(5) Includes three developed buildings (43915 Devin Shafron Drive, 43830 Devin Shafron Drive and 43790 Devin Shafron Drive) placed into service in 2010 and 2011 that are being included with a property (Devin Shafron buildings) that was acquired in 2007.
(6) Includes a developed building (21551 Beaumeade Circle) placed into service in 2011 that is being included with a property (Beaumeade Circle Portfolio) that was acquired in 2009.
(7) Includes four developed buildings (43940 Digital Loudoun Plaza in Northern Virginia, 3825 NW Aloclek Place in Portland, Oregon, 98 Radnor Drive in Melbourne, Australia and 1-23 Templar Road in Sydney, Australia) placed into service in 2013 and 2012 that were acquired in 2011.
(8) 43790 Devin Shafron Drive and 21551 Beaumeade Circle, which were previously included as part of the Devin Shafron buildings and Beaumeade Portfolio, respectively, are now each separately included in the property count because they were separately contributed to an unconsolidated joint venture in September 2013.

In May 2008, we acquired 701 & 717 Leonard Street, a parking garage in Dallas, Texas; however, we exclude the acquisition from our property count because it is located adjacent to our internet gateway datacenter located at 2323 Bryan Street and is not considered a separate property.

On September 27, 2013, we formed a joint venture with an investment fund managed by Prudential Real Estate Investors (PREI ® ). We contributed nine Powered Base Building ® data centers totaling 1.06 million square feet and valued at approximately $366.4 million (excluding $2.8 million of closing costs). The PREI ® -managed fund took an 80% interest in the joint venture and we retained a 20% interest. The joint venture is structured to provide a current annual preferred return from cash flow first to the PREI ® -managed interest, then to our interest, after which a portion of any excess cash flows is shared by the partners based on their respective interests and the remaining portion is paid to us as a promote interest. We perform the day-to-day accounting and property management functions for the joint venture and, as such, we earn a management fee for the services provided. Although we are the managing member of the joint venture and manage the day-to-day activities, all significant decisions, including approval of annual budgets and setting the amount of our management fees require approval of the PREI ® member. Thus we concluded we do not own a controlling interest and will account for our interest in the joint venture as an equity method investment, which will result in a reduction in same-store revenues and net income from these properties on our income statement relative to historical periods.

As of December 31, 2013, the properties in our portfolio, including the 12 properties held as investments in unconsolidated joint ventures, were approximately 92.6% leased excluding approximately 1.8 million square feet of space under active development and approximately 1.3 million square feet of space held for future development. Due to the capital-intensive and long-term nature of the operations being supported, our lease terms are generally longer than standard commercial leases. As of December 31, 2013, our original average lease term was approximately 12 years, with an average of approximately seven years remaining. Our lease expirations through December 31, 2015 are 14.3% of rentable square feet excluding space under active development and space held for future development as of December 31, 2013.

Factors Which May Influence Future Results of Operations

Global market and economic conditions

United States and international market and economic conditions over the past several years have been unprecedented and challenging with tighter credit conditions and slower economic growth in many markets in which we own properties and conduct our operations. The U.S. and global economies have experienced a recession and face continued concerns about the systemic impact of adverse economic conditions, such as high energy costs, geopolitical issues, the availability and cost of credit, unstable global financial and mortgage markets, high corporate, consumer and governmental debt levels, ongoing sovereign debt and economic issues in

 

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European countries, concerns regarding the U.S. budget deficit, debt ceiling, spending cuts and the possibility of further downgrades to the U.S. government’s credit rating, high unemployment and declining residential and commercial real estate markets. The European debt crisis has raised concerns regarding the debt burden of certain countries using the euro as their currency and their ability to meet future financial obligations, the overall stability of the euro and the suitability of the euro as a single currency given the diverse economic and political circumstances in individual eurozone countries. These concerns could lead to the re-introduction of individual currencies in one or more eurozone countries, or, in more extreme circumstances, the possible dissolution of the euro currency entirely. Should the euro be dissolved entirely, the legal and contractual consequences for parties to euro-denominated contracts are uncertain and would be determined by laws in effect at such time. These potential developments, or market perceptions concerning these and related issues, could adversely affect our leasing and financing activities, rents we receive, potential acquisitions and development projects in Europe.

As a result of these conditions, general economic conditions and the cost and availability of capital have been and may again be adversely affected in some or all of the markets in which we own properties and conduct our operations. Renewed or increased turbulence in the U.S., European, Asia Pacific and other international financial markets and economies may adversely affect our ability, and the ability of our tenants, to replace or renew maturing liabilities on a timely basis, access the capital markets to meet liquidity and capital expenditure requirements and may result in adverse effects on our, and our tenants’, financial condition and results of operations.

In addition, our access to funds under our global revolving credit facility depend on the ability of the lenders that are parties to such facilities to meet their funding commitments to us. We cannot assure you that long-term disruptions in the global economy and the return of tighter credit conditions among, and potential failures or nationalizations of, third party financial institutions as a result of such disruptions will not have an adverse effect on our lenders. If our lenders are not able to meet their funding commitments to us, our business, results of operations, cash flows and financial condition could be adversely affected.

If we do not have sufficient cash flow to continue operating our business and are unable to borrow additional funds, access our existing lines of credit or raise equity or debt capital, we may need to source alternative ways to increase our liquidity. Such alternatives may include, without limitation, curtailing development activity, disposing of one or more of our properties possibly on disadvantageous terms or entering into or renewing leases on less favorable terms than we otherwise would.

Rental income . The amount of rental income generated by the properties in our portfolio depends on several factors, including our ability to maintain or improve the occupancy rates of currently leased space and to lease currently available space and space available from lease terminations. Excluding approximately 1.8 million square feet of space under active development and approximately 1.3 million square feet of space held for future development as of December 31, 2013, the occupancy rate of the properties in our portfolio, including the 12 properties held as investments in unconsolidated joint ventures, was approximately 92.6% of our net rentable square feet.

As of December 31, 2013, we had 2,263 leases with a total of 655 tenants in our portfolio, including the ten properties held in our managed portfolio of unconsolidated joint ventures. As of December 31, 2013, approximately 88% of our leases (on a rentable square footage basis) contained base rent escalations that were either fixed (generally ranging from 2% to 4%) or indexed based on a consumer price index or other similar inflation related index. We cannot assure you that these escalations will cover any increases in our costs or will otherwise keep rental rates at or above market rates.

The amount of rental income generated by us also depends on maintaining or increasing rental rates at our properties, which in turn depends on several factors, including supply and demand and market rates for data center space. Included in our approximately 19.9 million net rentable square feet, excluding space under active development and space held for future development and 12 properties held as investments in unconsolidated joint

 

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ventures, at December 31, 2013 is approximately 676,000 square feet of datacenter space with extensive installed tenant improvements available for lease. Since our IPO, we have leased approximately 4.5 million square feet of similar space, including Turn-Key Flex ® space. Our Turn-Key Flex ® product is an effective solution for tenants who prefer to utilize a partner with the expertise or capital budget to provide extensive datacenter infrastructure and security. Our expertise in datacenter construction and operations enables us to lease space to these tenants at a premium over other uses. In addition, as of December 31, 2013, we had approximately 1.8 million square feet of space under active development and approximately 1.3 million square feet of space held for future development, or approximately 13% of the total rentable space in our portfolio, including one vacant property comprising approximately 128,000 square feet and the 12 properties held as investments in unconsolidated joint ventures. Our ability to grow earnings depends in part on our ability to develop space and lease development space at favorable rates, which we may not be able to obtain. Development space requires significant capital investment in order to develop datacenter facilities that are ready for use and, in addition, we may require additional time or encounter delays in securing tenants for development space. We may purchase additional vacant properties and properties with vacant development space in the future. We will require additional capital to finance our development activities, which may not be available or may not be available on terms acceptable to us, including as a result of the conditions described above under “Global market and economic conditions.”

In addition, the timing between when we sign a new lease with a tenant and when that lease commences and we begin to generate rental income may be significant and may not be easily predictable. Certain leases may provide for staggered commencement dates for additional space, the timing of which may be delayed significantly.

Economic downturns, including as a result of the conditions described above under “Global market and economic conditions,” or regional downturns affecting our markets or downturns in the technology-related real estate industry that impair our ability to lease or renew or re-lease space, or otherwise reduce returns on our investments or the ability of our tenants to fulfill their lease commitments, as in the case of tenant bankruptcies, could adversely affect our ability to maintain or increase rental rates at our properties.

Scheduled lease expirations. Our ability to re-lease expiring space at rental rates equal to or in excess of current rental rates will impact our results of operations. In addition to approximately 1.6 million square feet of available space in our portfolio, which excludes approximately 1.8 million square feet of space under active development and approximately 1.3 million square feet of space held for future development as of December 31, 2013 and the two properties held as investments in our non-managed unconsolidated joint ventures, leases representing approximately 4.9% and 9.4% of the net rentable square footage of our portfolio are scheduled to expire during the years ending December 31, 2014 and 2015, respectively.

 

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During the year ended December 31, 2013, we signed new leases totaling approximately 1,315,000 square feet of space and renewal leases totaling approximately 1,343,000 square feet of space. The following table summarizes our leasing activity in the year ended December 31, 2013:

 

     Number
of
Leases (1)
     Rentable
Square
Feet (2)
     Expiring
Rates (3)
     New
Rates (3)
     Rental
Rate
Changes
    TI’s/Lease
Commissions
Per Square
Foot (4)
     Weighted
Average
Lease
Terms
(years)
 

Leasing Activity (5)

                   

Renewals Signed

                   

Turn-Key Flex

     24         373,585       $ 123.10       $ 129.54         5.2   $ 8.01         5.7   

Powered Base Building

     26         767,714       $ 34.87       $ 48.82         40.0   $ 9.27         16.0   

Colocation

     63         34,806       $ 177.10       $ 201.35         13.7   $ 29.17         4.2   

Non-technical

     37         166,608       $ 24.28       $ 28.02         15.4   $ 3.82         8.5   

New Leases Signed

                   

Turn-Key Flex

     60         694,302         —         $ 145.69         —        $ 50.82         8.2   

Powered Base Building

     6         73,363         —         $ 28.35         —        $ 6.21         10.9   

Custom Solutions

     17         311,395         —         $ 124.11         —        $ 21.85         12.5   

Colocation

     139         79,160         —         $ 189.75         —        $ 52.41         4.3   

Non-technical

     58         157,052         —         $ 27.69         —        $ 22.96         7.8   

Leasing Activity Summary

                   

Turn-Key Flex

     84         1,067,887         —         $ 140.04         —          —        

Powered Base Building

     32         841,077         —         $ 47.03         —          —        

Custom Solutions

     17         311,395         —         $ 124.11         —          —        

Colocation

     202         113,966         —         $ 193.29         —          —        

Non-technical

     95         323,660         —         $ 27.86         —          —        

 

(1) The number of leases represents the leased-unit count; a lease could include multiple units.
(2) For some of our properties, we calculate square footage based on factors in addition to contractually leased square feet, including power, required support space and common area.
(3) Rental rates represent annual estimated cash rent per rentable square foot adjusted for straight-line rents in accordance with GAAP. GAAP rental rates are inclusive of tenant concessions, if any.
(4) Excludes short term leases.
(5) Commencement dates for the leases signed range from 2013 to 2018.

Our ability to re-lease or renew expiring space at rental rates equal to or in excess of current rental rates will impact our results of operations. We continue to see strong demand in most of our key markets for datacenter space and, subject to the supply of available datacenter space in these markets, expect the rental rates we are likely to achieve on any new, re-leased or renewed datacenter space leases for 2014 expirations on an average aggregate basis will generally be higher than the rates currently being paid for the same space on a GAAP basis and flat on a cash basis. For the year ended December 31, 2013, rents on renewed space increased by an average of 5.2% on a GAAP basis on our Turn-Key Flex ® space compared to the expiring rents and increased by an average of 40.0% on a GAAP basis on our Powered Base Building ® space compared to the expiring rents. Our past performance may not be indicative of future results, and we cannot assure you that leases will be renewed or that our properties will be re-leased at all or at rental rates equal to or above the current average rental rates. Further, re-leased/renewed rental rates in a particular market may not be consistent with rental rates across our portfolio as a whole and may fluctuate from one period to another due to a number of factors, including local real estate conditions, local supply and demand for datacenter space, competition from other datacenter developers or operators, the condition of the property and whether the property, or space within the property, has been developed.

 

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Market concentration. We depend on the market for technology-based real estate in specific geographic regions and significant changes in these regional markets can impact our future results. As of December 31, 2013, our portfolio was geographically concentrated in the following metropolitan markets, including the 12 properties held as investments in unconsolidated joint ventures:

 

Metropolitan Market

   Percentage of
December 31, 2013
total annualized rent (1)
 

London, England

     12.0

Northern Virginia

     10.3

Dallas

     9.4

Silicon Valley

     9.2

New York Metro

     9.0

Chicago

     7.1

San Francisco

     6.8

Phoenix

     6.4

Boston

     4.3

Los Angeles

     3.5

Seattle

     3.0

Singapore

     2.8

Other

     16.2
  

 

 

 

Total

     100.0
  

 

 

 

 

(1) Annualized rent is monthly contractual rent (defined as cash base rent before abatements) under existing leases as of December 31, 2013 multiplied by 12. The aggregate amount of abatements for the year ended December 31, 2013 was approximately $33.3 million.

Operating expenses. Our operating expenses generally consist of utilities, property and ad valorem taxes, property management fees, insurance and site maintenance costs, as well as rental expenses on our ground and building leases. In particular, our buildings require significant power to support the datacenter operations contained in them. Many of our leases contain provisions under which the tenants reimburse us for a portion of property operating expenses and real estate taxes incurred by us. However, we generally are not entitled to reimbursement of property operating expenses, other than utility expense, and real estate taxes under our leases for Turn-Key Flex ® facilities. We also incur general and administrative expenses, including expenses relating to our asset management function, as well as significant legal, accounting and other expenses related to corporate governance, SEC reporting and compliance with the various provisions of the Sarbanes-Oxley Act. Increases or decreases in such operating expenses will impact our overall performance. We expect to incur additional operating expenses as we continue to expand.

Climate change legislation. In June 2009, the U.S. House of Representatives approved comprehensive clean energy and climate change legislation intended to cut greenhouse gas, or GHG, emissions, create new clean energy jobs and enhance the energy independence of the United States, which included a cap-and-trade program for GHG emissions. The U.S. Senate did not subsequently pass similar legislation. New climate change legislation was introduced in the U.S. Senate in 2013, but significant opposition to federal climate change legislation exists. As a result, near-term action to reduce GHG emissions likely will be focused on regulatory agencies, primarily the U.S. Environmental Protection Agency, or EPA, and state actions. The EPA has been moving aggressively to regulate GHG emissions from automobiles and large stationary sources, including electricity producers, using its own authority under the Clean Air Act. The EPA made an endangerment finding in 2009 that allows it to create regulations imposing emission reporting, permitting, control technology installation, and monitoring requirements applicable to certain emitters of GHGs, including facilities that provide electricity to our data centers, although the materiality of the impacts will not be known until all regulations are finalized.

 

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The EPA has already finalized its GHG “reporting rule,” which requires that certain emitters, including electricity generators, monitor and report GHG emissions. The EPA has also finalized its “tailoring rule,” which imposes permitting and control technology requirements upon certain newly-constructed or modified facilities which emit GHGs under the Clean Air Act New Source Review Prevention of Significant Deterioration, or NSR PSD, and Title V permitting programs. As a result, newly-issued NSR PSD or Title V permits for new or modified electricity generating and other facilities may need to address GHG emissions, including by requiring the installation of Best Available Control Technology. Some of those regulations have been finalized and currently are in litigation. Courts have rejected certain legal challenges to the endangerment finding, the tailoring rule, and other regulations but other legal challenges are pending. In addition, the EPA proposed in April 2012 a rule that would set a GHG emission standard applicable to new electricity generating units, and the EPA re-proposed the rule in September 2013. The Obama Administration issued a plan in June 2013 under which the EPA is to issue a final rule by 2015 regulating GHG emissions from existing electricity generating units. At the state level, California implemented a GHG cap-and-trade program that began imposing compliance obligations on industrial sectors, including electricity generators and importers, in January 2013. In addition, since 2005 the European Union (including the United Kingdom) has been operating under a cap-and-trade program, which directly affects the largest emitters of GHGs, including electricity producers from whom we purchase power.

The cost of electric power comprises a significant component of our operating expenses. Any additional taxation or regulation of energy use, including as a result of (i) new legislation that Congress may pass, (ii) the regulations that the EPA has proposed or finalized, (iii) regulations under legislation that states have passed or may pass, or (iv) any further reductions in the EU program could significantly increase our costs, and we may not be able to effectively pass all of these costs on to our tenants. These matters could adversely impact our business, results of operations, or financial condition.

Interest rates . As of December 31, 2013, we had approximately $560.9 million of variable rate debt subject to interest rate swap agreements on certain tranches of our unsecured term loan, along with $724.7 million and $460.0 million of variable rate debt that was outstanding on the global revolving credit facility and the unswapped portion of the unsecured term loan, respectively. The availability of debt and equity capital may decrease as a result of the circumstances described above under “Global market and economic conditions.” The effects on commercial real estate mortgages, if available, include, but may not be limited to: higher loan spreads, tightened loan covenants, reduced loan to value ratios resulting in lower borrower proceeds and higher principal payments. Potential future increases in interest rates and credit spreads may increase our interest expense and fixed charges and negatively affect our financial condition and results of operations, potentially impacting our future access to the debt and equity capital markets. Increased interest rates may also increase the risk that the counterparties to our swap agreements will default on their obligations, which could further increase our interest expense. If we cannot obtain capital from third party sources, we may not be able to acquire or develop properties when strategic opportunities exist, satisfy our debt service obligations or pay the cash dividends to Digital Realty Trust, Inc.’s stockholders necessary to maintain its qualification as a REIT.

Demand for datacenter space . Our portfolio of properties consists primarily of technology-related real estate and datacenter real estate in particular. A decrease in the demand for, or increase in supply of, datacenter space, Internet gateway facilities or other technology-related real estate would have a greater adverse effect on our business and financial condition than if we owned a portfolio with a more diversified tenant base or less specialized use. Over the past two years, we have made a significant investment in building out additional inventory primarily in what we anticipate will be our active major markets prior to having executed leases with respect to this space. We believe that demand continues to exceed supply in most markets in which we operate, particularly in Northern Virginia, Dallas, Amsterdam and London, whereas we anticipate that our Silicon Valley market may be at risk of significant over-supply. However, until this inventory is leased up, which will depend on a number of factors, including available datacenter space in these markets, our return on invested capital is negatively impacted. Our development activities make us particularly susceptible to general economic slowdowns, including recessions and the other circumstances described above under “Global market and economic conditions,” as well as adverse developments in the corporate datacenter, Internet and data communications and broader technology industries. Any such slowdown or adverse development could lead to reduced corporate IT spending or reduced demand for

 

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datacenter space. Reduced demand could also result from business relocations, including to markets that we do not currently serve. Changes in industry practice or in technology, such as virtualization technology, more efficient computing or networking devices, or devices that require higher power densities than today’s devices, could also reduce demand for the physical datacenter space we provide or make the tenant improvements in our facilities obsolete or in need of significant upgrades to remain viable. In addition, the development of new technologies, the adoption of new industry standards or other factors could render many of our tenants’ current products and services obsolete or unmarketable and contribute to a downturn in their businesses, thereby increasing the likelihood that they default under their leases, become insolvent or file for bankruptcy. In addition, demand for datacenter space in our properties, or the rates at which we lease space, may be adversely impacted either across our portfolio or in specific markets as a result of an increase in the number of competitors, or the amount of space being offered in our markets and other markets by our competitors.

Critical Accounting Policies

Our discussion and analysis of our financial condition and results of operations are based upon our consolidated financial statements, which have been prepared in accordance with U.S. generally accepted accounting principles, or GAAP. The preparation of these financial statements in conformity with GAAP requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amount of revenues and expenses in the reporting period. Our actual results may differ from these estimates. We have provided a summary of our significant accounting policies in note 2 to our consolidated financial statements included elsewhere in this report. We describe below those accounting policies that require material subjective or complex judgments and that have the most significant impact on our financial condition and consolidated results of operations. Our management evaluates these estimates on an ongoing basis, based upon information currently available and on various assumptions management believes are reasonable as of the date on the front cover of this report.

Investments in Real Estate

Acquisition of real estate. The price that we pay to acquire a property is impacted by many factors including the condition of the property and improvements, the occupancy of the building, the term and rate of in place leases, the creditworthiness of the tenants, favorable or unfavorable financing, above or below market ground leases and numerous other factors.

Accordingly, we are required to make subjective assessments to allocate the purchase price paid to acquire investments in real estate among the identifiable assets including intangibles and liabilities assumed based on our estimate of the fair value of such assets and liabilities. This includes determining the value of the property and improvements, land, ground leases, if any, and tenant improvements. Additionally, we evaluate the value of in-place leases on occupancy and market rent, the value of the tenant relationships, the value (or negative value) of above (or below) market leases, any debt or deferred taxes assumed from the seller or loans made by the seller to us and any building leases assumed from the seller. Each of these estimates requires a great deal of judgment and some of the estimates involve complex calculations. These allocation assessments have a direct impact on our results of operations. For example, if we were to allocate more value to land, there would be no depreciation with respect to such amount. If we were to allocate more value to the property as opposed to allocating to the value of in-place tenant leases, this amount would be recognized as an expense over a much longer period of time. This potential effect occurs because the amounts allocated to property are depreciated over the estimated lives of the property whereas amounts allocated to in-place tenant leases are amortized over the estimated term (including renewal and extension assumptions) of the leases. Additionally, the amortization of the value (or negative value) assigned to above (or below) market rate leases is recorded as an adjustment to rental revenue as compared to amortization of the value of in-place tenant leases and tenant relationships, which is included in depreciation and amortization in our consolidated statements of operations.

Capitalization of Costs. Direct and indirect project costs that are clearly associated with the development of properties are capitalized as incurred. Project costs include all costs directly associated with the development of a

 

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property, including construction costs, interest, property taxes, insurance, legal fees and costs of personnel working on the project. Indirect costs that do not clearly relate to the projects under development are not capitalized and are charged to expense as incurred.

Capitalization of costs begins when activities, including development of plans, process of obtaining permits from governmental authorities and physical construction that are necessary to get the asset ready for its intended use are in progress and costs have been incurred. Capitalization of costs ceases when the development project is substantially complete and ready for its intended use. Determining when a development project commences, and when it is substantially complete and ready for its intended use involves a degree of judgment. We generally consider a development project to be substantially complete and ready for its intended use upon receipt of a certificate of occupancy. We cease cost capitalization if activities necessary for the development of the property have been suspended. Capitalized costs are allocated to the specific components of a project that are benefited.

During the second quarter of 2013, in accordance with GAAP, we refined our capitalization practice related to operating expenditures which could have been capitalized, but had been expensed. Previously, operating expenditures totaling $10,000 or less that could have been capitalized had been expensed as incurred for efficiency purposes. Under our refined capitalization practice, retrospective to January 1, 2013, such expenses are now capitalized. Additionally, we conformed the construction period completion date, which is when capitalization of construction period operating costs ceases, with our construction period interest capitalization policy. Previously, capitalization of construction period operating costs ceased upon the commissioning date. Retrospective to January 1, 2013, capitalization of construction period operating costs now ceases on receipt of the certificate of occupancy, among other factors. During the year ended December 31, 2013, the total incremental amounts capitalized that would have been recorded as rental property operating expense under our previous policies was approximately $9.5 million.

Useful lives of assets. We are required to make subjective assessments as to the useful lives of our properties for purposes of determining the amount of depreciation to record on an annual basis with respect to our investments in real estate. These assessments have a direct impact on our net income because if we were to shorten the expected useful lives of our investments in real estate we would depreciate such investments over fewer years, resulting in more depreciation expense and lower net income on an annual basis.

Asset impairment evaluation. We review each of our properties for indicators that its carrying amount may not be recoverable. Examples of such indicators may include a significant decrease in the market price of the property, a significant adverse change in the extent or manner in which the property is being used in its physical condition or expected to be used based on the underwriting at the time of acquisition, an accumulation of costs significantly in excess of the amount originally expected for the acquisition or development of the property, or a history of operating or cash flow losses of the property. When such impairment indicators exist, we review an estimate of the future undiscounted net cash flows (excluding interest charges) expected to result from the real estate investment’s use and eventual disposition and compare that estimate to the carrying value of the property. We consider factors such as future operating income, trends and prospects, as well as the effects of leasing demand, competition and other factors. If our future undiscounted net cash flow evaluation indicates that we are unable to recover the carrying value of a real estate investment, an impairment loss is recorded to the extent that the carrying value exceeds the estimated fair value of the property. These losses have a direct impact on our net income because recording an impairment loss results in an immediate negative adjustment to net income. The evaluation of anticipated cash flows is highly subjective and is based in part on assumptions regarding future occupancy, rental rates and capital requirements that could differ materially from actual results in future periods. Since cash flows on properties considered to be long-lived assets to be held and used are considered on an undiscounted basis to determine whether the carrying value of a property is recoverable, our strategy of holding properties over the long-term directly decreases the likelihood of their carrying values not being recoverable and therefore requiring the recording of an impairment loss. If our strategy changes or market conditions otherwise dictate an earlier sale date, an impairment loss may be recognized and such loss could be material. If we determine that the asset fails the recoverability test, the affected assets must be reduced to their fair value. No such impairment losses have been recognized to date.

 

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We generally estimate the fair value of rental properties utilizing a discounted cash flow analysis that includes projections of future revenues, expenses and capital improvement costs that a market participant would use based on the highest and best use of the asset, which is similar to the income approach that is commonly utilized by appraisers.

Revenue Recognition

Rental revenue is recognized using the straight-line method over the terms of the tenant leases. Deferred rents included in our consolidated balance sheets represent the aggregate excess of rental revenue recognized to date on a straight-line basis versus the contractual rental payments under the terms of the leases. Many of our leases contain provisions under which the tenants reimburse us for a portion of property operating expenses and real estate taxes incurred by us. However, we generally are not entitled to reimbursement of property operating expenses, other than utility expense, and real estate taxes under our leases for Turn-Key Flex ® facilities. Such reimbursements are recognized in the period that the expenses are incurred. Lease termination fees are recognized over the remaining term of the lease, effective as of the date the lease modification is finalized, assuming collection is not considered doubtful. As discussed above, we recognize amortization of the value of acquired above or below market tenant leases as a reduction of rental revenue in the case of above market leases or an increase to rental revenue in the case of below market leases.

We must make subjective estimates as to when our revenue is earned and the collectability of our accounts receivable related to minimum rent, deferred rent, expense reimbursements, lease termination fees and other income. We specifically analyze accounts receivable and historical bad debts, tenant concentrations, tenant creditworthiness and current economic trends when evaluating the adequacy of the allowance for bad debts. These estimates have a direct impact on our net income because a higher bad debt allowance would result in lower net income, and recognizing rental revenue as earned in one period versus another would result in higher or lower net income for a particular period.

Share-Based Awards

We recognize compensation expense related to share-based awards. We generally amortize this compensation expense over the vesting period of the award. The calculation of the fair value of share-based awards is subjective and requires several assumptions over such items as expected stock volatility, dividend payments and future company results. These assumptions have a direct impact on our net income because a higher share-based awards amount would result in lower net income for a particular period.

Results of Operations

The discussion below relates to our financial condition and results of operations for the years ended December 31, 2013, 2012 and 2011. A summary of our operating results from continuing operations for the years ended December 31, 2013, 2012 and 2011 was as follows (in thousands).

 

     Year Ended December 31,  
     2013     2012     2011  

Income Statement Data:

      

Total operating revenues

   $ 1,482,259      $ 1,279,067      $ 1,062,710   

Total operating expenses

     (1,100,447     (912,989     (758,400
  

 

 

   

 

 

   

 

 

 

Operating income

     381,812        366,078        304,310   

Other expenses, net

     (61,363     (150,031     (142,184
  

 

 

   

 

 

   

 

 

 

Net income

   $ 320,449      $ 216,047      $ 162,126   
  

 

 

   

 

 

   

 

 

 

Our property portfolio has experienced consistent and significant growth since the first property acquisition in January 2002. As a result of this growth, our period-to-period comparison of our financial performance

 

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focuses on the impact on our revenues and expenses resulting both from the new property additions to our portfolio, as well as on a “same store” property basis (new properties are properties that were acquired after December 31, 2011 along with the nine properties that were contributed to our joint venture with the PREI ® -managed fund in September 2013). The following table identifies each of the properties in our portfolio acquired from January 1, 2011 through December 31, 2013.

 

Acquired Buildings

  Acquisition
Date
    Space under
active
development
as of
December 31,
2013 (1)
    Space held
for future
development
as of
December 31,
2013 (1)
    Net rentable
square feet
excluding
development
space (2)
    Square feet
including
development
space
    Occupancy
rate as of
December 31,
2013 (3)
 

As of December 31, 2010 (99 properties) (4)

      674,946        782,140        16,467,017        17,924,103        91.4

Year Ended December 31, 2011

           

43830 Devin Shafron Drive (4)

    Mar-11        —          11,950       101,300       113,250       95.6  

43940 Digital Loudoun Plaza

    Apr-11        232,704       —          160,007       392,711       100.0  

44060 Digital Loudoun Plaza

    Apr-11        281,431       —          —          281,431       —     

43790 Devin Shafron Drive (4)

    Jun-11        —          —          152,138       152,138       100.0  

1-23 Templar Road (5)

    Jul-11        —          47,061       39,156       86,217       69.8  

Fountain Court

    Jul-11        —          89,814       41,957       131,771       27.2  

98 Radnor Drive (5)

    Aug-11        —          —          52,988       52,988       100.0  

72 Radnor Drive

    Aug-11        93,582       —          —          93,582       —     

3825 NW Aloclek Place (5)

    Aug-11        —          —          48,574       48,574       100.0  

11085 Sun Center Drive

    Sep-11        —          —          69,048       69,048       100.0  

21551 Beaumeade Circle (6)

    Dec-11        —          —          152,504       152,504       100.0  

1506 Moran Road

    Dec-11        —          —          78,295       78,295       100.0  

760 Doug Davis Drive

    Dec-11        —          —          334,306       334,306       100.0  

360 Spear Street

    Dec-11        —          —          154,950       154,950       100.0  
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Subtotal

      654,809       148,825       1,436,223       2,239,857       96.7 

Year Ended December 31, 2012

           

Convergence Business Park

    Feb-12        —          —          829,372       829,372       98.5  

9333, 9355, 9377 Grand Avenue

    May-12        289,220       176,886       108,838       574,944       81.5  

8025 North Interstate 35

    May-12        —          —          62,237       62,237       100.0  

400 S. Akard Street

    Jun-12        —          —          269,563       269,563       94.4  

33 Chun Choi Street (7)

    Jun-12        —          —          —          —          —     

Unit B Prologis Park

    Jul-12        —          —          120,000       120,000       100.0  

The Chess Building

    Jul-12        —          —          133,000       133,000       97.3  

Unit 21 Goldworth Park Trading Estate

    Jul-12        —          93,719       386,281       480,000       96.7  

410 Commerce Boulevard

    Jul-12        —          —          27,943       27,943       100.0  

11900 East Cornell Avenue

    Sep-12        —          —          285,840       285,840       94.3  

701 Union Boulevard (8)

    Nov-12        —          —          —          —          —     

23 Waterloo Rd

    Dec-12        —          —          51,990       51,990       100.0  

1 Rue Jean-Pierre

    Dec-12        —          —          104,666       104,666       100.0  

Liet-dit ie Christ de Saclay

    Dec-12        —          —          21,337       21,337       100.0  

127 Rue de Paris

    Dec-12        —          —          59,991       59,991       100.0  
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Subtotal

      289,220       270,605       2,461,058       3,020,883       96.8 

Year Ended December 31, 2013

           

17201 Waterview Parkway

    Jan-13        —          —          61,750       61,750       100.0  

1900 S. Price Road

    Jan-13        —          108,926       118,348       227,274       100.0  

371 Gough Road

    Mar-13        34,306       21,189       64,546       120,041       100.0  

1500 Towerview Road

    Mar-13        —          —          328,765       328,765       100.0  

MetCenter Business Park

    May-13        —          —          336,695       336,695       100.0  

Liverpoolweg 10

    Jun-13        —          —          16,813       16,813       100.0  

Principal Park

    Sep-13        106,400       —          —          106,400       —     

636 Pierce Street

    Dec-13        —          —          108,336       108,336       100.0  
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Subtotal

      140,706       130,115       1,035,253       1,306,074       100.0 
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

      1,759,681       1,331,685       21,399,551       24,490,917       92.6 
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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(1) Space under active development includes current base building and data center projects in progress. Space held for future development includes space held for future data center development, and excludes space under active development.
(2) Net rentable square feet at a building represents the current square feet at that building under lease as specified in the lease agreements plus management’s estimate of space available for lease based on engineering drawings. Net rentable square feet includes tenants’ proportional share of common areas but excludes development space.
(3) Occupancy rates exclude development space. For some of our properties, we calculate occupancy based on factors in addition to contractually leased square feet, including available power, required support space and common area.
(4) Includes three developed buildings (43915 Devin Shafron Drive, 43830 Devin Shafron Drive and 43790 Devin Shafron Drive) placed into service in 2010 and 2011 that are being included with a property (Devin Shafron buildings) that was acquired in 2007.
(5) Includes three developed buildings (1-23 Templar Road, 98 Radnor Drive and 3825 NW Aloclek Place) placed into service and included in our property count in 2012 that were acquired in 2011.
(6) Includes a developed building (21551 Beaumeade Circle) placed into service in 2011 that is being included with a property (21561 & 21571 Beaumeade Circle) that was acquired in 2009.
(7) Represents a land parcel that is included as a property held in an unconsolidated joint venture.
(8) Represents a land parcel, which previously was reported as having 271,000 square feet of space held for future development. The building was razed pursuant to our business plan. Included as a property in our operating property count.

Comparison of the Year Ended December 31, 2013 to the Year Ended December 31, 2012 and Comparison of the Year Ended December 31, 2012 to the Year Ended December 31, 2011

Portfolio

As of December 31, 2013, our portfolio consisted of 131 properties, including 12 properties held as investments in unconsolidated joint ventures and developable land, with an aggregate of 24.5 million rentable square feet including 1.8 million square feet of space under active development and 1.3 million square feet of space held for future development compared to a portfolio consisting of 124 properties, including three properties held as investments in unconsolidated joint ventures and developable land, with an aggregate of 23.3 million rentable square feet including 1.4 million square feet of space under active development and 2.0 million square feet of space held for future development as of December 31, 2012 and a portfolio consisting of 109 properties, including three properties held as investments in unconsolidated joint ventures and developable land, with an aggregate of 18.7 million rentable square feet including 1.2 million square feet of space under active development and 1.6 million square feet of space held for future development as of December 31, 2011. The increase in our portfolio reflects the acquisition of 10 properties in 2011 (in addition, two properties were placed into service in 2011 in which the land parcel was acquired prior to January 1, 2011), 15 properties in 2012 (in addition, three properties were placed into service in 2012 in which the land parcel was acquired prior to January 1, 2012) and 7 properties in 2013 (in addition, one property was placed into service in 2013 in which the land parcel was acquired prior to January 1, 2013).

Revenues

Total operating revenues for the years ended December 31, 2013, 2012 and 2011 were as follows (in thousands):

 

    Year Ended December 31,     Change     Percentage Change  
    2013     2012     2011     2013 vs 2012     2012 vs 2011     2013 vs 2012     2012 vs 2011  

Rental

  $ 1,155,051      $ 990,715      $ 820,711      $ 164,336      $ 170,004        16.6     20.7

Tenant reimbursements

    323,286        272,309        211,811        50,977        60,498        18.7     28.6

Fee income

    3,520        8,428        29,286        (4,908     (20,858     (58.2 %)      (71.2 %) 

Other

    402        7,615        902        (7,213     6,713        (94.7 %)      744.2
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total operating revenues

  $ 1,482,259      $ 1,279,067      $ 1,062,710      $ 203,192      $ 216,357        15.9     20.4
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

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As shown by the same store and new properties table below, the increases in rental revenues and tenant reimbursement revenues in the year ended December 31, 2013 compared to 2012 were due to new leasing at our same store properties, including completed and leased development space, and acquisitions of properties. Other revenues changes in the periods presented were primarily due to tenant termination revenues. We acquired [7], 13 and 5 properties during the years ended December 31, 2013, 2012 and 2011, respectively.

 

     Same Store
Year Ended December 31,
    New Properties
Year Ended December 31,
 
     2013      2012      Change     2013      2012      Change  

Rental

   $ 979,531       $ 895,981       $ 83,550      $ 175,520       $ 94,734       $ 80,786   

Tenant reimbursements

     262,222         239,943         22,279        61,064         32,366         28,698   

Fee income

     —           —           —          3,520         8,428         (4,908

Other

     262         7,615         (7,353     140         —           140   
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

    

 

 

 

Total operating revenues

   $ 1,242,015       $ 1,143,539       $ 98,476      $ 240,244       $ 135,528       $ 104,716   
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

    

 

 

 

Same store rental revenues increased for the year ended December 31, 2013 compared to the same period in 2012 primarily as a result of new leases at our properties during 2013, including leases of completed development space, the largest of which were for space in 29A International Business Park, 43940 Digital Loudoun Plaza, 98 Radnor Drive and 3825 NW Aloclek Place. Same store growth was driven by the delivery of approximately 585,000 square feet of leased data center space from within our same store development platform during the last 12 months. In our same store portfolio, we calculate the change in rental rates on renewals signed during the quarter as compared to the previous rent on that same space. During the twelve months ended December 31, 2013, the percentage increase was [16.7%] on a GAAP basis. Same store rental revenues increased for the year ended December 31, 2013 as compared to the same period in 2012 as a result of the increase in rentable square feet of leased data center space. During the twelve months ended December 31, 2013, we also delivered approximately 119,000 square feet of un-leased data center space which was one of the drivers impacting occupancy which decreased slightly to 92.6% as of December 31, 2013 from [93.2%] as of December 31, 2012. Rental revenue included amounts earned from leases with The tel(x) Group, Inc., or tel(x), which was sold to an unrelated third party in 2011, of approximately $48.6 million and $45.7 million for the year ended December 31, 2013 and 2012, respectively. Same store tenant reimbursement revenues increased for the year ended December 31, 2013 as compared to the same period in 2012 primarily as a result of new leasing and higher utility and operating expenses being billed to our tenants, the largest occurrences of which were at 29A International Business Park, 365 South Randolphville Road and 350 East Cermak Road.

New properties revenue increases were due to the addition of properties acquired during the period from January 1, 2012 to December 31, 2012. For the year ended December 31, 2013, the Sentrum Portfolio, the Paris Portfolio and 400 S. Akard contributed $90.7 million, or approximately 83%, of the new properties increase in rental revenues and tenant reimbursements compared to the same period in 2012.

 

     Same Store
Year Ended December 31,
     New Properties
Year Ended December 31,
 
     2012      2011      Change      2012      2011      Change  

Rental

   $ 899,318       $ 819,251       $ 80,067       $ 91,397       $ 1,460       $ 89,937   

Tenant reimbursements

     235,202         211,425         23,777         37,107         386         36,721   

Fee income

     —           —           —           8,428         29,286         (20,858

Other

     7,615         902         6,713         —           —           —     
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total operating revenues

   $ 1,142,135       $ 1,031,578       $ 110,557       $ 136,932       $ 31,132       $ 105,800   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Same store rental revenues increased for the year ended December 31, 2012 compared to the same period in 2011 primarily as a result of new leases at our properties during 2012 due to strong demand for datacenter space, including leases of completed development space, the largest of which was for space in 29A International

 

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Business Park, 4030-4050 Lafayette and 4849 Alpha Road. Rental revenue included amounts earned from leases with tel(x) of approximately $45.7 million and $42.5 million for the year ended December 31, 2012 and 2011, respectively. Same store tenant reimbursement revenues increased for the year ended December 31, 2012 as compared to the same period in 2011 primarily as a result of new leasing and higher utility and operating expenses being billed to our tenants, the largest occurrences of which were at 29A International Business Park, 350 East Cermak Road, 1100 Space Park Drive and Paul van Vlissingenstraat 16.

New properties revenue increases were due to the addition of properties acquired during the period from January 1, 2011 to December 31, 2012. For the year ended December 31, 2012, the Sentrum Portfolio, Convergence Business Park, 760 Doug Davis Drive and 360 Spear Street contributed $109.3 million, or approximately 86%, of the new properties increase in rental revenues and tenant reimbursements compared to the same period in 2011. Fee income was significantly higher in 2011 due to a contract in which the majority of the work was performed in 2011. The contract was completed in early 2012.

Operating Expenses and Interest Expense

Operating expenses and interest expense during the years ended December 31, 2013, 2012 and 2011 were as follows (in thousands):

 

    Year Ended December 31,     Change     Percentage Change  
    2013     2012     2011     2013 vs 2012     2012 vs 2011     2013 vs 2012     2012 vs 2011  

Rental property operating and maintenance

  $ 454,834      $ 380,176      $ 307,922      $ 74,658      $ 72,254        19.6     23.5

Property taxes

    90,321        69,475        49,946        20,846        19,529        30.0     39.1

Insurance

    8,743        9,600        8,024        (857     1,576        (8.9 %)      19.6

Construction management

    764        1,596        22,715        (832     (21,119     (52.1 %)      (93.0 %) 

Depreciation and amortization

    475,464        382,553        310,425        92,911        72,128        24.3     23.2

General and administrative

    65,653        57,209        53,624        8,444        3,585        14.8     6.7

Transactions

    4,605        11,120        5,654        (6,515     5,466        (58.6 %)      96.7

Other

    63        1,260        90        (1,197     1,170        (95.0 %)      1300.0
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

  $ 1,100,447      $ 912,989      $ 758,400      $ 187,458      $ 154,589        20.5     20.4
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Interest expense

  $ 189,399      $ 157,108      $ 149,350      $ 32,291      $ 7,758        20.6     5.2
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

As shown in the same store and new properties table below, total expenses for the year ended December 31, 2013 increased compared to the same period in 2012 primarily as a result of higher utility rates in several of our properties along with development projects being placed into service leading to higher utility expense (included in rental property operating and maintenance) in 2013. The following table shows expenses for new properties (properties that were acquired after December 31, 2011) and same store properties (all other properties) (in thousands).

 

     Same Store     New Properties  
     Year Ended December 31,     Year Ended December 31,  
     2013      2012      Change     2013      2012      Change  

Rental property operating and maintenance

   $ 396,908       $ 352,077       $ 44,831      $ 57,926       $ 28,099       $ 29,827   

Property taxes

     76,996         62,089         14,907        13,325         7,386         5,939   

Insurance

     7,535         8,235         (700     1,208         1,365         (157

Construction management (1)

     —           —           —          764         1,596         (832

Depreciation and amortization

     397,917         343,154         54,763        77,547         39,399         38,148   

General and administrative (2)

     65,653         57,209         8,444        —           —           —     

Transactions (3)

     —           —           —          4,605         11,120         (6,515

Other

     63         1,260         (1,197     —           —           —     
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

    

 

 

 

Total operating expenses

   $ 945,072       $ 824,024       $ 121,048      $ 155,375       $ 88,965       $ 66,410   
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

    

 

 

 

Interest expense (4)

   $ 160,982       $ 153,264       $ 7,718      $ 28,417       $ 3,844       $ 24,573   
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

    

 

 

 

 

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(1) Construction management expenses are included entirely in new properties as they are not allocable to specific properties.
(2) General and administrative expenses are included entirely in same store as they are not allocable to specific properties.
(3) Transactions expenses are included entirely in new properties as they are not allocable to specific properties.
(4) Interest expense on our global revolving credit facility and unsecured term loan is allocated on a specific property basis.

Same store rental property operating and maintenance expenses increased in the year ended December 31, 2013 compared to the same period in 2012 primarily as a result of higher consumption and utility rates in several of our properties along with development projects being placed into service leading to higher utility expense in 2013. In 2013, a non-cash $10.0 million straight-line rent expense adjustment was recorded in rental property operating and maintenance expenses related to a lease amendment executed in September 2010, $7.5 million of this amount related to prior years. This adjustment was deemed to be immaterial to both the current year and prior year financial statements taken as a whole.

Same store property taxes increased by approximately $14.9 million in the year ended December 31, 2013 compared to the same period in 2012, primarily as a result of additional property tax assessments in our Santa Clara, California and Texas properties.

Same store depreciation and amortization expense increased in the year ended December 31, 2013 compared to the same period in 2012, principally because of depreciation of development projects that were placed into service in late 2012 and during 2013.

General and administrative expenses for the year ended December 31, 2013 increased compared to the same period in 2013 primarily due to the growth of our company, which resulted in more employees, additional incentive compensation, and higher professional fees and marketing expenses.

Same store interest expense increased for the year ended December 31, 2013 as compared to the same period in 2012 primarily as a result of higher average balances on our unsecured term loan (originally closed in April 2012), offset by lower average outstanding mortgage debt balances during 2013 compared to 2012 primarily due to the paydown of the following loans: 114 Rue Ambroise Croizat (January 2012), Unit 9, Blanchardstown Corporate Park (January 2012), 1201 Comstock Street (April 2012), 2805 Lafayette Street (May 2012), 2805 Lafayette Street Mezzanine (May 2012), 1350 Duane Avenue/3080 Raymond Street (September 2012), Clonshaugh Industrial Estate II (June 2013), 1500 Space Park Drive (July 2013), Paul van Vlissingenstraat 16 (July 2013), Chemin de l’Epinglier 2 (July 2013), Mundells Roundabout (October 2013), Gyroscoopweg 2E-2F (October 2013) and 360 Spear Street (November 2013). During the years ended December 31, 2013 and 2012, we capitalized interest of approximately $26.3 million and $21.5 million, respectively.

New properties increases were caused by properties acquired during the period from January 1, 2012 to December 31, 2013. For the year ended December 31, 2013, the Sentrum Portfolio, 9333, 9355, 9377 Grand Avenue and 400 S. Akard contributed $56.3 million, or approximately 84%, of the total new properties increase in total operating expenses (excluding construction management) compared to the same period in 2012.

 

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Transactions expense decreased in the year ended December 31, 2013 compared to the same period in 2012, principally because of expenses related to the acquisitions of the Sentrum Portfolio and Paris Portfolio in 2012.

 

     Same Store     New Properties  
     Year Ended December 31,     Year Ended December 31,  
     2012      2011      Change     2012      2011      Change  

Rental property operating and maintenance

   $ 342,835       $ 307,347       $ 35,488      $ 37,341       $ 575       $ 36,766   

Property taxes

     62,745         49,732         13,013        6,730         214         6,516   

Insurance

     8,486         7,680         806        1,114         344         770   

Construction management (1)

     —           —           —          1,596         22,715         (21,119

Depreciation and amortization

     340,911         310,136         30,775        41,642         289         41,353   

General and administrative (2)

     57,209         53,624         3,585        —           —           —     

Transactions (3)

     —           —           —          11,120         5,654         5,466   

Other

     1,260         90         1,170        —           —           —     
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

    

 

 

 

Total operating expenses

   $ 813,446       $ 728,609       $ 84,837      $ 99,543       $ 29,791       $ 69,752   
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

    

 

 

 

Interest expense (4)

   $ 144,136       $ 149,085       $ (4,949   $ 12,972       $ 265       $ 12,707   
  

 

 

    

 

 

    

 

 

   

 

 

    

 

 

    

 

 

 

 

(1) Construction management expenses are included entirely in new properties as they are not allocable to specific properties.
(2) General and administrative expenses are included entirely in same store as they are not allocable to specific properties.
(3) Transactions expenses are included entirely in new properties as they are not allocable to specific properties.
(4) Interest expense on our global revolving credit facility and unsecured term loan is allocated on a specific property basis.

Same store rental property operating and maintenance expenses increased in the year ended December 31, 2012 compared to the same period in 2011 primarily as a result of higher consumption and utility rates in several of our properties along with development projects being placed into service leading to higher utility expense in 2012. We capitalized amounts relating to compensation expense of employees direct and incremental to construction and executed leasing activities of $31.6 million and $24.7 million for the years ended December 31, 2012 and 2011, respectively.

Same store depreciation and amortization expense increased in the year ended December 31, 2012 compared to the same period in 2011, principally because of depreciation of development projects that were placed into service in late 2011 and during 2012.

General and administrative expenses for the year ended December 31, 2012 increased compared to the same period in 2011 primarily due to the growth of our company, which resulted in more employees, additional incentive compensation, and higher professional fees and marketing expenses.

Same store interest expense decreased for the year ended December 31, 2012 as compared to the same period in 2011 primarily as a result of lower average outstanding mortgage debt balances during 2012 compared to 2011 primarily due to the paydown of the following loans: 114 Rue Ambroise Croizat (January 2012), Unit 9, Blanchardstown Corporate Park (January 2012), 1201 Comstock Street (April 2012), 2805 Lafayette Street (May 2012), 2805 Lafayette Street Mezzanine (May 2012) and 1350 Duane Avenue/3080 Raymond Street (September 2012). This decrease was partially offset by the issuance of our 3.625% Notes due 2022 (2022 Notes) in September 2012. During the years ended December 31, 2012 and 2011, we capitalized interest of approximately $21.5 million and $17.9 million, respectively.

New properties increases were caused by properties acquired during the period from January 1, 2011 to December 31, 2012. For the year ended December 31, 2012, the Sentrum Portfolio, Convergence Business Park

 

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and 760 Doug Davis Drive contributed $67.1 million, or approximately 74%, of the total new properties increase in total operating expenses (excluding construction management) compared to the same period in 2011. Construction management expense was significantly higher in 2011 due to a contract in which the majority of the work was performed in 2011. The contract was completed in early 2012.

Transactions expense increased in the year ended December 31, 2012 compared to the same period in 2011, principally because of expenses related to the acquisitions of the Sentrum Portfolio and Paris Portfolio in 2012.

Liquidity and Capital Resources of the Parent Company

In this “Liquidity and Capital Resources of the Parent Company” section and in the “Liquidity and Capital Resources of the Operating Partnership” section below, the term, our “parent company”, refers to Digital Realty Trust, Inc. on an unconsolidated basis, excluding our operating partnership.

Analysis of Liquidity and Capital Resources

Our parent company’s business is operated primarily through our operating partnership of which our parent company is the sole general partner and which it consolidates for financial reporting purposes. Because our parent company operates on a consolidated basis with our operating partnership, the section entitled “Liquidity and Capital Resources of the Operating Partnership” should be read in conjunction with this section to understand the liquidity and capital resources of our parent company on a consolidated basis and how our company is operated as a whole.

Our parent company issues public equity from time to time, but does not otherwise generate any capital itself or conduct any business itself, other than incurring certain expenses in operating as a public company which are fully reimbursed by the operating partnership. Our parent company itself does not hold any indebtedness other than guarantees of the indebtedness of our operating partnership and certain of its subsidiaries, and its only material asset is its ownership of partnership interests of our operating partnership. Therefore, the consolidated assets and liabilities and the consolidated revenues and expenses of our parent company and our operating partnership are the same on their respective financial statements, except for immaterial differences related to cash, other assets and accrued liabilities that arise from public company expenses paid by our parent company. However, all debt is held directly or indirectly at the operating partnership level. Our parent company’s principal funding requirement is the payment of dividends on its common and preferred shares. Our parent company’s principal source of funding for its dividend payments is distributions it receives from our operating partnership.

As the sole general partner of our operating partnership, our parent company has the full, exclusive and complete responsibility for our operating partnership’s day-to-day management and control. Our parent company causes our operating partnership to distribute such portion of its available cash as our parent company may in its discretion determine, in the manner provided in our operating partnership’s partnership agreement. Our parent company receives proceeds from its equity issuances from time to time, but is generally required by our operating partnership’s partnership agreement to contribute the proceeds from its equity issuances to our operating partnership in exchange for partnership units of our operating partnership.

Our parent company is a well-known seasoned issuer with an effective shelf registration statement filed on April 23, 2012 that allows our parent company to register unspecified various classes of equity securities. As circumstances warrant, our parent company may issue equity from time to time on an opportunistic basis, dependent upon market conditions and available pricing. Any proceeds from such equity issuances would be generally contributed to our operating partnership in exchange for additional equity interests in our operating partnership. Our operating partnership may use the proceeds to acquire additional properties, to fund development opportunities and for general working capital purposes, including potentially for the repurchase, redemption or retirement of outstanding debt or preferred securities.

 

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The liquidity of our parent company is dependent on our operating partnership’s ability to make sufficient distributions to our parent company. The primary cash requirement of our parent company is its payment of dividends to its stockholders. Our parent company also guarantees our operating partnership’s, as well as certain of its subsidiaries’ unsecured debt. If our operating partnership or such subsidiaries fail to fulfill their debt requirements, which trigger parent company guarantee obligations, then our parent company will be required to fulfill its cash payment commitments under such guarantees. However, our parent company’s only asset is its investment in our operating partnership.

We believe our operating partnership’s sources of working capital, specifically its cash flow from operations, and funds available under its global revolving credit facility are adequate for it to make its distribution payments to our parent company and, in turn, for our parent company to make its dividend payments to its stockholders. However, we cannot assure you that our operating partnership’s sources of capital will continue to be available at all or in amounts sufficient to meet its needs, including its ability to make distribution payments to our parent company. The lack of availability of capital could adversely affect our operating partnership’s ability to pay its distributions to our parent company, which would in turn, adversely affect our parent company’s ability to pay cash dividends to its stockholders.

On June 29, 2011, our parent company commenced an At-the-Market equity distribution program under which it can issue and sell up to $400.0 million of its common stock through, at its discretion, any of Merrill Lynch, Pierce Fenner & Smith Incorporated, Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and Morgan Stanley & Co. LLC as its sales agents. For the year ended December 31, 2012, our parent company generated net proceeds of approximately $62.7 million from the issuance of approximately 1.0 million shares of common stock under the program at an average price of $66.19 per share after payment of approximately $0.6 million of commissions to the sales agents. The proceeds from the issuances were contributed to our operating partnership in exchange for the issuance of approximately 1.0 million common units to our parent company. No sales were made under the program during the year ended December 31, 2013. The sales of common stock under the equity distribution program will be made in “at the market” offerings as defined in Rule 415 of the Securities Act. As of December 31, 2013, shares of common stock having an aggregate offering price of $53.8 million remained available for offer and sale under the program.

On January 18, 2013, Digital Stout Holding, LLC, a wholly-owned subsidiary of Digital Realty Trust, L.P., issued £400.0 million (or approximately $634.8 million based on the exchange rate of £1.00 to $1.59 on January 18, 2013) aggregate principal amount of its 4.250% Guaranteed Notes due 2025, or the 2025 notes. The 2025 Notes are senior unsecured obligations of Digital Stout Holding, LLC and are fully and unconditionally guaranteed by the parent company and our operating partnership. Interest on the 2025 notes is payable semiannually in arrears at a rate of 4.250% per annum. The net proceeds from the offering after deducting the original issue discount of approximately $4.8 million and underwriting commissions and estimated expenses of approximately $5.8 million was approximately $624.2 million. We used the net proceeds from this offering to temporarily repay borrowings under our global revolving credit facility.

Effective February 26, 2013, our parent company converted all outstanding shares of its series D preferred stock into shares of our parent company’s common stock in accordance with the terms of the series D preferred stock. Each share of series D preferred stock was converted into 0.6360 share of our parent company’s common stock. In connection with this conversion, our operating partnership issued 3,054,186 common units to our parent company upon conversion of 4,802,180 series D cumulative convertible preferred units. During the years ended December 31, 2013 and 2012, our operating partnership issued 3,139,615 and 1,297,675 common units, respectively, to our parent company upon conversion of 4,936,505 and 2,040,550 series D cumulative convertible preferred units.

On April 9, 2013, our parent company issued an aggregate of 10.0 million shares of its 5.875% series G cumulative redeemable preferred stock for total net proceeds, after underwriting discounts and estimated offering

 

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expenses, of $241.5 million, including the proceeds from the partial exercise of the underwriters’ over-allotment option. We used the net proceeds from the offering to temporarily repay borrowings under our global revolving credit facility.

On October 23, 2013, our parent company’s board of directors authorized a share repurchase program under which our parent company may repurchase up to $500.0 million of its outstanding common stock, which our parent company may use to opportunistically reacquire shares on the open market or in privately negotiated transactions or otherwise, based on the then-current share price and capital allocation alternatives. No repurchases were made under the program during the year ended December 31, 2013.

Future Uses of Cash

Our parent company may from time to time seek to retire, redeem or repurchase its preferred equity or the debt securities of our operating partnership through cash purchases and/or exchanges for equity securities in open market purchases, privately negotiated transactions or otherwise. Such repurchases, redemptions or exchanges, if any, will depend on prevailing market conditions, our liquidity requirements, contractual restrictions or other factors. The amounts involved may be material.

We are also subject to the commitments discussed below under “Dividends and Distributions.”

Dividends and Distributions

Our parent company is required to distribute 90% of its taxable income (excluding capital gains) on an annual basis in order for it to continue to qualify as a REIT for federal income tax purposes. Accordingly, our parent company intends to make, but is not contractually bound to make, regular quarterly distributions to its common stockholders from cash flow from our operating partnership’s operating activities. While historically our parent company has satisfied this distribution requirement by making cash distributions to its stockholders, it may choose to satisfy this requirement by making distributions of cash or other property. All such distributions are at the discretion of our parent company’s board of directors. Our parent company considers market factors and our operating partnership’s performance in addition to REIT requirements in determining distribution levels. Our parent company has distributed at least 100% of its taxable income annually since inception to minimize corporate level federal income taxes. Amounts accumulated for distribution to stockholders are invested primarily in interest-bearing accounts and short-term interest-bearing securities, which are consistent with our intention to maintain our parent company’s status as a REIT. The exchange rate on the operating partnership’s 5.50% exchangeable senior debentures due 2029 (2029 Debentures) is subject to adjustment for certain events, including, but not limited to, certain dividends on our parent company’s common stock in excess of $0.33 per share per quarter. Therefore, the declaration and payment of quarterly dividends by our parent company in excess of this threshold may increase the dilutive impact of the 2029 Debentures on our parent company’s common stockholders.

As a result of this distribution requirement, our operating partnership cannot rely on retained earnings to fund its on-going operations to the same extent that other companies whose parent companies are not REITs can. Our parent company may need to continue to raise capital in the debt and equity markets to fund our operating partnership’s working capital needs, as well as potential developments at new or existing properties, acquisitions or investments in existing or newly created joint ventures. In addition, our parent company may be required to use borrowings under our operating partnership’s global revolving credit facility, if necessary, to meet REIT distribution requirements and maintain our parent company’s REIT status.

 

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Our parent company has declared the following dividends on its common and preferred stock for the years ended December 31, 2013, 2012 and 2011 (in thousands):

 

Date dividend declared

  

Dividend payable date

   Series C
Preferred
Stock (1)
    Series D
Preferred
Stock (2)
    Series E
Preferred
Stock (3)
    Series F
Preferred
Stock (4)
    Series G
Preferred
Stock (5)
    Common
Stock
 

February 10, 2011

   March 31, 2011    $ 1,832      $ 4,690      $  —        $  —        $  —        $ 62,459 (6)  

April 25, 2011

   June 30, 2011      1,441        3,272        —          —          —          67,031 (6)  

July 25, 2011

   September 30, 2011      1,402        3,034        —          —          —          69,830 (6)  

October 24, 2011

   December 30, 2011 for Series C, D and E Preferred Stock; January 13, 2012 for Common Stock      1,402        2,398        5,926 (7)       —          —          72,092 (6)  
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
      $ 6,077      $ 13,394      $ 5,926      $  —        $  —        $ 271,412   
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

February 14, 2012

   March 30, 2012    $ 1,402      $ 2,398      $ 5,031      $  —        $  —        $ 78,335 (8)  

April 23, 2012

   June 29, 2012      —   (9)       2,394        5,031        2,888 (10)       —          80,478 (8)  

July 19, 2012

   September 28, 2012      —          1,723        5,031        3,023        —          89,679 (8)  

October 30, 2012

   December 31, 2012 for Series D, E and F Preferred Stock; January 15, 2013 for Common Stock      —          1,697        5,031        3,023        —          90,582 (8)  
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
      $ 1,402      $ 8,212      $ 20,124      $ 8,934      $  —        $ 339,074   
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

February 12, 2013

   March 29, 2013    $  —        $  —   (11)     $ 5,031      $ 3,023      $  —        $ 100,165 (12)  

May 1, 2013

   June 28, 2013      —          —          5,031        3,023        3,345 (13)       100,169 (12)  

July 23, 2013

   September 30, 2013      —          —          5,031        3,023        3,672        100,180 (12)  

October 23, 2013

   December 31, 2013 for Series E, F and G Preferred Stock; January 15, 2014 for Common Stock      —          —          5,031        3,023        3,672        100,187 (12)  
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
      $  —        $  —        $ 20,124      $ 12,092      $  10,689      $ 400,701   
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) $1.094 annual rate of dividend per share.
(2) $1.375 annual rate of dividend per share.
(3) $1.750 annual rate of dividend per share.
(4) $1.656 annual rate of dividend per share.
(5) $1.469 annual rate of dividend per share.
(6) $2.720 annual rate of dividend per share.
(7) Represents a pro rata dividend from and including the original issue date to and including December 31, 2011.
(8) $2.920 annual rate of dividend per share.
(9) Effective April 17, 2012, our parent company converted all outstanding shares of its series C preferred stock into shares of its common stock in accordance with the terms of the series C preferred stock. Each share of series C preferred stock was converted into 0.5480 share of our parent company’s common stock.
(10) Represents a pro rata dividend from and including the original issue date to and including June 30, 2012.
(11) Effective February 26, 2013, our parent company converted all outstanding shares of its series D preferred stock into shares of its of common stock in accordance with the terms of the series D preferred stock. Each share of series D preferred stock was converted into 0.6360 share of our parent company’s common stock.

 

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(12) $3.120 annual rate of dividend per share.
(13) Represents a pro rata dividend from and including the original issue date to and including June 30, 2012.

Distributions out of our parent company’s current or accumulated earnings and profits are generally classified as ordinary income whereas distributions in excess of our company’s current and accumulated earnings and profits, to the extent of a stockholder’s U.S. federal income tax basis in our parent company’s stock, are generally classified as a return of capital. Distributions in excess of a stockholder’s U.S. federal income tax basis in our parent company’s stock are generally characterized as capital gain. Cash provided by operating activities has been generally sufficient to fund distributions on an annual basis, however, we may also need to utilize borrowings under the global revolving credit facility to fund distributions.

The expected tax treatment of distributions paid on our parent company’s common and preferred stock paid in 2013 is as follows: approximately 75% ordinary income and 25% capital gain distribution. The tax treatment of distributions paid on our parent company’s common stock paid in 2012 was as follows: approximately 91% ordinary income, 8% return of capital and 1% capital gain distribution. The tax treatment of distributions paid on our parent company’s preferred stock paid in 2012 was as follows: approximately 99% ordinary income and 1% capital gain distribution. All distributions paid on our parent company’s common and preferred stock in 2011 were classified as ordinary income for income tax purposes.

Liquidity and Capital Resources of the Operating Partnership

In this “Liquidity and Capital Resources of the Operating Partnership” section, the terms “we”, “our” and “us” refer to our operating partnership together with its consolidated subsidiaries or our operating partnership and our parent company together with their consolidated subsidiaries, as the context requires.

Analysis of Liquidity and Capital Resources

Our parent company is our sole general partner and consolidates our results of operations for financial reporting purposes. Because we operate on a consolidated basis with our parent company, the section entitled “Liquidity and Capital Resources of the Parent Company” should be read in conjunction with this section to understand our liquidity and capital resources on a consolidated basis.

As of December 31, 2013, we had $56.8 million of cash and cash equivalents, excluding $40.4 million of restricted cash. Restricted cash primarily consists of interest-bearing cash deposits required by the terms of several of our mortgage loans for a variety of purposes, including real estate taxes, insurance, anticipated or contractually obligated tenant improvements, as well as capital expenditures.

Our short-term liquidity requirements primarily consist of operating expenses, development costs and other expenditures associated with our properties, distributions to our parent company in order for it to make dividend payments on its preferred stock, distributions to our parent company in order for it to make dividend payments to its stockholders required to maintain its REIT status, distributions to the unitholders in our operating partnership, capital expenditures, debt service on our loans and, potentially, acquisitions. We expect to meet our short-term liquidity requirements through net cash provided by operations, restricted cash accounts established for certain future payments and by drawing upon our global revolving credit facility.

On August 15, 2013, we refinanced our revolving credit facility, which we refer to as the global revolving credit facility, increasing its total borrowing capacity to $2.0 billion from $1.8 billion. The global revolving credit facility has an accordion feature that would enable us to increase the borrowing capacity of the credit facility to $2.55 billion, subject to the receipt of lender commitments and other conditions precedent. The refinanced facility matures on November 3, 2017, with two six-month extension options. The interest rate for borrowings under the expanded facility equals the applicable index plus a margin which is based on the credit rating of our long-term debt and is currently 110 basis points. An annual facility fee on the total commitment

 

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amount of the facility, based on the credit rating of our long-term debt and currently 20 basis points, is payable quarterly. Funds may be drawn in U.S., Canadian, Singapore, Australian and Hong Kong dollars, as well as Euro, British pound sterling, Swiss franc, Japanese yen and Mexican peso denominations. As of December 31, 2013, borrowings under the global revolving credit facility bore interest at an overall blended rate of 1.60% comprised of 1.27% (U.S. dollars), 1.33% (Euros), 3.70% (Australian dollars), 1.31% (Hong Kong dollars), 1.21% (Japanese yen) and 2.32% (Canadian dollars). The interest rates are based on 1-month LIBOR, 1-month GBP LIBOR, 1-month EURIBOR, 1-month BBR, 1-month HIBOR, 1-month JPY LIBOR and 1-month CDOR, respectively, plus a margin of 1.10%. The facility also bore a base borrowing rate of 3.35% (USD) which is based on U.S. Prime Rate plus a margin of 0.10%. We have used and intend to use available borrowings under the global revolving credit facility to acquire additional properties, fund development opportunities and to provide for working capital and other corporate purposes, including potentially for the repurchase, redemption or retirement of outstanding debt or preferred equity securities. As of December 31, 2013, we have capitalized approximately $17.9 million of financing costs related to the global revolving credit facility. As of December 31, 2013, approximately $724.7 million was drawn under this facility and $20.6 million of letters of credit were issued, leaving approximately $1.3 billion available for use.

On August 15, 2013, we refinanced the senior unsecured multi-currency term loan facility, increasing its total borrowing capacity to $1.0 billion from $750.0 million, and pursuant to the accordion feature total commitments can be increased up to $1.1 billion, subject to the receipt of lender commitments and other conditions precedent. The facility matures on April 16, 2017, with two six-month extension options. Interest rates are based on our senior unsecured debt ratings and are currently 120 basis points over the applicable index for floating rate advances. Funds may be drawn in U.S, Singapore and Australian dollars, as well as Euro and British pound sterling denominations with the option to add Hong Kong dollars and Japanese yen upon an accordion exercise. Based on exchange rates in effect at December 31, 2013, the balance outstanding is approximately $1,021.0 million. We have used borrowings under the term loan for acquisitions, repayment of indebtedness, development, working capital and general corporate purposes. As of December 31, 2013, we have capitalized approximately $8.4 million of financing costs related to the unsecured term loan.

For a discussion of the potential impact of current global economic and market conditions on our liquidity and capital resources, see “—Factors Which May Influence Future Results of Operations—Global market and economic conditions” above.

On June 29, 2011, our parent company commenced its new At-the-Market equity distribution program discussed under “Liquidity and Capital Resources of the Parent Company” above. For the year ended December 31, 2012, our parent company generated net proceeds of approximately $62.7 million from the issuance of approximately 1.0 million shares of common stock under the program at an average price of $66.19 per share after payment of approximately $0.6 million of commissions to the sales agents. The proceeds from the issuances were contributed to us in exchange for the issuance of approximately 1.0 million common units to our parent company. No sales were made under the program during the year ended December 31, 2013. As of December 31, 2013, shares of common stock having an aggregate offering price of $53.8 million remained available for offer and sale under the program.

On January 18, 2013, Digital Stout Holding, LLC, our wholly-owned subsidiary, issued £400.0 million (or approximately $634.8 million based on the exchange rate of £1.00 to $1.59 on January 18, 2013) aggregate principal amount of its 4.250% Guaranteed Notes due 2025, or the 2025 notes. The 2025 Notes are senior unsecured obligations of Digital Stout Holding, LLC and are fully and unconditionally guaranteed by our parent company and us. Interest on the 2025 notes is payable semiannually in arrears at a rate of 4.250% per annum. The net proceeds from the offering after deducting the original issue discount of approximately $4.8 million and underwriting commissions and estimated expenses of approximately $5.8 million was approximately $624.2 million. We used the net proceeds from this offering to temporarily repay borrowings under our global revolving credit facility.

 

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On January 31, 2013, we completed the acquisition of two properties for an aggregate purchase price of $32.5 million. One property is a 61,750 square foot data center and is located in the Dallas metropolitan area. The other property consists of three buildings totaling approximately 227,000 square feet and is located in the Phoenix metropolitan area. Two of the buildings are non-technical single tenant sale-leasebacks and the third building will be developed. The acquisitions were financed with borrowings under our global revolving credit facility.

On March 11, 2013, we made an initial investment of $12.5 million in a data center, network and IT services company in Mexico. This investment represents our entrance into the Mexican market. An additional investment of approximately $4.7 million was made in April 2013. The investments were financed with borrowings under our global revolving credit facility.

On March 12, 2013, we completed the acquisition of a 120,000 square foot data center development property for approximately $8.4 million. The property is located in the Toronto metropolitan area. The acquisition was financed with borrowings under our global revolving credit facility.

On March 27, 2013, we completed the acquisition of a 329,000 square foot data center for $37.0 million. The property is located in the Minneapolis metropolitan area and is structured as a sale-leaseback transaction. The acquisition was financed with borrowings under our global revolving credit facility.

On April 2, 2013, we acquired a three-acre land site in London for a previously signed Custom Solutions agreement for a purchase price of $3.6 million. The acquisition was financed with borrowings under our global revolving credit facility.

On May 20, 2013, we completed the acquisition of a six-building portfolio consisting of operating data centers and flex office space totaling approximately 337,000 square feet for $31.9 million. The property is located in the Austin metropolitan area. The acquisition was financed with borrowings under our global revolving credit facility.

On June 27, 2013, we completed a sale-leaseback transaction for a partially-built data center in Groningen, Netherlands for a purchase price of $3.9 million. We paid an additional $2.6 million in October 2013 upon completion of construction by the tenant, with the final payment of $1.4 million made in December 2013. This initial development totaled approximately 16,800 square feet of space. The acquisition was financed with borrowings under our global revolving credit facility.

On August 9, 2013, we acquired a 3.7 acre land site in Osaka, Japan for a purchase price of $9.6 million. The acquisition was financed with borrowings under our global revolving credit facility.

On September 23, 2013, we acquired an 11.8 acre land site in London for a previously signed Custom Solutions agreement for a purchase price of $19.3 million. The acquisition was financed with borrowings under our global revolving credit facility.

On September 24, 2013, we acquired a 5.4 acre land site in Amsterdam for a purchase price of $6.7 million. The acquisition was financed with borrowings under our global revolving credit facility.

On December 19, 2013, we completed the acquisition of a 108,000 square foot data center in Somerset, New Jersey (New York Metro) for approximately $35.3 million. The purchase price includes the assumption of a $26.4 million mortgage loan. The acquisition was financed with borrowings under our global revolving credit facility.

Purchase prices are all in U.S. dollars and exclude capitalized closing costs on land acquisitions. Purchase prices for acquisitions outside the United States are based on the exchange rate at the date of acquisition.

 

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The weighted average cash capitalization rate on income-producing properties, excluding development projects, acquired during the year ended December 31, 2013 was 9.7%. We calculate the cash capitalization rate on acquisitions by dividing anticipated annual net operating income by the purchase price (including assumed debt). Net operating income represents rental revenue and tenant reimbursement revenue from in place leases less rental property operating and maintenance expenses, property taxes and insurance expenses and is not a financial measure calculated in accordance with GAAP. Our calculation of the weighted average cash capitalization rate for acquisitions may change based on our experience operating the properties following the closing of the acquisitions. The growing acceptance by private institutional investors of the data center asset class has generally pushed capitalization rates lower, as such private investors typically have lower return expectations than us. As a result, we anticipate that near-term acquisitions activity will comprise a smaller percentage of our growth until seller price expectations realign with our return requirements.

On September 27, 2013, we formed a joint venture with an investment fund managed by Prudential Real Estate Investors (PREI ® ). We contributed nine Powered Base Building ® data centers totaling 1.06 million square feet and valued at approximately $366.4 million (excluding $2.8 million of closing costs). The PREI ® -managed fund took an 80% interest in the joint venture and we retained a 20% interest. The joint venture is structured to provide a current annual preferred return from cash flow first to the PREI ® -managed interest, then to our interest, after which a portion of any excess cash flows is shared by the partners based on their respective interests and the remaining portion is paid to us as a promoted interest. We perform the day-to-day accounting and property management functions for the joint venture and, as such, will earn a management fee for the services provided. Although we are the managing member of the joint venture and manage the day-to-day activities, all significant decisions, including approval of annual budgets and setting the amount of our management fees require approval of the PREI ® member. Thus we concluded we do not own a controlling interest and will account for our interest in the joint venture as an equity method investment.

Construction ($ in thousands)

 

    As of December 31, 2013     As of December 31, 2012  
    Net
Rentable
Square
Feet
    Current     Future     Total Cost     Net
Rentable
Square
Feet
    Current     Future     Total Cost  

Development Lifecycle

               

Land Inventory

    $ 106,327      $ —        $  106,327        $  72,366      $ —        $  72,366   

Space Held for Development

    1,331,685        340,076        —          340,076        2,014,354        391,037        —          391,037   

Base Building Construction

    1,062,647        207,568        120,808        328,376        758,960        94,816        99,820        194,636   

Datacenter Construction

    697,034        269,669        373,560        643,229        613,046        144,360        354,667        499,027   

Equipment Pool & Other Inventory

      26,361        —          26,361          15,264        —          15,264   

Campus, Tenant Improvements & Other

      33,129        10,719        43,848          33,818        21,255        55,073   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total Development

    3,091,366        983,130        505,087        1,488,217        3,386,360        751,661        475,742        1,227,403   

Enhancement & Other Non-recurring

      60,619        37,594        98,213          20,466        20,419        40,885   

Recurring

      9,482        7,036        16,518          5,180        1,580        6,760   
               
   

 

 

   

 

 

   

 

 

     

 

 

   

 

 

   

 

 

 

Total Construction in Progress

    $ 1,053,231      $ 549,717      $ 1,602,948        $ 777,307      $ 497,741      $ 1,275,048   
   

 

 

   

 

 

   

 

 

     

 

 

   

 

 

   

 

 

 

Land Inventory and Space Held for Development reflect cumulative cost on space pending future development. Base building construction consists of ongoing improvements to building infrastructure in preparation for future datacenter fit-out. Product under construction includes 697,034 square feet of Turn Key Flex ® Powered Base Building ® , and Custom Solutions product with a cost to date of approximately $269.7 million. Generally, we expect to deliver the space within 12 months; however lease commencement dates may significantly impact final delivery schedules. Equipment pool and other inventory represent the value of long-lead equipment and materials required for timely deployment and delivery of datacenter construction fit-out. Campus, Tenant Improvements and Other costs include the value of development work associated with space included in our Occupancy Analysis as either occupied or vacant.

 

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In May 2013, we received insurance settlement proceeds of approximately $8.6 million related to disputed construction costs, a portion of which has been recorded as a gain on settlement in our consolidated income statement included elsewhere in this report.

Future Uses of Cash

Our properties require periodic investments of capital for tenant-related capital expenditures and for general capital improvements. As of December 31, 2013, we had approximately 1.8 million square feet of space under active development and approximately 1.3 million square feet of space held for future development, and we also owned approximately 678,000 net rentable square feet of datacenter space with extensive installed tenant improvements. Turn-Key Flex SM space is move-in-ready space for the placement of computer and network equipment required to provide a datacenter environment. Depending on demand for additional Turn-Key Flex space, we expect to incur significant tenant improvement costs to build out and develop these types of spaces. At December 31, 2013, approximately 1,760,000 square feet was under construction for Turn-Key Flex, Powered Base Building ® and Custom Solutions product, all of which are expected to be income producing on or after completion, in eight U.S. domestic markets, three European markets, one Canadian market and one Australian market, consisting of approximately 1,063,000 square feet of base building construction and 697,000 square feet of data center construction. At December 31, 2013, we had commitments under construction contracts for approximately $202.1 million. We currently expect to incur approximately $600.0 million to $800.0 million of capital expenditures for our development programs during the year ending December 31, 2014, although this amount may increase or decrease, potentially materially, based on numerous factors, including changes in demand, leasing results and availability of debt or equity capital.

Historical Capital Expenditures

 

     Year Ended December 31,  
       2013      2012  

Development projects

   $  926,515       $  631,881   

Enhancement and other non-recurring capital expenditures

     111,502         115,387   

Recurring capital expenditures

     53,209         41,430   
  

 

 

    

 

 

 

Total capital expenditures (excluding indirect)

   $  1,091,226       $  788,698   
  

 

 

    

 

 

 

For the year ended December 31, 2013, total capital expenditures increased $302.5 million to approximately $1.1 billion from the year ended December 31, 2012. Capital expenditures on our development projects plus our enhancement and improvements projects for the year ended December 31, 2013 were approximately $1.0 million, which reflects an increase of approximately 39% from the same period in 2012. This increase was primarily due to increased spending for ground-up Custom Solutions projects, Turn-Key Flex and base building improvements. Our development capital expenditures are generally funded by our available cash and equity and debt capital.

Indirect costs, including capitalized interest, capitalized in the years ended December 31, 2013 and 2012 were $64.7 million and $53.7 million, respectively. Capitalized interest comprised approximately $26.3 million and $21.5 million, respectively, of the total indirect costs capitalized for the years ended December 31, 2013 and 2012. Capitalized interest in the year ended December 31, 2013 increased compared to the same period in 2012 due to an increase in the value of qualifying activities in progress during the year ended December 31, 2013 as compared to the year ended December 31, 2012. Excluding capitalized interest, the increase in indirect costs in the year ended December 31, 2013 compared to the same period in 2012 was primarily due to capitalized amounts relating to compensation expense of employees directly engaged in construction and leasing activities. See “—Future Uses of Cash” for a discussion of the amount of capital expenditures we expect to incur during the year ending December 31, 2014.

 

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We are in the process of analyzing the extent of the environmental cleanup work required at the 47700 Kato Road and 1055 Page Avenue property. We intend to seek recovery of costs related to this work from a prior tenant of the building and/or performance by the prior tenant of the required work. We cannot at this time estimate the magnitude of these costs, the likelihood of recovery or the impact on our financial condition and results of operations, however, the amounts are not expected to be material.

We are also subject to the commitments discussed below under “Commitments and Contingencies,” “Off-Balance Sheet Arrangements” and “Distributions.”

Consistent with our growth strategy, we actively pursue opportunities for potential acquisitions, with due diligence and negotiations often at different stages at different times. The dollar value of acquisitions for the year ending December 31, 2014 will be based on numerous factors, including tenant demand, leasing results, availability of debt or equity capital and acquisition opportunities.

We may from time to time seek to retire or repurchase our outstanding debt or the preferred equity of our parent company through cash purchases and/or exchanges for equity securities of our parent company in open market purchases, privately negotiated transactions or otherwise. Such repurchases or exchanges, if any, will depend on prevailing market conditions, our liquidity requirements, contractual restrictions or other factors. The amounts involved may be material.

We expect to meet our short- and long-term liquidity requirements, including to pay for scheduled debt maturities and to fund property acquisitions and non-recurring capital improvements, with net cash from operations, future long-term secured and unsecured indebtedness and the issuance of equity and debt securities and the proceeds of equity issuances by our parent company. We also may fund future short- and long-term liquidity requirements, including property acquisitions and non-recurring capital improvements using our global revolving credit facility pending permanent financing. If we are not able to obtain additional financing on terms attractive to us, or at all, including as a result of the circumstances described above under “Factors Which May Influence Future Results of Operations—Global market and economic conditions”, we may be required to reduce our acquisition or capital expenditure plans, which could have a material adverse effect upon our business and results of operations.

Properties Acquired During 2013

During the year ended December 31, 2013, we acquired the following properties:

Acquisitions

 

Location

  

Metropolitan Area

  

Date Acquired

   Amount  (in
millions) (1)
 

17201 Waterview Parkway

   Dallas, Texas    January 31, 2013    $ 8.5   

1900 S. Price Road

   Phoenix, Arizona    January 31, 2013      24.0   

371 Gough Road

   Toronto, Canada    March 12, 2013      8.4   

1500 Towerview Road

   Minneapolis, Minnesota    March 27, 2013      37.0   

CarTech (2)

   London, England    April 2, 2013      3.6   

MetCenter Business Park (3)

   Austin, Texas    May 20, 2013      31.9   

Liverpoolweg 10 (4)

   Amsterdam, Netherlands    June 27, 2013      3.9   

Saito Industrial Park (2)

   Osaka, Japan    August 9, 2013      9.6   

Principal Park (2)

   London, England    September 23, 2013      19.3   

De President, Hoofddorp (2)

   Amsterdam, Netherlands    September 24, 2013      6.7   

636 Pierce Street (5)

   New York Metro    December 19, 2013      35.3   
        

 

 

 

Total Acquisitions—Year Ended December 31, 2013

         $ 188.2   
        

 

 

 

 

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(1) Purchase prices are all in U.S. dollars and exclude capitalized closing costs on land acquisitions. Purchase prices for acquisitions outside the United States are based on the exchange rate at the date of acquisition.
(2) Represents currently vacant land which is not included in our operating property count.
(3) MetCenter Business Park consists of three buildings at 8201 E. Riverside Drive and three buildings at 7401 E. Ben White Boulevard in the Austin metropolitan area. MetCenter Business Park is considered one property for our property count.
(4) Acquisition of a partially-built data center in Groningen, Netherlands for a purchase price of $3.9 million. We paid an additional $2.6 million in October 2013 upon completion of construction by the tenant, with the final payment of $1.4 million made in December 2013.
(5) In connection with the acquisition, we assumed a $26.4 million secured mortgage loan.

Distributions

All distributions on our units are at the discretion of our parent company’s board of directors. In 2013, 2012 and 2011, our operating partnership declared the following distributions (in thousands):

 

Date distribution declared

  

Distribution payable

date

  Series C
Preferred
Units (1)
    Series D
Preferred
Units (2)
    Series E
Preferred
Units (3)
    Series F
Preferred
Units (4)
    Series G
Preferred
Units (5)
    Common
Units
 

February 10, 2011

   March 31, 2011   $ 1,832      $ 4,690      $  —        $  —        $  —        $ 66,252 (6)  

April 25, 2011

   June 30, 2011     1,441        3,272        —          —          —          70,576 (6)  

July 25, 2011

   September 30, 2011     1,402        3,034        —          —          —          73,247 (6)  

October 24, 2011

   December 30, 2011 for Series C, D and E Preferred Units; January 13, 2012 for Common Units     1,402        2,398        5,926 (7)       —          —          75,456 (6)  
    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
     $ 6,077      $ 13,394      $ 5,926      $  —        $  —        $ 285,531   
    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

February 14, 2012

   March 30, 2012   $ 1,402      $ 2,398      $ 5,031      $  —        $  —        $ 81,917 (8)  

April 23, 2012

   June 29, 2012     —   (9)       2,394        5,031        2,888 (10)       —          83,982 (8)  

July 19, 2012

   September 28, 2012     —          1,723        5,031        3,023        —          93,076 (8)  

October 30, 2012

   December 31, 2012 for Series D, E and F Preferred Units; January 15, 2013 for Common Units     —          1,697        5,031        3,023        —          93,434 (8)  
    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
     $ 1,402      $ 8,212      $ 20,124      $ 8,934      $  —        $ 352,409   
    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

February 12, 2013

   March 29, 2013   $  —        $  —   (11)     $ 5,031      $ 3,023      $  —        $ 102,506 (12)  

May 1, 2013

   June 28, 2013     —          —          5,031        3,023        3,345 (13)       102,507 (12)  

July 23, 2013

   September 30, 2013     —          —          5,031        3,023        3,672        102,506 (12)  

October 23, 2013

   December 31, 2013 for Series E, F and G Preferred Units; January 15, 2014 for Common Units     —          —          5,031        3,023        3,672        102,509 (12)  
    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
     $  —        $  —        $ 20,124      $ 12,092      $  10,689      $ 410,028   
    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) $1.094 annual rate of distribution per unit.
(2) $1.375 annual rate of distribution per unit.
(3) $1.750 annual rate of distribution per unit.
(4) $1.656 annual rate of distribution per unit.
(5) $1.469 annual rate of distribution per unit.
(6) $2.720 annual rate of distribution per unit.
(7) Represents a pro rata distribution from and including the original issue date to and including December 31, 2011.

 

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(8) $2.920 annual rate of distribution per unit.
(9) Effective April 17, 2012, in connection with the conversion of the series C preferred stock by Digital Realty Trust, Inc., all of the outstanding series C preferred units were converted into common units in accordance with the terms of the series C preferred units. Each series C preferred unit was converted into 0.5480 common unit of our operating partnership.
(10) Represents a pro rata distribution from and including the original issue date to and including June 30, 2012.
(11) Effective February 26, 2013, in connection with the conversion of the series D preferred stock by Digital Realty Trust, Inc., all of the outstanding series D preferred units were converted into common units in accordance with the terms of the series D preferred units. Each series D preferred unit was converted into 0.6360 common unit of our operating partnership.
(12) $3.120 annual rate of distribution per unit.
(13) Represents a pro rata distribution from and including the original issue date to and including June 30, 2013.

Commitments and Contingencies

As part of the acquisition of 29A International Business Park, the seller could earn additional consideration based on future net operating income growth in excess of certain performance targets, as defined. As of December 31, 2013, construction is not complete and none of the leases executed subsequent to purchase would cause an amount to become probable of payment and therefore no amount is accrued as of December 31, 2013. The maximum amount that could be earned by the seller is $50.0 million SGD (or approximately $39.6 million based on the exchange rate as of December 31, 2013). The earnout contingency expires in November 2020.

One of the tenants at our Convergence Business Park property has an option to expand as part of their lease agreement, which expires in April 2017. As part of this option, development activities are not permitted on specifically identified expansion space within the property until April 2014. If the tenant elects to take this option, we can elect one of two options. The first option is to construct and develop an additional shell building on the expansion space. Concurrent with this obligation, the tenant would execute an amendment to the existing lease to reflect the expansion of the space and include the additional shell building. The second option is to sell the existing building and the expansion space to the tenant for a price of approximately $24.0 million and $225,000 per square acre, respectively, plus additional adjustments as provided in the lease.

As part of the acquisition of the Sentrum Portfolio, the seller could earn additional consideration based on future net returns on vacant space to be developed, but not currently leased, as defined in the purchase agreement for the acquisition. The initial estimate of fair value of contingent consideration was approximately £56.5 million (or approximately $87.6 million based on the exchange rate as of July 11, 2012, the acquisition date). In 2013, we made certain immaterial corrections to the initial measurement of the accrued contingent consideration that resulted in an additional $5.8 million of purchase price allocated to investments in real estate. These corrections had no impact on reported net income for the period. We have adjusted the contingent consideration to fair value at each reporting date with changes in fair value recognized in operating income. At December 31, 2013, the fair value of the contingent consideration for Sentrum was £39.2 million (or approximately $64.9 million based on the exchange rate as of December 31, 2013) and is currently accrued in accounts payable and other accrued expenses in the consolidated balance sheet. During the year ended December 31, 2013, we have made earnout payments of approximately £16.9 million (or approximately $25.8 million based on the exchange rates as of the date of each payment). Change in fair value of contingent consideration for Sentrum was an increase to operating income of approximately $1.8 million and $1.1 million for the years ended December 31, 2013 and 2012, respectively. The earn-out contingency expires in July 2015. This amount will be reassessed on a quarterly basis, with any changes being recognized in earnings. Increases or decreases in the fair value of the contingent consideration can result from changes in discount periods, discount rates and probabilities that contingencies will be met.

As of December 31, 2013, we were a party to interest rate swap agreements which hedge variability in cash flows related the U.S. LIBOR and SGD-SOR based tranches of the unsecured term loan. Under these swaps, we pay variable-rate amounts in exchange for fixed-rate payments over the life of the agreements without exchange of the underlying principal amounts. See Item 7A “Quantitative and Qualitative Disclosures about Market Risk.”

 

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The following table summarizes our debt, interest, lease and construction contract payments due by period as of December 31, 2013 (dollars in thousands):

 

Obligation

   Total      2014      2015-2016      2017-2018      Thereafter  

Long-term debt principal payments (1)

   $ 4,974,581       $ 446,864       $ 738,455       $ 1,909,249       $ 1,880,013   

Interest payable (2)

     983,169         190,282         303,097         198,072         291,718   

Ground leases (3)

     47,614         1,215         2,532         2,651         41,216   

Operating lease

     135,155         12,162         27,647         24,820         70,526   

Construction contracts (4)

     202,139         202,139         —           —           —     
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 
   $ 6,342,658       $ 852,662       $ 1,071,731       $ 2,134,792       $ 2,283,473   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Includes $724.7 million of borrowings under our global revolving credit facility and $1,021.0 million of borrowings under our secured term loan, which are due to mature in November 2017 and April 2017, respectively, and excludes $2.4 million of net loan premiums related to assumed mortgage loans, $5.8 million discount on the 2020 Notes, $0.4 million discount on the 2015 Notes, $0.7 million discount on the 2021 Notes, $3.5 million discount on the 2022 Notes and $4.7 million on the 2025 Notes. Assumes maturity of the 2029 Debentures at first redemption date in April 2014.
(2) Interest payable is based on the interest rate in effect on December 31, 2013, including the effect of interest rate swaps. Interest payable excluding the effect of interest rate swaps is as follows (in thousands):

 

2014

   $ 186,931   

2015-2016

     296,395   

2017-2018

     197,092   

Thereafter

     291,717   
  

 

 

 
   $ 972,135   
  

 

 

 

 

(3) This is comprised of ground lease payments on 2010 East Centennial Circle, Chemin de l’Epinglier 2, Clonshaugh Industrial Estate I and II, Paul van Vlissingenstraat 16, Gyroscoopweg 2E-2F, Manchester Technopark and 29A International Business Park. After February 2036, rent for the remaining term of the 2010 East Centennial Circle ground lease will be determined based on a fair market value appraisal of the asset and, as a result, is excluded from the above information. After December 2036, rent for the remaining term of the Naritaweg 52 ground lease will be determined based on a fair market value appraisal of the asset and, as a result, is excluded from the above information. The Chemin de l’Epinglier 2 ground lease which expires in July 2074 contains potential inflation increases which are not reflected in the table above. The Paul van Vlissingenstraat 16, Chemin de l’Epinglier 2, Gyroscoopweg 2E-2F and Clonshaugh Industrial Estate I and II amounts are translated at the December 31, 2013 exchange rate of $1.37 to €1.00. The Manchester Technopark is translated at the December 31, 2013 exchange rate of $1.66 to £1.00. The 29A International Business Park is translated at the December 31, 2013 exchange rate of $0.79 to S$1.00.
(4) From time to time in the normal course of our business, we enter into various construction contracts with third parties that may obligate us to make payments. At December 31, 2013, we had open commitments related to construction contracts of $202.1 million.

 

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Outstanding Consolidated Indebtedness

The table below summarizes our debt maturities and principal payments as of December 31, 2013 (in thousands):

 

    Global
Revolving
Credit
Facility (1)
    Unsecured
Term

Loan (1)
    Prudential
Shelf
Facility
    Senior Notes     Exchangeable
Senior
Debentures (2)
    Mortgage
Loans (3)
    Total Debt  

2014

  $  —        $  —        $  —        $  —        $ 266,400      $ 180,464      $ 446,864   

2015

    —          —          67,000        375,000        —          77,432        519,432   

2016

    —          —          25,000        —          —          194,023        219,023   

2017

    724,668        1,020,984        50,000        —          —          110,550        1,906,202   

2018

    —          —          —          —          —          3,047        3,047   

Thereafter

    —          —          —          1,862,280        —          17,733        1,880,013   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Subtotal

  $ 724,668      $ 1,020,984      $ 142,000      $ 2,237,280      $ 266,400      $ 583,249      $ 4,974,581   

Unamortized discount

    —          —          —          (15,048     —          —          (15,048

Unamortized premium

    —          —          —          —          —          2,359        2,359   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ 724,668      $ 1,020,984      $ 142,000      $ 2,222,232      $ 266,400      $ 585,608      $ 4,961,892   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Subject to two six-month extension options exercisable by us. The bank group is obligated to grant the extension options provided we give proper notice, we make certain representations and warranties and no default exists under the global revolving credit facility and the unsecured term loan, as applicable.
(2) Assumes maturity of the 2029 Debentures at their first redemption date in April 2014.
(3) Our mortgage loans are generally non-recourse to us, subject to carve-outs for specified actions by us or specified undisclosed environmental liabilities. As of December 31, 2013, we provided partial letter of credit support with respect to approximately $37.3 million of the outstanding mortgage indebtedness (based on exchange rates as of December 31, 2013).

The table below summarizes our debt, as of December 31, 2013 (in millions):

 

Debt Summary:

  

Fixed rate

   $ 3,216.3   

Variable rate debt subject to interest rate swaps

     560.9   
  

 

 

 

Total fixed rate debt (including interest rate swaps)

     3,777.2   

Variable rate—unhedged

     1,184.7   
  

 

 

 

Total

   $ 4,961.9   
  

 

 

 

Percent of Total Debt:

  

Fixed rate (including swapped debt)

     76.1

Variable rate

     23.9
  

 

 

 

Total

     100.0
  

 

 

 

Effective Interest Rate as of December 31, 2013 (1):

  

Fixed rate (including hedged variable rate debt)

     4.60

Variable rate

     1.76

Effective interest rate

     3.92

 

(1) Excludes impact of deferred financing cost amortization.

As of December 31, 2013, we had approximately $5.0 billion of outstanding consolidated long-term debt as set forth in the table above. Our ratio of debt to total enterprise value was approximately 41% (based on the closing price of Digital Realty Trust, Inc.’s common stock on December 31, 2013 of $49.12). For this purpose, our total enterprise value is defined as the sum of the market value of Digital Realty Trust, Inc.’s outstanding

 

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common stock (which may decrease, thereby increasing our debt to total enterprise value ratio), excluding options issued under our incentive award plan, plus the liquidation value of Digital Realty Trust, Inc.’s preferred stock, plus the aggregate value of our operating partnership’s units not held by Digital Realty Trust, Inc. (with the per unit value equal to the market value of one share of Digital Realty Trust, Inc.’s common stock and excluding long-term incentive units and Class C Units), plus the book value of our total consolidated indebtedness.

The variable rate debt shown above bears interest at interest rates based on various one-month LIBOR, EURIBOR, GBP LIBOR, SIBOR, BBR, HIBOR, JPY LIBOR and CDOR rates, depending on the respective agreement governing the debt, including our global revolving credit facility and unsecured term loan. Assuming maturity of the 2029 Debentures at its first redemption date in April 2014, as of December 31, 2013, our debt had a weighted average term to initial maturity of approximately 4.9 years (approximately 5.2 years assuming exercise of extension options).

Off-Balance Sheet Arrangements

As of December 31, 2013, we were party to interest rate swap agreements related to $560.9 million of outstanding principal on our variable rate debt. See Item 7A “Quantitative and Qualitative Disclosures about Market Risk.”

As of December 31, 2013, our pro-rata share of mortgage debt of unconsolidated joint ventures was approximately $113.5 million, of which $42.0 million is subject to interest rate swap agreements.

Cash Flows

The following summary discussion of our cash flows is based on the consolidated statements of cash flows and is not meant to be an all-inclusive discussion of the changes in our cash flows for the periods presented below.

Comparison of Year Ended December 31, 2013 to Year Ended December 31, 2012 and Comparison of Year Ended December 31, 2012 to Year Ended December 31, 2011

The following table shows cash flows and ending cash and cash equivalent balances for the years ended December 31, 2013, 2012 and 2011 (in thousands).

 

     Year Ended December 31,  
     2013     2012     2011  

Net cash provided by operating activities

   $ 656,390      $ 542,948      $ 400,956   

Net cash used in investing activities

     (1,060,609     (2,475,933     (830,802

Net cash provided by financing activities

     404,746        1,948,635        458,758   
  

 

 

   

 

 

   

 

 

 

Net increase in cash and cash equivalents

   $ 527      $ 15,650      $ 28,912   
  

 

 

   

 

 

   

 

 

 

The increases in net cash provided by operating activities from 2012 to 2013 and from 2011 to 2012 were due to increased revenues from new leasing at our same store properties, completed and leased development space and our acquisition of new operating properties which was partially offset by increased operating and interest expenses. We acquired 7, 15 and 10 properties during the years ended December 31, 2013, 2012 and 2011, respectively.

Net cash used in investing activities decreased in 2013 as compared to 2012, as we had a decrease in cash paid for acquisitions for the year ended December 31, 2013 ($170.3 million) as compared to the same period in 2012 ($1.6 billion) offset by an increase in cash paid for capital expenditures for the year ended December 31, 2013 ($1.2 billion) as compared to the same period in 2012 ($845.8 million) along with proceeds from the contribution of properties to the joint venture with Prudential in September 2013 ($328.6 million).

 

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Net cash used in investing activities increased in 2012 as compared to 2011, as we had an increase in cash paid for acquisitions for the year ended December 31, 2012 ($1.6 billion) as compared to the same period in 2011 ($195.3 million) along with an increase in cash paid for capital expenditures for the year ended December 31, 2012 ($845.8 million) as compared to the same period in 2011 ($638.3 million).

Net cash flows provided by financing activities for the company consisted of the following amounts (in thousands).

 

      Year Ended December 31,  
      2013     2012     2011  

Proceeds from borrowings, net of repayments

  $ 2,097      $ 991,841      $ (234,024

Net proceeds from issuance of common and preferred stock, including exercise of stock options

    241,194        1,039,993        738,128   

Net proceeds from 2025 Notes

    630,026        —          —     

Net proceeds from 2022 Notes

    —          296,052        —     

Net proceeds from 2021 Notes

    —          —          395,777   

Principal payments on 2026 Debentures

    —          —          (88,758

Purchase of noncontrolling interests in consolidated joint ventures

    —          (12,384     (53,240

Dividend and distribution payments

    (443,858     (373,101     (286,683

Other

    (24,713     6,234        (12,442
 

 

 

   

 

 

   

 

 

 

Net cash provided by financing activities

  $ 404,746      $ 1,948,635      $ 458,758   
 

 

 

   

 

 

   

 

 

 

The decrease in net cash provided by financing activities was primarily due to higher net borrowings during the year ended December 31, 2012 (net proceeds of $991.8 million) as compared to the year ended December 31, 2013 (net proceeds of $2.1 million), the issuance of Digital Realty Trust, Inc.’s series F preferred stock in April 2012 (net proceeds of $176.2 million) and common stock in its underwritten public offering in July 2012 (net proceeds of $797.2 million) along with the issuance of our 2022 Notes (net proceeds of $296.1 million) in September 2012 offset by the issuance of our 2025 Notes (net proceeds of $630.0 million) in January 2013 and Series G preferred stock (net proceeds of $241.5 million) in April 2013. The increase in dividend and distribution payments for the year ended December 31, 2013 as compared to the same period in 2012 was due to an increase in the number of shares outstanding and dividend amount per share of common stock in 2013 as compared to 2012 and the payment of dividends on our series F and series G preferred stock during the year ended December 31, 2013, which series of preferred stock were not outstanding for the full—or, in the case of the Series G preferred stock, any portion of the— year ended December 31, 2012.

The increase in net cash provided by financing activities was primarily due to net borrowings during the year ended December 31, 2012 (net proceeds of $991.8 million) as compared to net repayments for the year ended December 31, 2011 (net repayments of $234.0 million), the issuance of Digital Realty Trust, Inc.’s series F preferred stock in April 2012 (net proceeds of $176.2 million) and common stock in its underwritten public offering in July 2012 (net proceeds of $797.2 million) along with the issuance of our 2022 Notes (net proceeds of $296.1 million) in September 2012 offset by the issuance of our 2021 Notes (net proceeds of $395.8 million), common stock (net proceeds of $455.6 million) and Series E preferred stock (net proceeds of $277.7 million) during the year ended December 31, 2011. The increase in dividend and distribution payments for the year ended December 31, 2012 as compared to the same period in 2011 was due to an increase in the number of shares outstanding and dividend amount per share of common stock in 2012 as compared to 2011 and the payment of dividends on our series E and series F preferred stock during the year ended December 31, 2012, which series of preferred stock were not outstanding for the full—or, in the case of the Series F preferred stock, any portion of the—year ended December 31, 2011.

 

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Net cash flows provided by financing activities for the operating partnership consisted of the following amounts (in thousands).

 

       Year Ended December 31,  
       2013     2012     2011  

Proceeds from borrowings, net of repayments

   $ 2,097      $ 991,841      $ (234,024

General partner contributions, net

     241,194        1,039,993        738,128   

Net proceeds from 2025 Notes

     630,026        —          —     

Net proceeds from 2022 Notes

     —          296,052        —     

Net proceeds from 2021 Notes

     —          —          395,777   

Principal payments on 2026 Debentures

     —          —          (88,758

Purchase of noncontrolling interests in consolidated joint ventures

     —          (12,384     (53,240

Distribution payments

     (443,858     (373,101     (286,683

Other

     (24,713     6,234        (12,442
  

 

 

   

 

 

   

 

 

 

Net cash provided by financing activities

   $ 404,746      $ 1,948,635      $ 458,758   
  

 

 

   

 

 

   

 

 

 

The decrease in net cash provided by financing activities was primarily due to higher net borrowings during the year ended December 31, 2012 (net proceeds of $991.8 million) as compared to the year ended December 31, 2013 (net proceeds of $2.1 million), general partner contributions in connection with Digital Realty Trust, Inc.’s series F preferred stock offering in April 2012 (net proceeds of $176.2 million) and common stock offering in July 2012 (net contributions of $797.2 million) and the issuance of our operating partnership’s 2022 Notes (net proceeds of $296.1 million) in September 2012 offset by the issuance of the 2025 Notes (net proceeds of $630.0 million) in January 2013 and general partner contributions in connection with Digital Realty Trust, Inc.’s series G preferred stock offering in April 2013 (net proceeds of $241.5 million). The increase in distribution payments for the year ended December 31, 2013 as compared to the same period in 2012 was due to an increase in the number of units outstanding and distribution amount per common unit in 2013 as compared to 2012 and the payment of distributions on our series F and series G preferred units during the year ended December 31, 2013, which series of preferred units were not outstanding for the full—or, in the case of the Series G preferred units, any portion of the—year ended December 31, 2012.

The increase in net cash provided by financing activities was primarily due to net borrowings during the year ended December 31, 2012 (net proceeds of $991.8 million) as compared to net repayments for the year ended December 31, 2011 (net repayments of $234.0 million), general partner contributions in connection with Digital Realty Trust, Inc.’s series F preferred stock offering in April 2012 (net proceeds of $176.2 million) and common stock offering in July 2012 (net contributions of $797.2 million) and the issuance of our operating partnership’s 2022 Notes (net proceeds of $296.1 million) in September 2012 offset by the issuance of the 2021 Notes (net proceeds of $395.8 million), and general partner contributions in connection with Digital Realty Trust, Inc.’s common stock offering (net proceeds of $455.6 million) and series E preferred stock offering (net proceeds of $277.7 million) during the year ended December 31, 2011. The increase in distribution payments for the year ended December 31, 2012 as compared to the same period in 2011 was due to an increase in the number of units outstanding and distribution amount per common unit in 2012 as compared to 2011 and the payment of distributions on our series E and series F preferred units during the year ended December 31, 2012, which series of preferred units were not outstanding for the full—or, in the case of the Series F preferred units, any portion of the—year ended December 31, 2011.

Noncontrolling Interests in Operating Partnership

Noncontrolling interests relate to the common units in our operating partnership that are not owned by Digital Realty Trust, Inc., which, as of December 31, 2013, amounted to 2.3% of our operating partnership common units. In conjunction with our formation, GI Partners received common units, in exchange for contributing ownership interests in properties to our operating partnership. Also, our operating partnership issued common units to third party sellers in connection with our acquisition of real estate interests from such third parties.

 

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Limited partners who acquired common units in connection with our formation have the right to require our operating partnership to redeem part or all of their common units for cash based upon the fair market value of an equivalent number of shares of Digital Realty Trust, Inc. common stock at the time of the redemption. Alternatively, we may elect to acquire those common units in exchange for shares of Digital Realty Trust, Inc. common stock on a one-for-one basis, subject to adjustment in the event of stock splits, stock dividends, issuance of stock rights, specified extraordinary distributions and similar events. Pursuant to registration rights agreements we entered into with GI Partners and the other third party contributors, we filed a shelf registration statement covering the issuance of the shares of our common stock issuable upon redemption of the common units, and the resale of those shares of common stock by the holders. As of March 31, 2007, GI Partners no longer had an ownership interest in our operating partnership.

Inflation

Many of our leases provide for separate real estate tax and operating expense escalations. In addition, many of the leases provide for fixed base rent increases. We believe that inflationary increases may be at least partially offset by the contractual rent increases and expense escalations described above.

Funds from Operations

We calculate Funds from Operations, or FFO, in accordance with the standards established by the National Association of Real Estate Investment Trusts, or NAREIT. FFO represents net income (loss) available to common stockholders (computed in accordance with U.S. GAAP), excluding gains (or losses) from sales of property, impairment charges, real estate related depreciation and amortization (excluding amortization of deferred financing costs) and after adjustments for unconsolidated partnerships and joint ventures. Management uses FFO as a supplemental performance measure because, in excluding real estate related depreciation and amortization and gains and losses from property dispositions, it provides a performance measure that, when compared year over year, captures trends in occupancy rates, rental rates and operating costs. We also believe that, as a widely recognized measure of the performance of REITs, FFO will be used by investors as a basis to compare our operating performance with that of other REITs. However, because FFO excludes depreciation and amortization and captures neither the changes in the value of our properties that result from use or market conditions, nor the level of capital expenditures and leasing commissions necessary to maintain the operating performance of our properties, all of which have real economic effect and could materially impact our financial condition and results from operations, the utility of FFO as a measure of our performance is limited. Other REITs may not calculate FFO in accordance with the NAREIT definition and, accordingly, our FFO may not be comparable to such other REITs’ FFO. Accordingly, FFO should be considered only as a supplement to net income as a measure of our performance.

 

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Reconciliation of Net Income Available to Common Stockholders to Funds From Operations (FFO)

(in thousands, except per share and unit data)

(unaudited)

 

     Year Ended December 31,  
     2013     2012     2011  

Net income available to common stockholders

   $ 271,583      $ 171,662      $ 130,868   

Adjustments:

      

Noncontrolling interests in operating partnership

     5,366        6,157        6,185   

Real estate related depreciation and amortization (1)

     471,281        378,970        308,547   

Real estate related depreciation and amortization related to investment in unconsolidated joint ventures

     3,805        3,208        3,688   

Gain on contribution of properties to unconsolidated joint venture

     (115,609     —          —     

Gain on sale of assets held in unconsolidated joint venture

     —          (2,325     —     
  

 

 

   

 

 

   

 

 

 

FFO available to common stockholders and unitholders (2)

   $ 636,426      $ 557,672      $ 449,288   
  

 

 

   

 

 

   

 

 

 

Basic FFO per share and unit

   $ 4.88      $ 4.65      $ 4.36   

Diluted FFO per share and unit (2)

   $ 4.74      $ 4.44      $ 4.06   

Weighted average common stock and units outstanding

      

Basic

     130,463        119,861        103,053   

Diluted (2)

     137,771        131,467        119,404   

(1)   Real estate related depreciation and amortization was computed as follows:

      

Depreciation and amortization per income statement

     475,464        382,553        310,425   

Non-real estate depreciation

     (4,183     (3,583     (1,878
  

 

 

   

 

 

   

 

 

 
   $ 471,281      $ 378,970      $ 308,547   
  

 

 

   

 

 

   

 

 

 

 

(2) At December 31, 2013, we had no series D convertible preferred shares outstanding. At December 31, 2012, we had 4,937 series D convertible preferred shares outstanding that were convertible into 4,017 common shares on a weighted average basis for the year ended December 31, 2012. At December 31, 2011, we had 5,126 series C convertible preferred shares and 6,977 series D convertible preferred shares outstanding that were convertible into 3,017 common shares and 6,242 common shares on a weighted average basis for the year ended December 31, 2011, respectively. In addition, we had a balance of $266,400 of 5.50% exchangeable senior debentures due 2029 that were exchangeable for 6,650, 6,486 and 6,328 common shares on a weighted average basis for the years ended December 31, 2013, 2012 and 2011, respectively. See below for calculations of diluted FFO available to common stockholders and unitholders and weighted average common stock and units outstanding.

 

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     Year Ended December 31,  
     2013      2012      2011  

FFO available to common stockholders and unitholders

   $ 636,426       $ 557,672       $ 449,288   

Add: Series C convertible preferred dividends

     —           1,402         6,077   

Add: Series D convertible preferred dividends

     —           8,212         13,394   

Add: 5.50% exchangeable senior debentures interest expense

     16,200         16,200         16,200   
  

 

 

    

 

 

    

 

 

 

FFO available to common stockholders and unitholders—diluted

   $ 652,626       $ 583,486       $ 484,959   
  

 

 

    

 

 

    

 

 

 

Weighted average common stock and units outstanding

     130,463         119,861         103,053   

Add: Effect of dilutive securities (excluding series C and D convertible preferred stock and 5.50% exchangeable senior debentures)

     187         289         764   

Add: Effect of dilutive series C convertible preferred stock

     —           814         3,017   

Add: Effect of dilutive series D convertible preferred stock

     471         4,017         6,242   

Add: Effect of dilutive 5.50% exchangeable senior debentures

     6,650         6,486         6,328   
  

 

 

    

 

 

    

 

 

 

Weighted average common stock and units outstanding—diluted

     137,771         131,467         119,404   
  

 

 

    

 

 

    

 

 

 

New Accounting Pronouncements Issued But Not Yet Adopted

In 2013, the Financial Accounting Standards Board (“FASB”) issued new accounting guidance clarifying the accounting for the release of a cumulative translation adjustment into net income when a parent either sells a part or all of its investment in a foreign entity or no longer holds a controlling financial interest in a subsidiary or group of assets that is a nonprofit activity or a business within a foreign entity. The new standard is effective for fiscal years, and interim periods within those fiscal years, beginning on or after December 15, 2013. We do not anticipate that this adoption will have a significant impact on our financial position, results of operations, or cash flows.

In 2013, the FASB issued new accounting guidance clarifying the accounting for obligations resulting from joint and several liability arrangements for which the total amount under the arrangement is fixed at the reporting date. The new standard is effective for fiscal years, and interim periods within those fiscal years, beginning on or after December 15, 2013. We do not anticipate that this adoption will have a significant impact on our financial position, results of operations, or cash flows.

 

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ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

Our future income, cash flows and fair values relevant to financial instruments depend upon prevalent market interest rates. Market risk refers to the risk of loss from adverse changes in market prices and interest rates. We do not use derivatives for trading or speculative purposes and only enter into contracts with major financial institutions based on their credit rating and other factors.

Analysis of Debt between Fixed and Variable Rate

We use interest rate swap agreements and fixed rate debt to reduce our exposure to interest rate movements. As of December 31, 2013, our consolidated debt was as follows (in millions):

 

     Carrying Value      Estimated Fair
Value
 

Fixed rate debt

   $ 3,216.3       $ 3,339.5   

Variable rate debt subject to interest rate swaps

     560.9         560.9   
  

 

 

    

 

 

 

Total fixed rate debt (including interest rate swaps)

     3,777.2         3,900.4   

Variable rate debt

     1,184.7         1,184.7   
  

 

 

    

 

 

 

Total outstanding debt

   $ 4,961.9       $ 5,085.1   
  

 

 

    

 

 

 

Interest rate derivatives included in this table and their fair values as of December 31, 2013 and December 31, 2012 were as follows (in thousands):

 

Notional Amount                           Fair Value at Significant Other
Observable Inputs (Level 2)
 

As of
December 31,
2013

    As of
December 31,
2012
   

Type of
Derivative

   Strike
Rate
    

Effective Date

  

Expiration Date

   As of
December 31,
2013
    As of
December 31,
2012
 
  $      410,905 (1)     $ 410,905 (1)     Swap      0.717       Various    Various    $ (76   $ (3,642
  150,040 (2)       155,099 (2)     Swap      0.925       Jul. 17, 2012    Apr. 18, 2017      131        (1,131
  —          69,612 (3)     Swap      2.980       April 6, 2009    Nov. 30, 2013 (5)      —          (1,552
  —          39,579 (4)     Swap      2.703       Dec. 3, 2009    Sep. 4, 2014 (6)      —          (1,617
  —          13,335 (4)     Swap      3.981       May 17, 2006    Jul. 18, 2013 (7)      —          (275
  —          9,649 (4)     Swap      4.070       Jun. 23, 2006    Jul. 18, 2013 (7)      —          (203
  —          8,492 (4)     Swap      3.989       Jul. 27, 2006    Oct. 18, 2013      —          (255

 

 

   

 

 

               

 

 

   

 

 

 
  $      560,945      $ 706,671                  $ 55      $ (8,675

 

 

   

 

 

               

 

 

   

 

 

 

 

(1) Represents the U.S. dollar tranche of the unsecured term loan.
(2) Represents a portion of the Singapore dollar tranche of the unsecured term loan. Translation to U.S. dollars is based on exchange rate of $0.79 to 1.00 SGD as of December 31, 2013 and $0.82 to 1.00 SGD as of December 31, 2012.
(3) Translation to U.S. dollars is based on exchange rate of $1.63 to £1.00 as of December 31, 2012.
(4) Translation to U.S. dollars is based on exchange rate of $1.32 to €1.00 as of December 31, 2012.
(5) The swap agreement was terminated as the mortgage loan was paid in full in October 2013.
(6) The swap agreement was terminated as the mortgage loan was paid in full in June 2013.
(7) The swap agreements were terminated as the mortgage loans were paid in full in July 2013.

 

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Table of Contents
Index to Financial Statements

Sensitivity to Changes in Interest Rates

The following table shows the effect if assumed changes in interest rates occurred, based on fair values and interest expense as of December 31, 2013:

 

Assumed event

   Interest rate
change
(basis points)
    Change
($ millions)
 

Increase in fair value of interest rate swaps following an assumed 10% increase in interest rates

     9      $ 1.4   

Decrease in fair value of interest rate swaps following an assumed 10% decrease in interest rates

     (9     (1.4

Increase in annual interest expense on our debt that is variable rate and not subject to swapped interest following a 10% increase in interest rates

     9        1.1   

Decrease in annual interest expense on our debt that is variable rate and not subject to swapped interest following a 10% decrease in interest rates

     (9     (1.1

Increase in fair value of fixed rate debt following a 10% decrease in interest rates

     (9     13.2   

Decrease in fair value of fixed rate debt following a 10% increase in interest rates

     9        (12.7

Interest risk amounts were determined by considering the impact of hypothetical interest rates on our financial instruments. These analyses do not consider the effect of any change in overall economic activity that could occur in that environment. Further, in the event of a change of that magnitude, we may take actions to further mitigate our exposure to the change. However, due to the uncertainty of the specific actions that would be taken and their possible effects, these analyses assume no changes in our financial structure.

Foreign Currency Exchange Risk

For the years ended December 31, 2013 and 2012, we had foreign operations in the United Kingdom, Ireland, France, The Netherlands, Switzerland, Canada, Singapore, Australia and Hong Kong as well as Japan in the year ended December 31, 2013, and, as such, are subject to risk from the effects of exchange rate movements of foreign currencies, which may affect future costs and cash flows. Our foreign operations are conducted in the British pound sterling, Euro, Swiss franc, Australian dollar, Singapore dollar, Canadian dollar, Hong Kong dollar and the Japanese yen. Our primary currency exposures are to the British pound sterling, Euro and the Singapore dollar. We attempt to mitigate a portion of the risk of currency fluctuation by financing our investments in the local currency denominations, although there can be no assurance that this will be effective. As a result, changes in the relation of any such foreign currency to U.S. dollars may affect our revenues, operating margins and distributions and may also affect the book value of our assets and the amount of stockholders’ equity. For the years ended December 31, 2013, 2012 and 2011, operating revenues from properties outside the United States contributed $349.1 million, $228.9 million and $116.7 million, respectively, which represented 23.6%, 17.9% and 11.0% of our operating revenues, respectively. Net investment in properties outside the United States was $2.7 billion and $2.5 billion as of December 31, 2013 and 2012, respectively.

 

93


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Index to Financial Statements
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

INDEX TO THE CONSOLIDATED FINANCIAL STATEMENTS

 

     Page No.  

Management’s Reports on Internal Control over Financial Reporting

     94   

Reports of Independent Registered Public Accounting Firm

     96   

Consolidated Financial Statements of Digital Realty Trust, Inc.

  

Consolidated Balance Sheets as of December 31, 2013 and 2012

     99   

Consolidated Income Statements for each of the years in the three-year period ended December 31, 2013

     101   

Consolidated Statements of Comprehensive Income for each of the years in the three-year period ended December 31, 2013

     102   

Consolidated Statements of Equity for each of the years in the three-year period ended December  31, 2013

     103   

Consolidated Statements of Cash Flows for each of the years in the three-year period ended December  31, 2013

     106   

Consolidated Financial Statements of Digital Realty Trust, L.P.

  

Consolidated Balance Sheets as of December 31, 2013 and 2012

     109   

Consolidated Income Statements for each of the years in the three-year period ended December 31, 2013

     111   

Consolidated Statements of Comprehensive Income for each of the years in the three-year period ended December 31, 2013

     112   

Consolidated Statements of Capital for each of the years in the three-year period ended December  31, 2013

     113   

Consolidated Statements of Cash Flows for each of the years in the three-year period ended December  31, 2013

     116   

Consolidated Financial Statements of Digital Realty Trust, Inc. and Digital Realty Trust, L.P.

  

Notes to Consolidated Financial Statements

     119   

Supplemental Schedule—Schedule III—Properties and Accumulated Depreciation

     171   

Notes to Schedule III—Properties and Accumulated Depreciation

     178   

 

94


Table of Contents
Index to Financial Statements

Management’s Report on Internal Control over Financial Reporting

The management of Digital Realty Trust, Inc. (the Company) is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rules 13a-15(f) and 15(d)-15(f). Our internal control system was designed to provide reasonable assurance to the Company’s management and board of directors regarding the preparation and fair presentation of published financial statements.

All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation.

Under the supervision and with the participation of management, including our Chief Executive Officer and Chief Financial Officer, we assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2013. In making this assessment, we used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control—Integrated Framework (1992). Based on our assessment, management concluded that as of December 31, 2013, the Company’s internal control over financial reporting was effective based on those criteria.

Our independent registered public accounting firm has issued an audit report on the Company’s internal control over financial reporting. This report appears on page 97.

 

95


Table of Contents
Index to Financial Statements

Management’s Report on Internal Control over Financial Reporting

The management of Digital Realty Trust, L.P. (the Operating Partnership) is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rules 13a-15(f) and 15(d)-15(f). Our internal control system was designed to provide reasonable assurance to the Operating Partnership’s management regarding the preparation and fair presentation of published financial statements.

All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation.

Under the supervision and with the participation of management, including the Chief Executive Officer and Chief Financial Officer of our general partner, we assessed the effectiveness of the Operating Partnership’s internal control over financial reporting as of December 31, 2013. In making this assessment, we used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control—Integrated Framework (1992). Based on our assessment, management concluded that as of December 31, 2013, the Operating Partnership’s internal control over financial reporting was effective based on those criteria.

 

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Table of Contents
Index to Financial Statements

Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders

Digital Realty Trust, Inc.:

We have audited the accompanying consolidated balance sheets of Digital Realty Trust, Inc. (the Company) and subsidiaries as of December 31, 2013 and 2012, and the related consolidated income statements, statements of comprehensive income, equity, and cash flows for each of the years in the three-year period ended December 31, 2013. In connection with our audits of the consolidated financial statements, we also have audited financial statement schedule III, properties and accumulated depreciation. These consolidated financial statements and financial statement schedule III are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements and financial statement schedule III based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Digital Realty Trust, Inc. and subsidiaries as of December 31, 2013 and 2012, and the results of their operations and their cash flows for each of the years in the three-year period ended December 31, 2013, in conformity with U.S. generally accepted accounting principles. Also in our opinion, the related financial statement schedule III, properties and accumulated depreciation, when considered in relation to the basic consolidated financial statements taken as a whole, present fairly, in all material respects, the information set forth therein.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Digital Realty Trust, Inc.’s internal control over financial reporting as of December 31, 2013, based on criteria established in Internal Control—Integrated Framework (1992) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO), and our report dated February 28, 2014 expressed an unqualified opinion on the effectiveness of the Company’s internal control over financial reporting.

/s/    KPMG LLP

San Francisco, California

February 28, 2014

 

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Table of Contents
Index to Financial Statements

Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders

Digital Realty Trust, Inc.:

We have audited Digital Realty Trust, Inc.’s (the Company) internal control over financial reporting as of December 31, 2013, based on criteria established in Internal Control—Integrated Framework (1992) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management’s Report on Internal Control over Financial Reporting . Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In our opinion, Digital Realty Trust, Inc. maintained, in all material respects, effective internal control over financial reporting as of December 31, 2013, based on criteria established in Internal Control – Integrated Framework (1992) issued by COSO.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Digital Realty Trust, Inc. and subsidiaries as of December 31, 2013 and 2012, and the related consolidated income statements, statements of comprehensive income, equity, and cash flows for each of the years in the three-year period ended December 31, 2013, and the financial statement schedule III, properties and accumulated depreciation, and our report dated February [XX], 2014 expressed an unqualified opinion on those consolidated financial statements and financial statement schedule III.

/s/    KPMG LLP

San Francisco, California

February 28, 2014

 

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Index to Financial Statements

Report of Independent Registered Public Accounting Firm

The Board of Directors of the General Partner and Partners

Digital Realty Trust, L.P.:

We have audited the accompanying consolidated balance sheets of Digital Realty Trust, L.P. (the Operating Partnership) and subsidiaries as of December 31, 2013 and 2012, and the related consolidated income statements, statements of comprehensive income, capital, and cash flows for each of the years in the three-year period ended December 31, 2013. In connection with our audits of the consolidated financial statements, we also have audited the financial statement schedule III, properties and accumulated depreciation. These consolidated financial statements and financial statement schedule III are the responsibility of the Operating Partnership’s management. Our responsibility is to express an opinion on these consolidated financial statements and financial statement schedule III based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Digital Realty Trust, L.P. and subsidiaries as of December 31, 2013 and 2012, and the results of their operations and their cash flows for each of the years in the three-year period ended December 31, 2013, in conformity with U.S. generally accepted accounting principles. Also in our opinion, the related financial statement schedule III, properties and accumulated depreciation, when considered in relation to the basic consolidated financial statements taken as a whole, presents fairly in all material respects, the information set forth therein.

/s/    KPMG LLP

San Francisco, California

February 28, 2014

 

99


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Index to Financial Statements

DIGITAL REALTY TRUST, INC. AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEETS

(in thousands, except share and per share data)

 

     December 31,
2013
    December 31,
2012
 

ASSETS

    

Investments in real estate:

    

Properties:

    

Land

   $ 693,791      $ 661,058   

Acquired ground leases

     14,618        13,658   

Buildings and improvements

     8,680,677        7,662,973   

Tenant improvements

     490,492        404,830   
  

 

 

   

 

 

 

Total investments in properties

     9,879,578        8,742,519   

Accumulated depreciation and amortization

     (1,565,996     (1,206,017
  

 

 

   

 

 

 

Net investments in properties

     8,313,582        7,536,502   

Investment in unconsolidated joint ventures

     70,504        66,634   
  

 

 

   

 

 

 

Net investments in real estate

     8,384,086        7,603,136   

Cash and cash equivalents

     56,808        56,281   

Accounts and other receivables, net of allowance for doubtful accounts of $5,576 and $3,609 as of December 31, 2013 and December 31, 2012, respectively

     181,163        168,286   

Deferred rent

     393,504        321,715   

Acquired above market leases, net of accumulated amortization of $80,486 and $69,425 as of December 31, 2013 and December 31, 2012, respectively

     52,264        65,055   

Acquired in place lease value and deferred leasing costs, net of accumulated amortization of $501,033 and $424,039 as of December 31, 2013 and December 31, 2012, respectively

     489,456        495,205   

Deferred financing costs, net of accumulated amortization of $53,939 and $43,292 as of December 31, 2013 and December 31, 2012, respectively

     36,475        30,621   

Restricted cash

     40,362        44,050   

Other assets

     51,627        34,865   
  

 

 

   

 

 

 

Total assets

   $ 9,685,745      $ 8,819,214   
  

 

 

   

 

 

 

LIABILITIES AND EQUITY

    

Global revolving credit facility

   $ 724,668      $ 723,729   

Unsecured term loan

     1,020,984        757,839   

Unsecured senior notes, net of discount

     2,364,232        1,738,221   

Exchangeable senior debentures

     266,400        266,400   

Mortgage loans, net of premiums

     585,608        792,376   

Accounts payable and other accrued liabilities

     662,687        646,427   

Accrued dividends and distributions

     102,509        93,434   

Acquired below market leases, net of accumulated amortization of $161,369 and $137,276 as of December 31, 2013 and December 31, 2012, respectively

     130,269        148,233   

Security deposits and prepaid rents

     181,876        154,171   
  

 

 

   

 

 

 

Total liabilities

     6,039,233        5,320,830   
  

 

 

   

 

 

 

 

100


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Index to Financial Statements

DIGITAL REALTY TRUST, INC. AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEETS (continued)

(in thousands, except share and per share data)

 

     December 31,
2013
    December 31,
2012
 

Commitments and contingencies

    

Stockholders’ Equity:

    

Preferred Stock: $0.01 par value per share, 70,000,000 shares authorized:

    

Series D Cumulative Convertible Preferred Stock, 5.500%, $0 and $123,413 liquidation preference, respectively ($25.00 per share), 0 and 4,936,505 shares issued and outstanding as of December 31, 2013 and December 31, 2012, respectively

     —          119,348   

Series E Cumulative Redeemable Preferred Stock, 7.000%, $287,500 and $287,500 liquidation preference, respectively ($25.00 per share), 11,500,000 and 11,500,000 shares issued and outstanding as of December 31, 2013 and December 31, 2012, respectively

     277,172        277,172   

Series F Cumulative Redeemable Preferred Stock, 6.625%, $182,500 and $182,500 liquidation preference, respectively ($25.00 per share), 7,300,000 and 7,300,000 shares issued and outstanding as of December 31, 2013 and December 31, 2012, respectively

     176,191        176,191   

Series G Cumulative Redeemable Preferred Stock, 5.875%, $250,000 and $0 liquidation preference, respectively ($25.00 per share), 10,000,000 and 0 shares issued and outstanding as of December 31, 2013 and December 31, 2012, respectively

     241,468        —     

Common Stock: $0.01 par value, 215,000,000 shares authorized, 128,455,350 and 125,140,783 shares issued and outstanding as of December 31, 2013 and December 31, 2012, respectively

     1,279        1,247   

Additional paid-in capital

     3,688,937        3,562,642   

Accumulated dividends in excess of earnings

     (785,222     (656,104

Accumulated other comprehensive loss, net

     10,691        (12,191
  

 

 

   

 

 

 

Total stockholders’ equity

     3,610,516        3,468,305   
  

 

 

   

 

 

 

Noncontrolling Interests:

    

Noncontrolling interests in operating partnership

     29,027        24,135   

Noncontrolling interests in consolidated joint ventures

     6,969        5,944   
  

 

 

   

 

 

 

Total noncontrolling interests

     35,996        30,079   
  

 

 

   

 

 

 

Total equity

     3,646,512        3,498,384   
  

 

 

   

 

 

 

Total liabilities and equity

   $ 9,685,745      $ 8,819,214   
  

 

 

   

 

 

 

See accompanying notes to the consolidated financial statements.

 

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Index to Financial Statements

DIGITAL REALTY TRUST, INC. AND SUBSIDIARIES

CONSOLIDATED INCOME STATEMENTS

(in thousands, except share and per share data)

 

     Year Ended December 31,  
     2013     2012     2011  

Operating Revenues:

      

Rental

   $ 1,155,051      $ 990,715      $ 820,711   

Tenant reimbursements

     323,286        272,309        211,811   

Fee income

     3,520        8,428        29,286   

Other

     402        7,615        902   
  

 

 

   

 

 

   

 

 

 

Total operating revenues

     1,482,259        1,279,067        1,062,710   
  

 

 

   

 

 

   

 

 

 

Operating Expenses:

      

Rental property operating and maintenance

     454,834        380,176        307,922   

Property taxes

     90,321        69,475        49,946   

Insurance

     8,743        9,600        8,024   

Construction management

     764        1,596        22,715   

Depreciation and amortization

     475,464        382,553        310,425   

General and administrative

     65,653        57,209        53,624   

Transactions

     4,605        11,120        5,654   

Other

     63        1,260        90   
  

 

 

   

 

 

   

 

 

 

Total operating expenses

     1,100,447        912,989        758,400   
  

 

 

   

 

 

   

 

 

 

Operating income

     381,812        366,078        304,310   

Other Income (Expenses):

      

Equity in earnings of unconsolidated joint ventures

     9,796        8,135        4,952   

Gain on insurance settlement

     5,597        —          —     

Gain on contribution of investment properties to unconsolidated joint venture

     115,609        —          —     

Interest and other income

     139        1,892        3,260   

Interest expense

     (189,399     (157,108     (149,350

Tax expense

     (1,292     (2,647     42   

Loss from early extinguishment of debt

     (1,813     (303     (1,088
  

 

 

   

 

 

   

 

 

 

Net income

     320,449        216,047        162,126   

Net income attributable to noncontrolling interests

     (5,961     (5,713     (5,861
  

 

 

   

 

 

   

 

 

 

Net income attributable to Digital Realty Trust, Inc.

     314,488        210,334        156,265   

Preferred stock dividends

     (42,905     (38,672     (25,397
  

 

 

   

 

 

   

 

 

 

Net income available to common stockholders

   $ 271,583      $ 171,662      $ 130,868   
  

 

 

   

 

 

   

 

 

 

Net income per share available to common stockholders:

      

Basic

   $ 2.12      $ 1.48      $ 1.33   

Diluted

   $ 2.12      $ 1.48      $ 1.32   
  

 

 

   

 

 

   

 

 

 

Weighted average common shares outstanding:

      

Basic

     127,941,134        115,717,667        98,405,375   

Diluted

     128,127,641        116,006,577        99,169,749   

See accompanying notes to the consolidated financial statements.

 

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Index to Financial Statements

DIGITAL REALTY TRUST, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

(in thousands)

 

     Year Ended December 31,  
     2013     2012     2011  

Net income

   $ 320,449      $ 216,047      $ 162,126   

Other comprehensive income (loss):

      

Foreign currency translation adjustments

     14,636        48,303        (16,653

Increase (decrease) in fair value of interest rate swaps

     2,473        (7,693     (3,185

Reclassification to interest expense from interest rate swaps

     6,258        4,547        5,631   
  

 

 

   

 

 

   

 

 

 

Comprehensive income

     343,816        261,204        147,919   

Comprehensive income attributable to noncontrolling interests

     (6,446     (7,181     (5,453
  

 

 

   

 

 

   

 

 

 

Comprehensive income attributable to Digital Realty Trust, Inc.

   $ 337,370      $ 254,023      $ 142,466   
  

 

 

   

 

 

   

 

 

 

 

 

 

See accompanying notes to the consolidated financial statements.

 

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Index to Financial Statements

DIGITAL REALTY TRUST, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF EQUITY

(in thousands, except share data)

 

    Preferred
Stock
    Number of
Common
Shares
    Common
Stock
    Additional
Paid-in
Capital
    Accumulated
Dividends in
Excess of
Earnings
    Accumulated
Other
Comprehensive
Income (Loss),
net
    Total
Stockholders’
Equity
    Noncontrolling
Interests in
Operating
Partnership
    Noncontrolling
Interests in
Consolidated
Joint Ventures
    Total
Noncontrolling
Interests
    Total
Equity
 

Balance as of December 31, 2010

  $  502,341        91,159,221      $ 909      $ 1,849,497      $ (348,148   $ (42,081   $ 1,962,518      $ 52,436      $ 39,709      $ 92,145      $ 2,054,663   

Conversion of units to common stock

    —          658,723        8        7,500        —          —          7,508        (7,508     —          (7,508     —     

Issuance of restricted stock, net of forfeitures

    —          79,119        —          —          —          —          —          —          —          —          —     

Net proceeds from sale of common stock

    —          7,746,886        77        455,503        —          —          455,580        —          —          —          455,580   

Exercise of stock options

    —          123,777        1        4,804        —          —          4,805        —          —          —          4,805   

Issuance of common stock in exchange for debentures

    —          1,087,820        11        (11,461     —          —          (11,450     —          —          —          (11,450

Issuance of series E preferred stock, net of offering costs

    277,292        —          —          —          —          —          277,292        —          —          —          277,292   

Conversion of preferred stock

    (209,852     5,183,733        51        209,801        —          —          —          —          —          —          —     

Amortization of unearned compensation regarding share based awards

    —          —          —          16,199        —          —          16,199        —          —          —          16,199   

Reclassification of vested share based awards

    —          —          —          (8,472     —          —          (8,472     8,472        —          8,472        —     

Dividends declared on preferred stock

    —          —          —          —          (25,397     —          (25,397     —          —          —          (25,397

Dividends and distributions on common stock and common and incentive units

    —          —          —          —          (271,412     —          (271,412     (14,120     —          (14,120     (285,532

Distributions to noncontrolling interests in consolidated joint ventures

    —          —          —          —          —          —          —          —          (428     (428     (428

Purchase of noncontrolling interests of a consolidated joint venture

    —          —          —          (26,720     —          —          (26,720     —          (26,520     (26,520     (53,240

Net income

    —          —          —          —          156,265        —          156,265        6,185        (324     5,861        162,126   

Other comprehensive income—foreign currency translation adjustments

    —          —          —          —          —          (16,123     (16,123     (530     —          (530     (16,653

Other comprehensive income—fair value of interest rate swaps

    —          —          —          —          —          (3,050     (3,050     (135     —          (135     (3,185

Other comprehensive income—reclassification of accumulated other comprehensive loss to interest expense

    —          —          —          —          —          5,374        5,374        257        —          257        5,631   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2011

  $ 569,781        106,039,279      $ 1,057      $ 2,496,651      $ (488,692   $ (55,880   $ 2,522,917      $ 45,057      $ 12,437      $ 57,494      $ 2,580,411   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

104


Table of Contents
Index to Financial Statements

DIGITAL REALTY TRUST, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF EQUITY (continued)

(in thousands, except share data)

 

    Preferred
Stock
    Number of
Common
Shares
    Common
Stock
    Additional
Paid-in
Capital
    Accumulated
Dividends in
Excess of
Earnings
    Accumulated
Other
Comprehensive
Income (Loss),
net
    Total
Stockholders’
Equity
    Noncontrolling
Interests in
Operating
Partnership
    Noncontrolling
Interests in
Consolidated
Joint Ventures
    Total
Noncontrolling
Interests
    Total
Equity
 

Conversion of units to common stock

    —          2,234,860        22        23,735        —          —          23,757        (23,757     —          (23,757     —     

Issuance of restricted stock, net of forfeitures

    —          94,709        —          —          —          —          —          —          —          —          —     

Net proceeds from sale of common stock

    —          12,456,818        125        859,602        —          —          859,727        —          —          —          859,727   

Exercise of stock options

    —          208,200        2        4,193        —          —          4,195        —          —          —          4,195   

Issuance of series F preferred stock, net of offering costs

    176,071        —          —          —          —          —          176,071        —          —          —          176,071   

Conversion of preferred stock

    (173,141     4,106,917        41        173,100        —          —          —          —          —          —          —     

Amortization of unearned compensation regarding share based awards

    —          —          —          15,938        —          —          15,938        —          —          —          15,938   

Reclassification of vested share based awards

    —          —          —          (8,544     —          —          (8,544     8,544        —          8,544        —     

Dividends declared on preferred stock

    —          —          —          —          (38,672     —          (38,672     —          —          —          (38,672

Dividends and distributions on common stock and common and incentive units

    —          —          —          —          (339,074     —          (339,074     (13,334     —          (13,334     (352,408

Contributions from noncontrolling interests in consolidated joint ventures

    —          —          —          —          —          —          —          —          4,302        4,302        4,302   

Purchase of noncontrolling interests of a consolidated joint venture

    —          —          —          (2,033     —          —          (2,033     —          (10,351     (10,351     (12,384

Net income

    —          —          —          —          210,334        —          210,334        6,157        (444     5,713        216,047   

Other comprehensive income—foreign currency translation adjustments

    —          —          —          —          —          46,722        46,722        1,581        —          1,581        48,303   

Other comprehensive income—fair value of interest rate swaps

    —          —          —          —          —          (7,426     (7,426     (267     —          (267     (7,693

Other comprehensive income—reclassification of accumulated other comprehensive loss to interest expense

    —          —          —          —          —          4,393        4,393        154        —          154        4,547   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2012

  $ 572,711        125,140,783      $ 1,247      $ 3,562,642      $ (656,104   $ (12,191   $ 3,468,305      $ 24,135      $ 5,944      $ 30,079      $ 3,498,384   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

105


Table of Contents
Index to Financial Statements

DIGITAL REALTY TRUST, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF EQUITY (continued)

(in thousands, except share data)

 

    Preferred
Stock
    Number of
Common
Shares
    Common
Stock
    Additional
Paid-in
Capital
    Accumulated
Dividends in
Excess of
Earnings
    Accumulated
Other
Comprehensive
Income (Loss),
net
    Total
Stockholders’
Equity
    Noncontrolling
Interests in
Operating
Partnership
    Noncontrolling
Interests in
Consolidated
Joint Ventures
    Total
Noncontrolling
Interests
    Total
Equity
 

Conversion of units to common stock

    —          57,138        1        630        —          —          631        (631     —          (631     —     

Issuance of restricted stock, net of forfeitures

    —          112,245        —          —          —          —          —          —          —          —          —     

Common stock offering costs

    —          —          —          (504     —          —          (504     —          —          —          (504

Exercise of stock options

    —          5,569        —          230        —          —          230        —          —          —          230   

Issuance of series G preferred stock, net of offering costs

    241,468        —          —          —          —          —          241,468        —          —          —          241,468   

Conversion of series D preferred stock

    (119,348     3,139,615        31        119,317        —          —          —          —          —          —          —     

Amortization of unearned compensation regarding share based awards

    —          —          —          15,621        —          —          15,621        —          —          —          15,621   

Reclassification of vested share based awards

    —          —          —          (8,999     —          —          (8,999     8,999        —          8,999        —     

Dividends declared on preferred stock

    —          —          —          —          (42,905     —          (42,905     —          —          —          (42,905

Dividends and distributions on common stock and common and incentive units

    —          —          —          —          (400,701     —          (400,701     (9,327     —          (9,327     (410,028

Contributions from noncontrolling interests in consolidated joint ventures

    —          —          —          —          —          —          —          —          430        430        430   

Net income

    —          —          —          —          314,488        —          314,488        5,366        595        5,961        320,449   

Other comprehensive income—foreign currency translation adjustments

    —          —          —          —          —          14,321        14,321        315        —          315        14,636   

Other comprehensive income—fair value of interest rate swaps

    —          —          —          —          —          2,423        2,423        50        —          50        2,473   

Other comprehensive income—reclassification of accumulated other comprehensive loss to interest expense

    —          —          —          —          —          6,138        6,138        120        —          120        6,258   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2013

  $ 694,831        128,455,350      $ 1,279      $ 3,688,937      $ (785,222   $ 10,691      $ 3,610,516      $ 29,027      $ 6,969      $ 35,996      $ 3,646,512   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying notes to the consolidated financial statements.

 

106


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Index to Financial Statements

DIGITAL REALTY TRUST, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS

(in thousands)

 

     Year Ended December 31,  
     2013     2012     2011  

Cash flows from operating activities:

      

Net income

   $ 320,449      $ 216,047      $ 162,126   

Adjustments to reconcile net income to net cash provided by operating activities:

      

Gain on insurance settlement

     (5,597     —          —     

Gain on contribution of investment properties to unconsolidated joint venture

     (115,609     —          —     

Equity in earnings of unconsolidated joint ventures

     (9,796     (8,135     (4,952

Change in fair value of accrued contingent consideration

     (1,762     1,051        —     

Distributions from unconsolidated joint ventures

     30,358        20,323        4,750   

Write-off of net assets due to early lease terminations

     60        1,260        81   

Depreciation and amortization of buildings and improvements, tenant improvements and acquired ground leases

     397,592        316,064        247,024   

Amortization of share-based unearned compensation

     11,527        12,631        13,430   

Allowance for (recovery of ) doubtful accounts

     1,967        1,173        (814

Amortization of deferred financing costs

     10,658        8,701        9,454   

Write-off of deferred financing costs, included in loss on early extinguishment of debt

     1,813        254        1,095   

Amortization of debt discount/premium

     875        372        2,028   

Amortization of acquired in place lease value and deferred leasing costs

     77,872        66,489        63,401   

Amortization of acquired above market leases and acquired below market leases

     (11,719     (10,262     (7,937

Changes in assets and liabilities:

      

Restricted cash

     4,850        7,576        (3,959

Accounts and other receivables

     (527     (60,115     (21,254

Deferred rent

     (83,541     (77,059     (56,309

Deferred leasing costs

     (16,409     (15,148     (7,129

Other assets

     (3,530     (9,496     (12,154

Accounts payable and other accrued liabilities

     34,127        20,040        (4,050

Security deposits and prepaid rents

     12,732        51,182        16,125   
  

 

 

   

 

 

   

 

 

 

Net cash provided by operating activities

     656,390        542,948        400,956   
  

 

 

   

 

 

   

 

 

 

Cash flows from investing activities:

      

Acquisitions of real estate

     (170,322     (1,560,130     (195,313

Proceeds from sale of assets, net of sales costs

     11,015        —          —     

Proceeds from contribution of investment properties to unconsolidated joint venture

     328,569        —          —     

Investment in unconsolidated joint ventures

     (24,452     (54,827     (6,139

Investment in equity securities

     (17,100     —          —     

Deposits paid for acquisitions of real estate

     —          (1,053     (1,289

Receipt of value added tax refund

     11,277        19,800        22,001   

Refundable value added tax paid

     (15,785     (34,448     (20,000

Change in restricted cash

     (1,507     2,168        8,777   

 

107


Table of Contents
Index to Financial Statements

DIGITAL REALTY TRUST, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS (continued)

(in thousands)

 

     Year Ended December 31,  
     2013     2012     2011  

Improvements to and advances for investments in real estate

     (1,189,510     (845,761     (638,265

Improvement advances to tenants

     (7,270     (5,523     (10,050

Collection of advances from tenants for improvements

     5,851        3,841        9,476   

Proceeds from insurance settlement

     8,625        —          —     
  

 

 

   

 

 

   

 

 

 

Net cash used in investing activities

     (1,060,609     (2,475,933     (830,802
  

 

 

   

 

 

   

 

 

 

Cash flows from financing activities:

      

Borrowings on revolving credit facility

   $ 1,806,832      $ 1,743,777      $ 1,028,943   

Repayments on revolving credit facility

     (1,781,435     (1,317,466     (1,084,105

Borrowings on unsecured term loan

     264,690        751,985        —     

Principal payments on unsecured notes

     (33,000     —          (25,000

Borrowings on 5.250% unsecured senior notes due 2021

     —          —          399,100   

Borrowings on 3.625% unsecured senior notes due 2022

     —          296,052        —     

Borrowings on 4.250% unsecured senior notes due 2025

     630,026        —          —     

Repayments on other secured loans

     —          (10,500     —     

Principal payments on mortgage loans

     (236,619     (166,317     (140,094

Principal repayments on 2026 exchangeable senior debentures

     —          —          (88,758

Earnout payment related to Sentrum acquisition

     (25,783     —          —     

Equity component settled in exchange of 2026 exchangeable senior debentures

     —          —          (11,783

Change in restricted cash

     640        1,932        (231

Payment of loan fees and costs

     (18,371     (9,638     (17,091

Capital contributions received from noncontrolling interests in consolidated joint ventures

     430        4,302        (428

Gross proceeds from the issuance of common stock

     —          894,221        462,447   

Gross proceeds from the issuance of preferred stock

     250,000        182,500        287,500   

Common stock offering costs paid

     (504     (34,494     (6,867

Preferred stock offering costs paid

     (8,532     (6,429     (9,757

Proceeds from exercise of stock options

     230        4,195        4,805   

Payment of dividends to preferred stockholders

     (42,905     (38,672     (25,397

Payment of dividends to common stockholders and distributions to noncontrolling interests in operating partnership

     (400,953     (334,429     (261,286

Purchase of noncontrolling interests in consolidated joint ventures

     —          (12,384     (53,240
  

 

 

   

 

 

   

 

 

 

Net cash provided by financing activities

     404,746        1,948,635        458,758   
  

 

 

   

 

 

   

 

 

 

Net increase in cash and cash equivalents

     527        15,650        28,912   

Cash and cash equivalents at beginning of period

     56,281        40,631        11,719   
  

 

 

   

 

 

   

 

 

 

Cash and cash equivalents at end of period

   $ 56,808      $ 56,281      $ 40,631   
  

 

 

   

 

 

   

 

 

 

 

108


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Index to Financial Statements

DIGITAL REALTY TRUST, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS (continued)

(in thousands)

 

    Year Ended December 31,  
    2013     2012     2011  

Supplemental disclosure of cash flow information:

     

Cash paid for interest, including amounts capitalized

  $ 192,754      $ 166,151      $ 151,903   

Cash paid for income taxes

    2,461        2,084        1,598   

Supplementary disclosure of noncash investing and financing activities:

     

Change in net assets related to foreign currency translation adjustments

  $ 14,636      $ 48,303      $ (16,653

Accrual of dividends and distributions

    102,509        93,434        75,455   

Increase in accounts payable and other accrued liabilities related to change in fair value of interest rate swaps

    2,473        (7,693     (3,185

Acquisition measurement period adjustment included in accounts payable and other accrued liabilities

    22,393        —          —     

Noncontrolling interests in operating partnership redeemed for or converted to shares of common stock

    631        23,757        7,508   

Preferred stock converted to shares of common stock

    119,348        173,141        209,852   

Accrual for additions to investments in real estate and tenant improvement advances included in accounts payable and accrued expenses

    216,520        229,743        147,835   

Issuance of common stock in exchange of 2026 exchangeable senior debentures, net

    —          —          221   

Additional accrual of contingent purchase price for investments in real estate

    6,356        90,739        —     

Allocation of purchase price of real estate/investment in partnership to:

     

Investments in real estate

  $ 183,119      $ 1,435,645      $ 222,689   

Acquired above market leases

    203        44,402        545   

Acquired below market leases

    (5,781     (81,791     (11,002

Acquired in place lease value and deferred leasing costs

    20,811        168,764        31,806   

Mortgage loan assumed, net of premium

    (28,030     (6,890     (48,725
 

 

 

   

 

 

   

 

 

 

Cash paid for acquisition of real estate

  $ 170,322      $ 1,560,130      $ 195,313   
 

 

 

   

 

 

   

 

 

 

See accompanying notes to the consolidated financial statements.

 

109


Table of Contents
Index to Financial Statements

DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEETS

(in thousands, except unit and per unit data)

 

     December 31,
2013
    December 31,
2012
 

ASSETS

    

Investments in real estate:

    

Properties:

    

Land

   $ 693,791      $ 661,058   

Acquired ground leases

     14,618        13,658   

Buildings and improvements

     8,680,677        7,662,973   

Tenant improvements

     490,492        404,830   
  

 

 

   

 

 

 

Total investments in properties

     9,879,578        8,742,519   

Accumulated depreciation and amortization

     (1,565,996     (1,206,017
  

 

 

   

 

 

 

Net investments in properties

     8,313,582        7,536,502   

Investment in unconsolidated joint ventures

     70,504        66,634   
  

 

 

   

 

 

 

Net investments in real estate

     8,384,086        7,603,136   

Cash and cash equivalents

     56,808        56,281   

Accounts and other receivables, net of allowance for doubtful accounts of $5,576 and $3,609 as of December 31, 2013 and December 31, 2012, respectively

     181,163        168,286   

Deferred rent

     393,504        321,715   

Acquired above market leases, net of accumulated amortization of $80,486 and $69,425 as of December 31, 2013 and December 31, 2012, respectively

     52,264        65,055   

Acquired in place lease value and deferred leasing costs, net of accumulated amortization of $501,033 and $424,039 as of December 31, 2013 and December 31, 2012, respectively

     489,456        495,205   

Deferred financing costs, net of accumulated amortization of $53,939 and $43,292 as of December 31, 2013 and December 31, 2012, respectively

     36,475        30,621   

Restricted cash

     40,362        44,050   

Other assets

     51,627        34,865   
  

 

 

   

 

 

 

Total assets

   $ 9,685,745      $ 8,819,214   
  

 

 

   

 

 

 

LIABILITIES AND CAPITAL

    

Global revolving credit facility

   $ 724,668      $ 723,729   

Unsecured term loan

     1,020,984        757,839   

Unsecured senior notes, net of discount

     2,364,232        1,738,221   

Exchangeable senior debentures

     266,400        266,400   

Mortgage loans, net of premiums

     585,608        792,376   

Accounts payable and other accrued liabilities

     662,687        646,427   

Accrued dividends and distributions

     102,509        93,434   

Acquired below market leases, net of accumulated amortization of $161,369 and $137,276 as of December 31, 2013 and December 31, 2012, respectively

     130,269        148,233   

Security deposits and prepaid rents

     181,876        154,171   
  

 

 

   

 

 

 

Total liabilities

     6,039,233        5,320,830   

 

110


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Index to Financial Statements

DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEETS (continued)

(in thousands, except unit and per unit data)

 

     December 31,
2013
     December 31,
2012
 

Commitments and contingencies

     

Capital:

     

Partners’ capital:

     

General Partner:

     

Series D Cumulative Convertible Preferred Units, 5.500%, $0 and $123,413 liquidation preference, respectively ($25.00 per unit), 0 and 4,936,505 units issued and outstanding as of December 31, 2013 and December 31, 2012, respectively

     —           119,348   

Series E Cumulative Redeemable Preferred Units, 7.000%, $287,500 and $287,500 liquidation preference, respectively ($25.00 per unit), 11,500,000 and 11,500,000 units issued and outstanding as of December 31, 2013 and December 31, 2012, respectively

     277,172         277,172   

Series F Cumulative Redeemable Preferred Units, 6.625%, $182,500 and $182,500 liquidation preference, respectively ($25.00 per unit), 7,300,000 and 7,300,000 units issued and outstanding as of December 31, 2013 and December 31, 2012, respectively

     176,191         176,191   

Series G Cumulative Redeemable Preferred Units, 5.875%, $250,000 and $0 liquidation preference, respectively ($25.00 per unit), 10,000,000 and 0 units issued and outstanding as of December 31, 2013 and December 31, 2012, respectively

     241,468         —     

Common units:

     

128,455,350 and 125,140,783 units issued and outstanding as of December 31, 2013 and December 31, 2012, respectively

     2,904,994         2,907,785   

Limited partners, 1,491,814 and 1,515,814 common units, 1,077,838 and 937,208 profits interest units and 397,369 and 398,378 class C units outstanding as of December 31, 2013 and December 31, 2012, respectively

     31,261         26,854   

Accumulated other comprehensive loss

     8,457         (14,910
  

 

 

    

 

 

 

Total partners’ capital

     3,639,543         3,492,440   
  

 

 

    

 

 

 

Noncontrolling interests in consolidated joint ventures

     6,969         5,944   
  

 

 

    

 

 

 

Total capital

     3,646,512         3,498,384   
  

 

 

    

 

 

 

Total liabilities and capital

   $ 9,685,745       $ 8,819,214   
  

 

 

    

 

 

 

See accompanying notes to the consolidated financial statements.

 

111


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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

CONSOLIDATED INCOME STATEMENTS

(in thousands, except unit and per unit data)

 

     Year Ended December 31,  
     2013     2012     2011  

Operating Revenues:

      

Rental

   $ 1,155,051      $ 990,715      $ 820,711   

Tenant reimbursements

     323,286        272,309        211,811   

Fee income

     3,520        8,428        29,286   

Other

     402        7,615        902   
  

 

 

   

 

 

   

 

 

 

Total operating revenues

     1,482,259        1,279,067        1,062,710   
  

 

 

   

 

 

   

 

 

 

Operating Expenses:

      

Rental property operating and maintenance

     454,834        380,176        307,922   

Property taxes

     90,321        69,475        49,946   

Insurance

     8,743        9,600        8,024   

Construction management

     764        1,596        22,715   

Depreciation and amortization

     475,464        382,553        310,425   

General and administrative

     65,653        57,209        53,624   

Transactions

     4,605        11,120        5,654   

Other

     63        1,260        90   
  

 

 

   

 

 

   

 

 

 

Total operating expenses

     1,100,447        912,989        758,400   
  

 

 

   

 

 

   

 

 

 

Operating income

     381,812        366,078        304,310   

Other Income (Expenses):

      

Equity in earnings of unconsolidated joint ventures

     9,796        8,135        4,952   

Gain on insurance settlement

     5,597        —          —     

Gain on contribution of investment properties to unconsolidated joint venture

     115,609        —          —     

Interest and other income

     139        1,892        3,260   

Interest expense

     (189,399     (157,108     (149,350

Tax expense

     (1,292     (2,647     42   

Loss from early extinguishment of debt

     (1,813     (303     (1,088
  

 

 

   

 

 

   

 

 

 

Net income

     320,449        216,047        162,126   

Net loss attributable to noncontrolling interests in consolidated joint ventures

     (595     444        324   
  

 

 

   

 

 

   

 

 

 

Net income attributable to Digital Realty Trust, L.P.

     319,854        216,491        162,450   

Preferred units distributions

     (42,905     (38,672     (25,397
  

 

 

   

 

 

   

 

 

 

Net income available to common unitholders

   $ 276,949      $ 177,819      $ 137,053   
  

 

 

   

 

 

   

 

 

 

Net income per unit available to common unitholders:

      

Basic

   $ 2.12      $ 1.48      $ 1.33   

Diluted

   $ 2.12      $ 1.48      $ 1.32   
  

 

 

   

 

 

   

 

 

 

Weighted average common units outstanding:

      

Basic

     130,462,534        119,861,380        103,053,004   

Diluted

     130,649,041        120,150,290        103,817,378   

See accompanying notes to the consolidated financial statements.

 

112


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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

(in thousands)

 

     Year Ended December 31,  
     2013      2012     2011  

Net income

   $ 320,449       $ 216,047      $ 162,126   

Other comprehensive income (loss):

       

Foreign currency translation adjustments

     14,636         48,303        (16,653

Increase (decrease) in fair value of interest rate swaps

     2,473         (7,693     (3,185

Reclassification to interest expense from interest rate swaps

     6,258         4,547        5,631   
  

 

 

    

 

 

   

 

 

 

Comprehensive income

   $ 343,816       $ 261,204      $ 147,919   
  

 

 

    

 

 

   

 

 

 

See accompanying notes to the consolidated financial statements.

 

113


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Index to Financial Statements

DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CAPITAL

(in thousands, except unit data)

 

    General Partner     Limited Partners     Accumulated
Other
Comprehensive
Income (Loss)
    Noncontrolling
Interests in
Consolidated Joint
Ventures
    Total Capital  
    Preferred Units     Common Units     Common Units        
    Units     Amount     Units     Amount     Units     Amount        

Balance as of December 31, 2010

    20,787,255      $ 502,341        91,159,221      $ 1,502,258        5,463,449     $ 56,215     $ (45,860   $ 39,709     $ 2,054,663  

Conversion of limited partner common units to general partner common units

    —          —          658,723        7,508       (658,723     (7,508     —          —          —     

Issuance of restricted common units, net of forfeitures

    —          —          79,119        —          —          —          —          —          —     

Net proceeds from issuance of common units

    —          —          7,746,886        455,580       —          —          —          —          455,580  

Issuance of common units in connection with the exercise of stock options

    —          —          123,777        4,805       —          —          —          —          4,805  

Issuance of common units, net of forfeitures

    —          —          —          —          131,404       —          —          —          —     

Issuance of common units in exchange for debentures

    —          —          1,087,820       (11,450     —          —          —          —          (11,450

Net proceeds from issuance of series E preferred units

    11,500,000       277,292       —          —          —          —          —          —          277,292  

Conversion of preferred units

    (8,683,836     (209,852     5,183,733       209,852       —          —          —          —          —     

Amortization of unearned compensation regarding share based awards

    —          —          —          16,199       —          —          —          —          16,199  

Reclassification of vested share based awards

    —          —          —          (8,472     —          8,472       —          —          —     

Distributions

    —          (25,397     —          (271,412     —          (14,120     —          —          (310,929

Purchase of noncontrolling interests of a consolidated joint venture

    —          —          —          (26,720     —          —          —          (26,520     (53,240

Distributions to noncontrolling interests in consolidated joint ventures

    —          —          —          —          —          —          —          (428     (428

Net income

    —          25,397        —          130,868       —          6,185       —          (324     162,126  

Other comprehensive loss—foreign currency translation adjustments

    —          —          —          —          —          —          (16,653     —          (16,653

Other comprehensive loss—fair value of interest rate swaps

    —          —          —          —          —          —          (3,185     —          (3,185

Other comprehensive income—reclassification of accumulated other comprehensive loss to interest expense

    —          —          —          —          —          —          5,631       —          5,631  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2011

    23,603,419      $ 569,781        106,039,279      $ 2,009,016        4,936,130     $ 49,244     $ (60,067   $ 12,437     $ 2,580,411  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

114


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Index to Financial Statements

DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CAPITAL (continued)

(in thousands, except unit data)

 

    General Partner     Limited Partners     Accumulated
Other
Comprehensive
Income (Loss)
    Noncontrolling
Interests in
Consolidated Joint
Ventures
    Total Capital  
    Preferred Units     Common Units     Common Units        
    Units     Amount     Units     Amount     Units     Amount        

Conversion of limited partner common units to general partner common units

    —          —          2,234,860        23,757       (2,234,860     (23,757     —          —          —     

Issuance of restricted common units, net of forfeitures

    —          —          94,709        —          —          —          —          —          —     

Net proceeds from issuance of common units

    —          —          12,456,818        859,727       —          —          —          —          859,727  

Issuance of common units in connection with the exercise of stock options

    —          —          208,200        4,195       —          —          —          —          4,195  

Issuance of common units, net of forfeitures

    —          —          —          —          150,130       —          —          —          —     

Net proceeds from issuance of series F preferred units

    7,300,000       176,071       —          —          —          —          —          —          176,071  

Conversion of preferred units

    (7,166,914     (173,141     4,106,917       173,141       —          —          —          —          —     

Amortization of unearned compensation regarding share based awards

    —          —          —          15,938       —          —          —          —          15,938  

Reclassification of vested share based awards

    —          —          —          (8,544     —          8,544       —          —          —     

Distributions

    —          (38,672     —          (339,074     —          (13,334     —          —          (391,080

Purchase of noncontrolling interests of a consolidated joint venture

    —          —          —          (2,033     —          —          —          (10,351     (12,384

Contributions from noncontrolling interests in consolidated joint ventures

    —          —          —          —          —          —          —          4,302       4,302  

Net income

    —          38,672        —          171,662       —          6,157       —          (444     216,047  

Other comprehensive loss—foreign currency translation adjustments

    —          —          —          —          —          —          48,303       —          48,303  

Other comprehensive loss—fair value of interest rate swaps

    —          —          —          —          —          —          (7,693     —          (7,693

Other comprehensive income—reclassification of accumulated other comprehensive loss to interest expense

    —          —          —          —          —          —          4,547       —          4,547  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2012

    23,736,505      $ 572,711        125,140,783      $ 2,907,785        2,851,400     $ 26,854     $ (14,910   $ 5,944     $ 3,498,384  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

115


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Index to Financial Statements

DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CAPITAL (continued)

(in thousands, except unit data)

 

    General Partner     Limited Partners     Accumulated
Other
Comprehensive
Income (Loss)
    Noncontrolling
Interests in
Consolidated Joint
Ventures
    Total Capital  
    Preferred Units     Common Units     Common Units        
    Units     Amount     Units     Amount     Units     Amount        

Conversion of limited partner common units to general partner common units

    —          —          57,138       631       (57,138     (631     —          —          —     

Issuance of unvested restricted common units, net of forfeitures

    —          —          112,245       —          —          —          —          —          —     

Net proceeds from issuance of common units

    —          —          —          (504     —          —          —          —          (504

Issuance of common units in connection with the exercise of stock options

    —          —          5,569       230       —          —          —          —          230  

Issuance of common units, net of forfeitures

    —          —          —          —          172,759       —          —          —          —     

Net proceeds from issuance of series G preferred units

    10,000,000       241,468       —          —          —          —          —          —          241,468  

Conversion of series D preferred units

    (4,936,505     (119,348     3,139,615       119,348       —          —          —          —          —     

Amortization of unearned compensation regarding share based awards

    —          —          —          15,621       —          —          —          —          15,621  

Reclassification of vested share based awards

    —          —          —          (8,999     —          8,999       —          —          —     

Distributions

    —          (42,905     —          (400,701     —          (9,327     —          —          (452,933

Contributions from noncontrolling interests in consolidated joint ventures

    —          —          —          —          —          —          —          430       430  

Net income

    —          42,905        —          271,583       —          5,366       —          595       320,449  

Other comprehensive loss—foreign currency translation adjustments

    —          —          —          —          —          —          14,636       —          14,636  

Other comprehensive loss—fair value of interest rate swaps

    —          —          —          —          —          —          2,473       —          2,473  

Other comprehensive income—reclassification of accumulated other comprehensive loss to interest expense

    —          —          —          —          —          —          6,258       —          6,258  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2013

    28,800,000      $ 694,831        128,455,350      $ 2,904,994        2,967,021     $ 31,261     $ 8,457     $ 6,969     $ 3,646,512  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying notes to the consolidated financial statements.

 

116


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Index to Financial Statements

DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS

(in thousands)

 

     Year Ended December 31,  
     2013     2012     2011  

Cash flows from operating activities:

      

Net income

   $ 320,449     $ 216,047     $ 162,126  

Adjustments to reconcile net income to net cash provided by operating activities:

      

Gain on insurance settlement

     (5,597     —          —     

Gain on contribution of investment properties to unconsolidated joint venture

     (115,609     —          —     

Equity in earnings of unconsolidated joint ventures

     (9,796     (8,135     (4,952

Change in fair value of accrued contingent consideration

     (1,762     1,051       —     

Distributions from unconsolidated joint ventures

     30,358       20,323       4,750  

Write-off of net assets due to early lease terminations

     60       1,260       81  

Depreciation and amortization of buildings and improvements, tenant improvements and acquired ground leases

     397,592       316,064       247,024  

Amortization of share-based unearned compensation

     11,527       12,631       13,430  

Allowance for (recovery of ) doubtful accounts

     1,967       1,173       (814

Amortization of deferred financing costs

     10,658       8,701       9,454  

Write-off of deferred financing costs, included in loss on early extinguishment of debt

     1,813       254       1,095   

Amortization of debt discount/premium

     875       372       2,028  

Amortization of acquired in place lease value and deferred leasing costs

     77,872       66,489       63,401  

Amortization of acquired above market leases and acquired below market leases

     (11,719     (10,262     (7,937

Changes in assets and liabilities:

      

Restricted cash

     4,850       7,576       (3,959

Accounts and other receivables

     (527     (60,115     (21,254

Deferred rent

     (83,541     (77,059     (56,309

Deferred leasing costs

     (16,409     (15,148     (7,129

Other assets

     (3,530     (9,496     (12,154

Accounts payable and other accrued liabilities

     34,127        20,040       (4,050

Security deposits and prepaid rents

     12,732       51,182       16,125  
  

 

 

   

 

 

   

 

 

 

Net cash provided by operating activities

     656,390        542,948       400,956  
  

 

 

   

 

 

   

 

 

 

Cash flows from investing activities:

      

Acquisitions of real estate

     (170,322     (1,560,130     (195,313

Proceeds from sale of assets, net of sales costs

     11,015       —          —     

Proceeds from contribution of investment properties to unconsolidated joint venture

     328,569       —          —     

Investment in unconsolidated joint ventures

     (24,452     (54,827     (6,139

Investment in equity securities

     (17,100     —          —     

Deposits paid for acquisitions of real estate

     —          (1,053     (1,289

Receipt of value added tax refund

     11,277       19,800       22,001  

Refundable value added tax paid

     (15,785     (34,448     (20,000

Change in restricted cash

     (1,507     2,168       8,777  

Improvements to and advances for investments in real estate

     (1,189,510     (845,761     (638,265

Improvement advances to tenants

     (7,270     (5,523     (10,050

Collection of advances from tenants for improvements

     5,851       3,841       9,476  

Proceeds from insurance settlement

     8,625       —          —     
  

 

 

   

 

 

   

 

 

 

Net cash used in investing activities

     (1,060,609     (2,475,933     (830,802
  

 

 

   

 

 

   

 

 

 

 

117


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Index to Financial Statements

DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS (continued)

(in thousands)

 

     Year Ended December 31,  
     2013     2012     2011  

Cash flows from financing activities:

      

Borrowings on revolving credit facility

   $ 1,806,832     $ 1,743,777     $ 1,028,943  

Repayments on revolving credit facility

     (1,781,435     (1,317,466     (1,084,105

Borrowings on unsecured term loan

     264,690       751,985       —     

Principal payments on unsecured notes

     (33,000     —          (25,000

Borrowings on 5.250% unsecured senior notes due 2021

     —          —          399,100  

Borrowings on 3.625% unsecured senior notes due 2022

     —          296,052       —     

Borrowings on 4.250% unsecured senior notes due 2025

     630,026       —          —     

Repayments on other secured loans

     —          (10,500     —     

Principal payments on mortgage loans

     (236,619     (166,317     (140,094

Principal repayments on 2026 exchangeable senior debentures

     —          —          (88,758

Earnout payment related to Sentrum acquisition

     (25,783     —          —     

Equity component settled in exchange of 2026 exchangeable senior debentures

     —          —          (11,783

Change in restricted cash

     640       1,932       (231

Payment of loan fees and costs

     (18,371     (9,638     (17,091

Capital contributions received from noncontrolling interests in consolidated joint ventures

     430       4,302       (428

General partner contributions

     241,194       1,039,993       738,128  

Redemption of preferred stock

     —          —          —     

Payment of distributions to preferred unitholders

     (42,905     (38,672     (25,397

Payment of distributions to common unitholders

     (400,953     (334,429     (261,286

Purchase of noncontrolling interests in consolidated joint ventures

     —          (12,384     (53,240
  

 

 

   

 

 

   

 

 

 

Net cash provided by financing activities

     404,746       1,948,635       458,758  
  

 

 

   

 

 

   

 

 

 

Net increase in cash and cash equivalents

     527       15,650       28,912  

Cash and cash equivalents at beginning of period

     56,281       40,631       11,719  
  

 

 

   

 

 

   

 

 

 

Cash and cash equivalents at end of period

   $ 56,808     $ 56,281     $ 40,631  
  

 

 

   

 

 

   

 

 

 

 

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CONSOLIDATED STATEMENTS OF CASH FLOWS (continued)

(in thousands)

 

     Year Ended December 31,  
     2013     2012     2011  

Supplemental disclosure of cash flow information:

      

Cash paid for interest, including amounts capitalized

   $ 192,754     $ 166,151     $ 151,903  

Cash paid for income taxes

     2,461        2,084        1,598   

Supplementary disclosure of noncash investing and financing activities:

      

Change in net assets related to foreign currency translation adjustments

     14,636       48,303       (16,653

Accrual of distributions

     102,509       93,434       75,455  

Increase in accounts payable and other accrued liabilities related to change in fair value of interest rate swaps

     2,473       (7,693     (3,185

Acquisition measurement period adjustment included in accounts payable and other accrued liabilities

     22,393       —          —     

Preferred units converted to common units

     119,348       173,141       209,852  

Accrual for additions to investments in real estate and tenant improvement advances included in accounts payable and accrued expenses

     216,520        229,743        147,835   

Issuance of common units in exchange of 2026 exchangeable senior debentures, net

     —          —          221  

Additional accrual of contingent purchase price for investments in real estate

     6,356       90,739       —     

Allocation of purchase price of real estate/investment in partnership to:

      

Investments in real estate

   $ 183,119      $ 1,435,645     $ 222,689  

Acquired above market leases

     203       44,402       545  

Acquired below market leases

     (5,781     (81,791     (11,002

Acquired in place lease value and deferred leasing costs

     20,811       168,764       31,806  

Mortgage loan assumed, net of premium

     (28,030     (6,890     (48,725
  

 

 

   

 

 

   

 

 

 

Cash paid for acquisition of real estate

   $ 170,322      $ 1,560,130     $ 195,313  
  

 

 

   

 

 

   

 

 

 

See accompanying notes to the consolidated financial statements.

 

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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2013 and 2012

1. Organization and Description of Business

Digital Realty Trust, Inc. through its controlling interest in Digital Realty Trust, L.P. (the Operating Partnership) and the subsidiaries of the Operating Partnership (collectively, we, our, us or the Company) is engaged in the business of owning, acquiring, developing and managing technology-related real estate. The Company is focused on providing customer driven datacenter solutions for domestic and international tenants across a variety of industry verticals ranging from financial services, cloud and information technology services, to manufacturing, energy, health care and consumer products. As of December 31, 2013, our portfolio consisted of 131 properties, including 12 properties held as investments in unconsolidated joint ventures and developable land, of which 104 are located throughout North America, 22 are located in Europe, three are located in Australia and two are located in Asia. We are diversified in major markets where corporate datacenter and technology tenants are concentrated, including the Boston, Chicago, Dallas, Los Angeles, New York Metro, Northern Virginia, Phoenix, San Francisco and Silicon Valley metropolitan areas in the United States, Amsterdam, Dublin, London and Paris markets in Europe and Singapore, Sydney, Melbourne, Hong Kong and Osaka markets in the Asia Pacific region. The portfolio consists of Internet gateway and corporate datacenter properties, technology manufacturing properties and regional or national headquarters of technology companies.

The Operating Partnership was formed on July 21, 2004 in anticipation of Digital Realty Trust, Inc.’s initial public offering (IPO) on November 3, 2004 and commenced operations on that date. As of December 31, 2013, Digital Realty Trust, Inc. owns a 97.7% common interest and a 100% preferred interest in the Operating Partnership. As sole general partner of the Operating Partnership, Digital Realty Trust, Inc. has the full, exclusive and complete responsibility for the Operating Partnership’s day-to-day management and control. The limited partners of the Operating Partnership do not have rights to replace Digital Realty Trust, Inc. as the general partner nor do they have participating rights, although they do have certain protective rights.

2. Summary of Significant Accounting Policies

(a) Principles of Consolidation and Basis of Presentation

The accompanying consolidated financial statements include all of the accounts of Digital Realty Trust, Inc., the Operating Partnership and the subsidiaries of the Operating Partnership. Intercompany balances and transactions have been eliminated.

The notes to the consolidated financial statements of Digital Realty Trust, Inc. and the Operating Partnership have been combined to provide the following benefits:

 

   

enhancing investors’ understanding of the Company and the Operating Partnership by enabling investors to view the business as a whole in the same manner as management views and operates the business;

 

   

eliminating duplicative disclosure and providing a more streamlined and readable presentation since a substantial portion of the disclosure applies to both the Company and the Operating Partnership; and

 

   

creating time and cost efficiencies through the preparation of one set of notes instead of two separate sets of notes.

There are few differences between the Company and the Operating Partnership, which are reflected in these consolidated financial statements. We believe it is important to understand the differences between the Company and the Operating Partnership in the context of how we operate as an interrelated consolidated company. Digital Realty Trust, Inc.’s only material asset is its ownership of partnership interests of the Operating Partnership. As a

 

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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

result, Digital Realty Trust, Inc. does not conduct business itself, other than acting as the sole general partner of the Operating Partnership, issuing public equity from time to time and guaranteeing certain unsecured debt of the Operating Partnership and certain of its subsidiaries. Digital Realty Trust, Inc. itself does not hold any indebtedness but guarantees the unsecured debt of the Operating Partnership and certain of its subsidiaries, as disclosed in these notes. The Operating Partnership holds substantially all the assets of the Company and holds the ownership interests in the Company’s joint ventures. The Operating Partnership conducts the operations of the business and is structured as a partnership with no publicly traded equity. Except for net proceeds from public equity issuances by Digital Realty Trust, Inc., which are generally contributed to the Operating Partnership in exchange for partnership units, the Operating Partnership generates the capital required by the Company’s business through the Operating Partnership’s operations, by the Operating Partnership’s direct or indirect incurrence of indebtedness or through the issuance of partnership units.

The presentation of noncontrolling interests in operating partnership, stockholders’ equity and partners’ capital are the main areas of difference between the consolidated financial statements of Digital Realty Trust, Inc. and those of the Operating Partnership. The common limited partnership interests held by the limited partners in the Operating Partnership are presented as limited partners’ capital within partners’ capital in the Operating Partnership’s consolidated financial statements and as noncontrolling interests in operating partnership within equity in Digital Realty Trust, Inc.’s consolidated financial statements. The common and preferred partnership interests held by Digital Realty Trust, Inc. in the Operating Partnership are presented as general partner’s capital within partners’ capital in the Operating Partnership’s consolidated financial statements and as preferred stock, common stock, additional paid-in capital and accumulated dividends in excess of earnings within stockholders’ equity in Digital Realty Trust, Inc.’s consolidated financial statements. The differences in the presentations between stockholders’ equity and partners’ capital result from the differences in the equity issued at the Digital Realty Trust, Inc. and the Operating Partnership levels.

To help investors understand the significant differences between the Company and the Operating Partnership, these consolidated financial statements present the following separate sections for each of the Company and the Operating Partnership:

 

   

consolidated face financial statements; and

 

   

the following notes to the consolidated financial statements:

 

   

Debt of the Company and Debt of the Operating Partnership;

 

   

Income per Share and Income per Unit;

 

   

Equity and Accumulated Other Comprehensive Loss, Net of the Company and Capital and Accumulated Other Comprehensive Income (Loss) of the Operating Partnership; and

 

   

Quarterly Financial Information.

In the sections that combine disclosure of Digital Realty Trust, Inc. and the Operating Partnership, these notes refer to actions or holdings as being actions or holdings of the Company. Although the Operating Partnership is generally the entity that enters into contracts and joint ventures and holds assets and debt, reference to the Company is appropriate because the business is one enterprise and the Company operates the business through the Operating Partnership.

 

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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

(b) Cash Equivalents

For the purpose of the consolidated statements of cash flows, we consider short-term investments with original maturities of 90 days or less to be cash equivalents. As of December 31, 2013 and 2012, cash equivalents consist of investments in money market instruments.

(c) Investments in Real Estate

Investments in real estate are stated at cost, less accumulated depreciation and amortization. Land is not depreciated. Depreciation and amortization are recorded on a straight-line basis over the estimated useful lives as follows:

 

Acquired ground leases    Terms of the related lease
Buildings and improvements    5-39 years
Tenant improvements    Shorter of the estimated useful lives or the terms of the related leases

Improvements and replacements are capitalized when they extend the useful life, increase capacity, or improve the efficiency of the asset. Repairs and maintenance are charged to expense as incurred.

(d) Investment in Unconsolidated Joint Ventures

The Company’s investment in unconsolidated joint ventures is accounted for using the equity method, whereby the investment is increased for capital contributed and our share of the joint ventures’ net income and decreased by distributions we receive and our share of any losses of the joint ventures.

(e) Impairment of Long-Lived Assets

We review each of our properties for indicators that its carrying amount may not be recoverable. Examples of such indicators may include a significant decrease in the market price of the property, a significant adverse change in the extent or manner in which the property is being used in its physical condition or expected to be used based on the underwriting at the time of acquisition, an accumulation of costs significantly in excess of the amount originally expected for the acquisition or development of the property, or a history of operating or cash flow losses of the property. When such impairment indicators exist, we review an estimate of the future undiscounted net cash flows (excluding interest charges) expected to result from the real estate investment’s use and eventual disposition and compare that estimate to the carrying value of the property. We consider factors such as future operating income, trends and prospects, as well as the effects of leasing demand, competition and other factors. If our undiscounted net cash flow evaluation indicates that we are unable to recover the carrying value of a real estate investment, an impairment loss is recorded to the extent that the carrying value exceeds the estimated fair value of the property. Management believes no impairment in the net carrying value of our investments in real estate has occurred.

(f) Purchase Accounting for Acquisition of Investments in Real Estate

Purchase accounting is applied to the assets and liabilities related to all real estate investments acquired from third parties. In accordance with current accounting guidance , the fair value of the real estate acquired is allocated to the acquired tangible assets, consisting primarily of land, building and tenant improvements, and identified intangible assets and liabilities, consisting of the value of above-market and below-market leases, other value of in-place leases, value of tenant relationships and acquired ground leases, based in each case on their fair values. Loan premiums, in the case of above market rate loans, or loan discounts, in the case of below market loans, are recorded based on the fair value of any loans assumed in connection with acquiring the real estate.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

The fair values of the tangible assets of an acquired property are determined based on comparable land sales for land and replacement costs adjusted for physical and market obsolescence for the improvements. The fair values of the tangible assets of an acquired property are also determined by valuing the property as if it were vacant, and the “as-if-vacant” value is then allocated to land, building and tenant improvements based on management’s determination of the relative fair values of these assets. Management determines the as-if-vacant fair value of a property based on assumptions that a market participant would use, which is similar to methods used by independent appraisers. Factors considered by management in performing these analyses include an estimate of carrying costs during the expected lease-up periods considering current market conditions and costs to execute similar leases. In estimating carrying costs, management includes real estate taxes, insurance and other operating expenses and estimates of lost rental revenue during the expected lease-up periods based on current market demand. Management also estimates costs to execute similar leases including leasing commissions, tenant improvements, legal and other related costs.

In allocating the fair value of the identified intangible assets and liabilities of an acquired property, above-market and below-market in-place lease values are recorded based on the present value (using an interest rate which reflects the risks associated with the leases acquired) of the difference between (i) the contractual amounts to be paid pursuant to the in-place leases and (ii) estimated fair market lease rates from the perspective of a market participant for the corresponding in-place leases, measured, for above-market leases, over a period equal to the remaining non-cancelable term of the lease and, for below-market leases, over a period equal to the initial term plus any below market fixed rate renewal periods. The leases we have acquired do not currently include any below market fixed rate renewal periods. The capitalized above-market lease values are amortized as a reduction of rental income over the remaining non-cancelable terms of the respective leases. The capitalized below-market lease values, also referred to as acquired lease obligations, are amortized as an increase to rental income over the initial terms of the respective leases and any below market fixed rate renewal periods.

In addition to the intangible value for above market leases and the intangible negative value for below market leases, there is intangible value related to having tenants leasing space in the purchased property, which is referred to as in-place lease value and tenant relationship value. Such value results primarily from the buyer of a leased property avoiding the costs associated with leasing the property and also avoiding rent losses and unreimbursed operating expenses during the lease up period. The estimated avoided costs and avoided revenue losses are calculated and this aggregate value is allocated between in-place lease value and tenant relationships based on management’s evaluation of the specific characteristics of each tenant’s lease; however, the value of tenant relationships has not been separated from in-place lease value for our real estate because such value and its consequence to amortization expense is immaterial for these particular acquisitions. The value of in-place leases exclusive of the value of above-market in-place leases is amortized to expense over the estimated term (including renewal and extension assumptions) of the respective leases. If a lease were to be terminated prior to its estimated term, all unamortized amounts relating to that lease would be written off.

(g) Capitalization of Costs

Direct and indirect project costs that are clearly associated with the development of properties are capitalized as incurred. Project costs include all costs directly associated with the development of a property, including construction costs, interest, property taxes, insurance, legal fees and costs of personnel working on the project. Indirect costs that do not clearly relate to the projects under development are not capitalized and are charged to expense as incurred.

 

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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

Capitalization of costs begins when the activities necessary to get the development project ready for its intended use begins, which include costs incurred before the beginning of construction. Capitalization of costs ceases when the development project is substantially complete and ready for its intended use. Determining when a development project commences, and when it is substantially complete and ready for its intended use involves a degree of judgment. We generally consider a development project to be substantially complete and ready for its intended use upon receipt of a certificate of occupancy. We cease cost capitalization if activities necessary for the development of the property have been suspended. Capitalized costs are allocated to the specific components of a project that are benefited.

During the second quarter of 2013, in accordance with U.S. GAAP, we refined our capitalization practice related to operating expenditures which could have been capitalized, but had been expensed. Previously, operating expenditures totaling $10,000 or less that could have been capitalized had been expensed as incurred for efficiency purposes. Under our refined capitalization practice, retrospective to January 1, 2013, such expenses are now capitalized. Additionally, we conformed the construction period completion date, which is when capitalization of construction period operating costs ceases, with our construction period interest capitalization policy. Previously, capitalization of construction period operating costs ceased upon the commissioning date. Retrospective to January 1, 2013, capitalization of construction period operating costs now ceases on receipt of the certificate of occupancy, among other factors. During the year ended December 31, 2013, the total incremental amounts capitalized that would have been recorded as rental property operating expense under our previous policies was approximately $9.5 million.

During the years ended December 31, 2013, 2012 and 2011, we capitalized interest of approximately $26.3 million, $21.5 million and $17.9 million, respectively. During the years ended December 31, 2013, 2012 and 2011, we capitalized amounts relating to compensation expense of employees direct and incremental to construction and successful leasing activities of approximately $37.6 million, $31.6 million and $24.7 million, respectively. Cash flows from capitalized leasing costs of $57.5 million, $40.1 million and $28.2 million are included in improvements to and advances for investments in real estate in cash flows from investing activities in the consolidated statements of cash flows for the years ended December 31, 2013, 2012 and 2011, respectively.

(h) Deferred Leasing Costs

Leasing commissions and other direct and indirect costs associated with the acquisition of tenants are capitalized and amortized on a straight line basis over the terms of the related leases.

(i) Foreign Currency Translation

Assets and liabilities of our subsidiaries outside the United States with non-U.S. dollar functional currencies are translated into U.S. dollars using exchange rates as of the balance sheet dates. Income and expenses are translated using the average exchange rates for the reporting period. Foreign currency translation adjustments are recorded as a component of other comprehensive income.

(j) Deferred Financing Costs

Loan fees and costs are capitalized and amortized over the life of the related loans on a straight-line basis, which approximates the effective interest method. Such amortization is included as a component of interest expense.

(k) Restricted Cash

Restricted cash consists of deposits for real estate taxes and insurance and other amounts as required by our loan agreements including funds for leasing costs and improvements related to unoccupied space.

 

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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

(l) Offering Costs

Underwriting commissions and other offering costs are reflected as a reduction in additional paid-in capital, or in the case of preferred stock, as a reduction of the carrying value of preferred stock.

(m) Share Based Compensation

We account for share based compensation using the fair value method of accounting. The estimated fair value of restricted stock granted by us is being amortized on a straight-line basis over the vesting period. The estimated fair value of the long-term incentive units and Class C Units (discussed in note [13]) granted by us is being amortized on a straight-line basis over the expected service period.

For share based compensation awards with performance conditions, we estimate the fair value of the award for each of the possible performance condition outcomes and amortize the compensation cost based on management’s projected performance outcome. In the instance management’s projected performance outcome changes prior to the final measurement date, compensation cost is adjusted accordingly.

(n) Accounting for Derivative Instruments and Hedging Activities

We account for our derivative instruments and hedging activities in accordance with the accounting standard for derivative and hedging activities. The accounting standard requires us to measure every derivative instrument (including certain derivative instruments embedded in other contracts) at fair value and record them in the balance sheet as either an asset or liability.

The effective portion of changes in the fair value of derivatives designated and that qualify as cash flow hedges is recorded in accumulated other comprehensive income (loss) and is subsequently reclassified into earnings in the period that the hedged forecasted transaction affects earnings. The ineffective portion of the change in fair value of the derivatives is recognized directly in earnings. During the years ended December 31, 2013, 2012 and 2011, respectively, there were no ineffective portions to our interest rate swaps.

We actively manage our ratio of fixed-to-floating rate debt. To manage our fixed and floating rate debt in a cost-effective manner, we, from time to time, enter into interest rate swap agreements as cash flow hedges, under which we agree to exchange various combinations of fixed and/or variable interest rates based on agreed upon notional amounts. We do not enter into derivative instruments for trading purposes.

(o) Income Taxes

Digital Realty Trust, Inc. (the Parent Company) has elected to be treated and believes that it has been organized and has operated in a manner that has enabled the Parent Company to qualify as a REIT for federal income tax purposes. As a REIT, the Parent Company generally is not required to pay federal corporate income taxes on its taxable income to the extent it is currently distributed to its stockholders.

However, qualification and taxation as a REIT depend upon the Parent Company’s ability to meet the various qualification tests imposed under the Internal Revenue Code of 1986, as amended (the Code), including tests related to annual operating results, asset composition, distribution levels and diversity of stock ownership. Accordingly, no assurance can be given that the Parent Company has been organized or has operated or will continue to operate in a manner so as to qualify or remain qualified as a REIT. If the Parent Company fails to qualify as a REIT in any taxable year, it will be subject to federal income tax (including any applicable alternative minimum tax) on its taxable income at regular corporate tax rates.

 

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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

The Operating Partnership is a partnership and is not required to pay federal income tax. Instead, taxable income is allocated to its partners, who include such amounts on their federal income tax returns. As such, no provision for federal income taxes has been included in the Operating Partnership’s accompanying consolidated financial statements.

Even if the Parent Company and the Operating Partnership are not subject to federal income taxes, the Company is subject to foreign, state and local income taxes in the jurisdictions in which it conducts business. The Company’s U.S. consolidated taxable REIT subsidiary is subject to both federal and state income taxes to the extent there is taxable income. Accordingly, the Company recognizes and accrues income taxes for its taxable REIT subsidiaries, certain states and non-U.S. jurisdictions, as appropriate.

We assess our significant tax positions in accordance with U.S. GAAP for all open tax years and determine whether we have any material unrecognized liabilities from uncertain tax benefits. If a tax position is not considered “more-likely-than-not” to be sustained solely on its technical merits, no benefits of the tax position are to be recognized (for financial statement purposes). As of December 31, 2013 and 2012, we have no assets or liabilities for uncertain tax positions. We classify interest and penalties from significant uncertain tax positions as interest expense and operating expense, respectively, in our consolidated statements of operations. For the years ended December 31, 2013, 2012 and 2011, we had no such interest or penalties. The tax year 2010 and thereafter remain open to examination by the major taxing jurisdictions with which the Parent Company and its subsidiaries file tax returns.

See Note [10] for further discussion on income taxes.

(p) Presentation of Transactional-based Taxes

We account for transactional-based taxes, such as value added tax, or VAT, for our international properties on a net basis.

(q) Revenue Recognition

All leases are classified as operating leases and minimum rents are recognized on a straight-line basis over the terms of the leases. The excess of rents recognized over amounts contractually due pursuant to the underlying leases is included in deferred rent in the accompanying consolidated balance sheets and contractually due but unpaid rents are included in accounts and other receivables.

Tenant reimbursements for real estate taxes, common area maintenance, and other recoverable costs are recognized in the period that the expenses are incurred. Lease termination fees, which are included in other income in the accompanying statements of operations, are recognized over the new remaining term of the lease, effective as of the date the lease modification is finalized, and assuming collection is probable.

A provision for loss is made if the collection of the receivable balances related to contractual rent, rent recorded on a straight-line basis, tenant reimbursements and lease termination fees are considered to be doubtful.

(r) Asset Retirement Obligations

We record accruals for estimated retirement obligations as required by current accounting guidance. The amount of asset retirement obligations relates primarily to estimated asbestos removal costs at the end of the economic life of properties that were built before 1984. As of December 31, 2013 and December 31, 2012, the amount included in accounts payable and other accrued liabilities on our consolidated balance sheets was approximately $1.7 million and $1.7 million, respectively.

 

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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

(s) Fee Income

Occasionally, customers engage the company for certain consulting services. The nature of these services historically involves property management, construction management, and assistance with financing. The proper revenue recognition of these services can be different, depending on whether the arrangements are service revenue or contractor type revenue.

Service revenues are typically recognized on an equal monthly basis based on the minimum fee to be earned. The monthly amounts could be adjusted depending on if certain performance milestones are met.

Contractor type revenue for long-term contracts is recognized under the percentage-of-completion method of accounting. Revenues are determined by measuring the percentage of total costs incurred to date to estimated total costs for each construction management contract based on current estimates of costs to complete. Contract costs include all labor and benefits, materials, subcontracts, and an allocation of indirect costs related to contract performance. Indirect costs are allocated to projects based upon labor hours charged. Third party costs are included in construction management expense and their reimbursements are included in construction management revenue to the extent that the Company is the primary obligor for the third party costs. Otherwise, construction management revenue and expense is reflected net of third party costs. As long-term design-build projects extend over one or more years, revisions in cost and estimated earnings during the course of the work are reflected in the accounting period in which the facts which require the revision become known. At the time a loss on a design-build project becomes known, the entire amount of the estimated loss is recognized in the condensed consolidated financial statements. Change orders are recognized when they are approved by the client.

Costs and estimated earnings in excess of billings on uncompleted construction management projects are included in other assets in the condensed consolidated balance sheets. Billings in excess of costs and estimated earnings on uncompleted construction management projects are included in accounts payable and other accrued liabilities in the condensed consolidated balance sheets. Customers are billed on a monthly basis at the end of each month, which can be in advance of work performed.

(t) Assets and Liabilities Measured at Fair Value

Fair value under U.S. GAAP is a market-based measurement, not an entity-specific measurement. Therefore, our fair value measurements are determined based on the assumptions that market participants would use in pricing the asset or liability. As a basis for considering market participant assumptions in fair-value measurements, we use a fair-value hierarchy that distinguishes between market participant assumptions based on market data obtained from sources independent of the reporting entity (observable inputs that are classified within Levels 1 and 2 of the hierarchy) and the reporting entity’s own assumptions about market participant assumptions (unobservable inputs classified within Level 3 of the hierarchy).

Level 1 inputs utilize quoted prices (unadjusted) in active markets for identical assets or liabilities that the Company has the ability to access. Level 2 inputs are inputs other than quoted prices included in Level 1 that are observable for the asset or liability, either directly or indirectly. Level 2 inputs may include quoted prices for similar assets and liabilities in active markets, as well as inputs that are observable for the asset or liability (other than quoted prices), such as interest rates, foreign exchange rates, and yield curves that are observable at commonly quoted intervals. Level 3 inputs are unobservable inputs for the asset or liability which are typically based on an entity’s own assumptions, as there is little, if any, related market activity. In instances where the determination of the fair-value measurement is based on inputs from different levels of the fair-value hierarchy, the level in the fair-value hierarchy within which the entire fair-value measurement falls is based on the lowest level input that is

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

significant to the fair-value measurement in its entirety. Our assessment of the significance of a particular input to the fair-value measurement in its entirety requires judgment, and considers factors specific to the asset or liability.

(u) Transactions Expense

Transactions expense includes acquisition-related expenses and other business development expenses, which are expensed as incurred. Acquisition-related expenses include closing costs, broker commissions and other professional fees, including legal and accounting fees related to acquisitions and potential acquisitions.

(v) Management’s Estimates

The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates made. On an on-going basis, we evaluate our estimates, including those related to the valuation of our real estate properties, contingent consideration, accounts receivable and deferred rent receivable, performance-based equity compensation plans, the completeness of accrued liabilities and Digital Realty Trust, Inc.’s qualification as a REIT. We base our estimates on historical experience, current market conditions, and various other assumptions that are believed to be reasonable under the circumstances. Actual results may vary from those estimates and those estimates could vary under different assumptions or conditions.

(w) Segment and Geographic Information

All of our properties generate similar revenues and expenses related to tenant rent and reimbursements and operating expenses. The delivery of our products is consistent across all properties and although services are provided to a wide range of customers, the types of real estate services provided to them are standardized throughout the portfolio. As such, the properties in our portfolio have similar economic characteristics and the nature of the products and services provided to our customers and the method to distribute such services are consistent throughout the portfolio. Consequently, our properties qualify for aggregation into one reporting segment.

Operating revenues from properties in the United States were $1.1 billion, $1.1 billion and $946.0 million and outside the United States were $349.1 million, $228.9 million and $116.7 million for the years ended December 31, 2013, 2012 and 2011, respectively. We had long-lived assets located in the United States of $5.6 billion, $5.0 billion and $4.3 billion and outside the United States of $2.7 billion, $2.5 billion and $1.0 billion as of December 31, 2013, 2012 and 2011, respectively.

Operating revenues from properties located in the United Kingdom were $197.0 million, $117.2 million and $43.6 million, or 13.3%, 9.2% and 4.1% of total operating revenues for the years ended December 31, 2013, 2012 and 2011, respectively. No other foreign country comprised more than 10% of total operating revenues for each of these years. We had long-lived assets located in the United Kingdom of $1.8 billion, $1.7 billion and $356.0 million, or 21.1%, 22.3% and 6.8% of total long-lived assets as of December 31, 2013, 2012 and 2011, respectively. No other foreign country comprised more than 10% of total long-lived assets as of each of December 31, 2013, 2012 and 2011.

(x) Recent Accounting Pronouncements

In 2013, the Financial Accounting Standards Board (“FASB”) issued new accounting guidance clarifying the accounting for the release of a cumulative translation adjustment into net income when a parent either sells a part or all of its investment in a foreign entity or no longer holds a controlling financial interest in a subsidiary or group of

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

assets that is a nonprofit activity or a business within a foreign entity. The new standard is effective for fiscal years, and interim periods within those fiscal years, beginning on or after December 15, 2013. We do not anticipate that this adoption will have a significant impact on our financial position, results of operations, or cash flows.

In 2013, the FASB issued new accounting guidance clarifying the accounting for obligations resulting from joint and several liability arrangements for which the total amount under the arrangement is fixed at the reporting date. The new standard is effective for fiscal years, and interim periods within those fiscal years, beginning on or after December 15, 2013. We do not anticipate that this adoption will have a significant impact on our financial position, results of operations, or cash flows.

3. Investments in Real Estate

A summary of our investments in properties as of December 31, 2013 and 2012 is as follows:

 

    As of December 31, 2013  
    (in thousands)  

Property Type

  Land     Acquired
Ground
Lease
    Building and
Improvements (1)
    Tenant
Improvements
    Accumulated
Depreciation
and
Amortization
    Net
Investment
in Properties
 

Internet Gateway Datacenters

  $ 117,863      $ —        $ 1,466,490      $ 100,481      $ (474,646   $ 1,210,188   

Corporate Datacenters

    534,776        13,296        7,031,664        382,219        (1,051,306     6,910,649   

Technology Manufacturing

    29,147        1,322        75,546        5,938        (24,044     87,909   

Technology Office

    9,840        —          52,031        1,854        (10,858     52,867   

Other

    2,165        —          54,946        —          (5,142     51,969   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
  $ 693,791      $ 14,618      $ 8,680,677      $ 490,492      $ (1,565,996   $ 8,313,582   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

    As of December 31, 2012  
    (in thousands)  

Property Type

  Land     Acquired
Ground
Lease
    Building and
Improvements (1)
    Tenant
Improvements
    Accumulated
Depreciation
and
Amortization
    Net
Investment
in Properties
 

Internet Gateway Datacenters

  $ 117,304      $ —        $ 1,406,586      $ 97,007      $ (399,060   $ 1,221,837   

Corporate Datacenters

    516,016        12,336        6,108,420        300,426        (773,449     6,163,749   

Technology Manufacturing

    20,602        1,322        66,396        5,938        (22,175     72,083   

Technology Office

    4,971        —          34,585        1,459        (7,958     33,057   

Other

    2,165        —          46,986        —          (3,375     45,776   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
  $ 661,058      $ 13,658      $ 7,662,973      $ 404,830      $ (1,206,017   $ 7,536,502   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Balance includes, as of December 31, 2013 and 2012, $1,053.2 million and $777.3 million of direct and accrued costs associated with work in progress, respectively.

 

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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

We acquired the following real estate properties during the years ended December 31, 2013 and 2012:

Acquisitions

 

Location

   Metropolitan Area    Date Acquired    Amount
(in  millions) (1)
 

17201 Waterview Parkway

   Dallas, Texas    January 31, 2013    $ 8.5   

1900 S. Price Road

   Phoenix, Arizona    January 31, 2013      24.0   

371 Gough Road

   Toronto, Canada    March 12, 2013      8.4   

1500 Towerview Road

   Minneapolis, Minnesota    March 27, 2013      37.0   

CarTech (2)

   London, England    April 2, 2013      3.6   

MetCenter Business Park (3)

   Austin, Texas    May 20, 2013      31.9   

Liverpoolweg 10 (4)

   Amsterdam, Netherlands    June 27, 2013      3.9   

Saito Industrial Park (2)

   Osaka, Japan    August 9, 2013      9.6   

Principal Park (2)

   London, England    September 23, 2013      19.3   

De President, Hoofddorp (2)

   Amsterdam, Netherlands    September 24, 2013      6.7   

636 Pierce Street (5)

   New York Metro    December 19, 2013      35.3   
        

 

 

 

Total Acquisitions—Year Ended December 31, 2013

         $ 188.2   
        

 

 

 

 

Location

   Metropolitan Area    Date Acquired    Amount
(in  millions) (1)
 

Convergence Business Park (6)

   Dallas, Texas    February 22, 2012    $ 123.0   

9333, 9355, 9377 Grand Avenue (7)

   Chicago, Illinois    May 10, 2012      22.3   

8025 North Interstate 35 (8)

   Austin, Texas    May 18, 2012      12.5   

400 S. Akard Street

   Dallas, Texas    June 13, 2012      75.0   

Sentrum Portfolio (9)

   London, England    July 11, 2012      1,138.6   

11900 East Cornell Avenue

   Denver, Colorado    September 14, 2012      90.8   

701 Union Boulevard

   New York Metro    November 1, 2012      16.8   

23 Waterloo Road

   Sydney, Australia    December 19, 2012      12.3   

Paris Portfolio (10)

   Paris, France    December 27, 2012      79.4   
        

 

 

 

Total Acquisitions—Year Ended
December 31, 2012

         $ 1,570.7   
        

 

 

 

 

(1) Purchase prices are all in U.S. dollars and exclude capitalized closing costs on land acquisitions. Purchase prices for acquisitions outside the United States are based on the exchange rate at the date of acquisition.
(2) Represents currently vacant land which is not included in our operating property count.
(3) MetCenter Business Park consists of three buildings at 8201 E. Riverside Drive and three buildings at 7401 E. Ben White Boulevard in the Austin metropolitan area. MetCenter Business Park is considered one property for our property count.
(4) Acquisition of a partially-built data center in Groningen, Netherlands for a purchase price of $3.9 million. We paid an additional $2.6 million in October 2013 upon completion of construction by the tenant, with the final payment of $1.4 million made in December 2013.
(5) In connection with the acquisition, we assumed a $26.4 million secured mortgage loan.
(6) Convergence Business Park is comprised of nine buildings along with undeveloped land. It is considered one property for our property count.
(7)

9333, 9355, 9377 Grand Avenue is comprised of three buildings. It is considered one property for our property count.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

(8) In connection with the acquisition, we assumed a $6.7 million secured mortgage loan.
(9) On July 11, 2012, we completed the acquisition of a three-property data center portfolio, totaling approximately 733,000 square feet, located in the greater London area, referred to as the Sentrum Portfolio. The purchase price was £734.6 million (equivalent to approximately $1.1 billion based on the July 11, 2012 exchange rate of £1.00 to $1.55). In addition, non-cash consideration of £56.5 million (or $87.6 million based on the July 11, 2012 exchange rate of £1.00 to $1.55) was recorded as the expected fair value of contingent consideration as required by prevailing accounting guidance. There was also a non-cash purchase adjustment related to deferred taxes, which amounted to £68.6 million (or $106.3 million based on the July 11, 2012 exchange rate of £1.00 to $1.55). The purchase price was paid in cash funded with proceeds from our common stock offering in July 2012 along with borrowings under our global revolving credit facility.
(10) The Paris Portfolio consists of 1 Rue Jean-Pierre, 127 Rue de Paris and Liet-dit le Christ de Saclay located in the Paris metropolitan area. The Paris Portfolio is considered three properties for our property count.

The table below reflects the purchase price allocation for the properties acquired in 2013 (in thousands):

 

Location

  Investments in Real
Estate
    Above-Market
Lease
    In-Place Lease     Below-Market
Lease
    Debt Premium     Acquisition Date
Fair-Value
 

17201 Waterview Parkway

  $ 8,479      $  —        $ 2,108      $ (2,087   $  —        $ 8,500   

1900 S. Price Road

    22,354        —          1,646        —          —          24,000   

371 Gough Road

    8,072        12        351        —          —          8,435   

1500 Towerview Road

    30,244        —          6,756        —          —          37,000   

CarTech

    3,599        —          —          —          —          3,599   

MetCenter Business Park

    28,918        191        4,840        (2,049     —          31,900   

Liverpoolweg 10

    3,855        —          —          —          —          3,855   

Saito Industrial Park

    9,649        —          —          —          —          9,649   

Principal Park

    19,253        —          —          —          —          19,253   

De President, Hoofddorp

    6,737        —          —          —          —          6,737   

636 Pierce Street

    33,425        —          5,110        (1,645     (1,640     35,250   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ 174,585      $ 203      $ 20,811      $ (5,781   $ (1,640   $ 188,178   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Weighted average remaining intangible amortization life (in months)

      32        108        98        112     

Operating revenues of $10.3 million and operating income of $2.6 million from the properties acquired in 2013 are included in the consolidated income statement for the year ended December 31, 2013.

The unaudited pro forma operating revenues and operating income of the Company, including the properties acquired in 2013 as if they had been acquired on January 1, 2012, are as follows:

 

     Year ended  
     Operating
Revenues
     Operating
Income
 
     (in millions)  

Supplemental pro forma for the periods ended December 31, 2013 (1)

   $ 1,489.2       $ 385.5   

Supplemental pro forma for the periods ended December 31, 2012 (1)

     1,296.3         371.7   

 

(1) These unaudited pro forma results do not purport to be indicative of what operating results would have been had the acquisitions occurred on January 1, 2012, and may not be indicative of future operating results.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

4. Investment in Unconsolidated Joint Ventures

As of December 31, 2013, our investment in unconsolidated joint ventures consists of effective 50% interests in joint ventures that own a data center property at 2001 Sixth Avenue in Seattle, Washington, a data center property at 2020 Fifth Avenue in Seattle, Washington and a development property at 33 Chun Choi Street in Hong Kong, and a 20% interest in a joint venture with an investment fund managed by Prudential Real Estate Investors (PREI ® ). The following tables present summarized financial information for the joint ventures for the years ended December 31, 2013, 2012, and 2011 (in thousands):

 

2013

  %
Ownership
    Net Investment
in Properties
    Total
Assets
    Mortgage
Loans
    Total
Liabilities
    Equity /
(Deficit)
    Revenues     Property
Operating
Expense
    Net
Operating
Income
    Net
Income
(Loss)
 

Unconsolidated Joint Ventures

                   

2001 Sixth Avenue

    50.00   $ 33,980     $ 39,674     $ 105,953     $ 111,943     $ (72,269   $ 37,625     $ (11,981   $ 25,644     $ 12,346  

700/750 Central Expressway

    50.00     —          —          —          —          —          55       (1     54       58  

2020 Fifth Avenue

    50.00     47,901       53,389       47,000       47,525       5,864       7,513       (522     6,991       5,756  

33 Chun Choi Street (Hong Kong)

    50.00     102,428       122,890       —          8,382       114,508       —          (44     (44     (150

PREI ®

    20.00     400,528       460,062       185,000       276,212       183,850       9,577       (4,479     5,098       2,641  
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total Unconsolidated Joint Ventures

    $ 584,837     $ 676,015     $ 337,953     $ 444,062     $ 231,953     $ 54,770     $ (17,027   $ 37,743     $ 20,651  
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Our investment in and share of equity in earnings of unconsolidated joint ventures

            $ 70,504           $ 9,796  
           

 

 

         

 

 

 

2012

  %
Ownership
    Net Investment
in Properties
    Total
Assets
    Mortgage
Loans
    Total
Liabilities
    Equity /
(Deficit)
    Revenues     Property
Operating
Expense
    Net
Operating
Income
    Net
Income
(Loss)
 

Unconsolidated Joint Ventures

                   

2001 Sixth Avenue

    50.00   $ 33,397     $ 40,340     $ 107,294     $ 113,207     $ (72,867   $ 35,031     $ (10,266   $ 24,765     $ 11,823  

700/750 Central Expressway

    50.00     —          879       —          496       383       1,798       (582     1,216       4,389  

2020 Fifth Avenue

    50.00     46,339       47,680       —          1,543       46,137       —          (38     (38     (38

33 Chun Choi Street (Hong Kong)

    50.00     33,144       72,391       —          953       71,438       —          (24     (24     (44
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total Unconsolidated Joint Ventures

    $ 112,880     $ 161,290     $ 107,294     $ 116,199     $ 45,091     $ 36,829     $ (10,910   $ 25,919     $ 16,130  
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Our investment in and share of equity in earnings of unconsolidated joint ventures

            $ 66,634           $ 8,135  
           

 

 

         

 

 

 

2011

  %
Ownership
    Net Investment
in Properties
    Total
Assets
    Mortgage
Loans
    Total
Liabilities
    Equity /
(Deficit)
    Revenues     Property
Operating
Expense
    Net
Operating
Income
    Net
Income
(Loss)
 

Unconsolidated Joint Ventures

                   

2001 Sixth Avenue

    50.00   $ 34,512     $ 42,096     $ 108,532     $ 114,284     $ (72,188   $ 32,716     $ (9,592   $ 23,124     $ 9,822  

700/750 Central Expressway

    50.00     43,086       52,352       25,000       38,830       13,522       4,776       (1,053     3,723       (677

2020 Fifth Avenue

    16.40     26,645       28,439       —          1,044       27,395       37       (49     (12     (12
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total Unconsolidated Joint Ventures

    $ 104,243     $ 122,887     $ 133,532     $ 154,158     $ (31,271   $ 37,529     $ (10,694   $ 26,835     $ 9,133  
   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Our investment in and share of equity in earnings of unconsolidated joint ventures

            $ 23,976           $ 4,952  
           

 

 

         

 

 

 

 

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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

Our investment in the 2001 Sixth Avenue joint venture included in our consolidated balance sheet exceeds our equity presented in the joint venture’s balance sheet since our purchase accounting adjustments are not pushed down to the joint venture.

In March 2012, we entered into a joint venture with Savvis, Inc., a CenturyLink company. On June 26, 2012, this unconsolidated joint venture acquired a 164,000 square foot property in Hong Kong. The property is located at 33 Chun Choi Street in Hong Kong. As of December 31, 2013, we have contributed approximately $57.4 million to this joint venture.

PREI ® Joint Venture

On September 27, 2013, we formed a joint venture with an investment fund managed by Prudential Real Estate Investors (PREI ® ). We contributed nine Powered Base Building ® data centers valued at approximately $366.4 million plus 20% of $2.8 million of closing costs. The PREI ® -managed fund contributed cash equal to their 80% interest in the joint venture assets at fair value and we retained a 20% interest. The joint venture is structured to provide a current annual preferred return from cash flow first to the PREI ® -managed interest, then to our interest, after which a portion of any excess cash flows is shared by the partners based on their respective interests and the remaining portion is paid to us as a promote interest. We perform the day-to-day accounting and property management functions for the joint venture and, as such, will earn a management fee. Although we are the managing member of the joint venture and manage the day-to-day activities, all significant decisions, including approval of annual budgets, require approval of the PREI-managed member. Thus, we concluded we do not own a controlling interest and will account for our interest in the joint venture as an equity method investment.

The joint venture has arranged a $185.0 million five-year unsecured bank loan at LIBOR plus 180 basis points, representing a loan-to-value ratio of approximately 50%. Proceeds from the debt offset the contribution amounts required of the partners. The transaction generated approximately $328.6 million of net proceeds to us, comprised of our share of the initial draw-down on the bank loan in addition to the PREI ® fund’s equity contribution, less our share of closing costs and accordingly we recognized a gain of approximately $115.6 million on the sale of the 80% interest in the nine properties during the year ended December 31, 2013.

The operations of properties that we contributed to the joint venture are not recorded as discontinued operations because of our continuing involvement with these investment properties. Differences between the Company’s investment in the joint venture and the amount of the underlying equity in net assets of the joint venture are due to basis differences resulting from the Company’s equity investment recorded at its historical basis versus the fair value of the Company’s contributed interest in the joint venture. Our proportionate share of the earnings or losses related to this unconsolidated joint venture is reflected as equity in earnings of unconsolidated joint ventures on the accompanying consolidated income statements.

The table below presents properties contributed to the PREI ® joint venture at their fair value as of the contribution date (dollars in thousands).

 

Date

  

Property

  

Metropolitan Area

   Square Feet      Gross Value  

9/27/2013

   4700 Old Ironsides Drive    Silicon Valley      90,139       $ 29,064   

9/27/2013

   4650 Old Ironsides Drive    Silicon Valley      124,383         56,258   

9/27/2013

   7505 Mason King Court    Northern Virginia      109,650         25,475   

9/27/2013

   43790 Devin Shafron Drive    Northern Virginia      152,138         45,505   

9/27/2013

   444 Toyama Drive    Silicon Valley      42,083         28,310   

9/27/2013

   21551 Beaumeade Circle    Northern Virginia      152,504         30,700   

9/27/2013

   2950 Zanker Road    Silicon Valley      69,700         45,669   

9/27/2013

   900 Dorothy Drive    Dallas      56,176         25,383   

9/27/2013

   14901 FAA Boulevard    Dallas      263,700         80,056   
           1,060,473       $ 366,420   

 

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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

As properties are contributed to the joint venture with PREI ® , the net assets are removed from the consolidated financial statements. The table below reflects the carrying values of properties contributed to the joint venture as of the contribution date (in thousands).

 

Net investment in properties

   $ 181,032   

Acquired above market leases, net

     1,207   

Acquired in place lease value and deferred leasing costs, net

     11,459   

Acquired below market leases, net

     (483
  

 

 

 

Net assets contributed

   $ 193,215   
  

 

 

 

We amortize the difference between the cost of our investment in the joint venture with PREI ® and the book value of the underlying equity into income on a straight-line basis consistent with the lives of the underlying assets. The amortization of this difference was approximately $0.1 million for the year ended December 31, 2031.

5. Acquired Intangible Assets and Liabilities

The following summarizes our acquired intangible assets (acquired in place lease value and acquired above-market lease value) and intangible liabilities (acquired below-market lease value) as of December 31, 2013 and December 31, 2012.

 

     Balance as of  

(Amounts in thousands)

   December 31,
2013
    December 31,
2012
 

Acquired in place lease value:

    

Gross amount

   $ 725,458      $ 720,373   

Accumulated amortization

     (423,549     (367,088
  

 

 

   

 

 

 

Net

   $ 301,909      $ 353,285   
  

 

 

   

 

 

 

Acquired above market leases:

    

Gross amount

   $ 132,750      $ 134,480   

Accumulated amortization

     (80,486     (69,425
  

 

 

   

 

 

 

Net

   $ 52,264      $ 65,055   
  

 

 

   

 

 

 

Acquired below market leases:

    

Gross amount

   $ 291,638      $ 285,509   

Accumulated amortization

     (161,369     (137,276
  

 

 

   

 

 

 

Net

   $ 130,269      $ 148,233   
  

 

 

   

 

 

 

Amortization of acquired below-market lease value, net of acquired above-market lease value, resulted in an increase to rental revenues of $11.7 million and $10.3 million for the years ended December 31, 2013 and 2012, respectively. The expected average remaining lives for acquired below market leases and acquired above market leases is 6.5 years and 4.5 years, respectively, as of December 31, 2013. Estimated annual amortization of

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

acquired below-market lease value, net of acquired above-market lease value, for each of the five succeeding years and thereafter, commencing January 1, 2014 is as follows:

 

(Amounts in thousands)

      

2014

   $ 10,094   

2015

     9,036   

2016

     7,726   

2017

     6,229   

2018

     3,114   

Thereafter

     41,806   
  

 

 

 

Total

   $ 78,005   
  

 

 

 

Amortization of acquired in place lease value (a component of depreciation and amortization expense) was $62.7 million and $54.0 million for the years ended December 31, 2013 and 2012, respectively. The expected average amortization period for acquired in place lease value is 6.6 years as of December 31, 2013. The weighted average remaining contractual life for acquired leases excluding renewals or extensions is 5.1 years as of December 31, 2013. Estimated annual amortization of acquired in place lease value for each of the five succeeding years and thereafter, commencing January 1, 2014 is as follows:

 

(Amounts in thousands)

      

2014

   $ 54,900   

2015

     44,495   

2016

     41,381   

2017

     28,566   

2018

     26,300   

Thereafter

     106,267   
  

 

 

 

Total

   $ 301,909   
  

 

 

 

6. Debt of the Company

In this Note 6, the “Company” refers only to Digital Realty Trust, Inc. and not to any of its subsidiaries.

The Company itself does not have any indebtedness. All debt is held directly or indirectly by the Operating Partnership.

Guarantee of Debt

The Company guarantees the Operating Partnership’s obligations with respect to its 5.50% exchangeable senior debentures due 2029 (2029 Debentures), 4.50% notes due 2015 (2015 Notes), 5.875% notes due 2020 (2020 Notes), 5.250% notes due 2021 (2021 Notes), 3.625% notes due 2022 (2022 Notes) and its unsecured senior notes sold to Prudential Investment Management, Inc. and certain of its affiliates pursuant to the Amended and Restated Note Purchase and Private Shelf Agreement, as amended, which we refer to as the Prudential shelf facility. The Company and the Operating Partnership guarantee the obligations of Digital Stout Holding, LLC, a wholly owned subsidiary of the Operating Partnership, with respect to its 4.250% notes due 2025 (2025 Notes).

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

The Company is also the guarantor of the Operating Partnership’s and its subsidiary borrowers’ obligations under the global revolving credit facility and unsecured term loan.

7. Debt of the Operating Partnership

A summary of outstanding indebtedness of the Operating Partnership as of December 31, 2013 and 2012 is as follows (in thousands):

 

Indebtedness

  Interest Rate at
December 31, 2013
    Maturity Date     Principal
Outstanding
December 31,
2013
    Principal
Outstanding
December 31,
2012
 

Global revolving credit facility

    Various (1)           Nov. 3, 2017      $ 724,668 (2)     $ 723,729 (2)  
     

 

 

   

 

 

 

Unsecured term loan

    Various (3)(9)       Apr. 16, 2017      $ 1,020,984 (4)     $ 757,839 (4)  
     

 

 

   

 

 

 

Unsecured senior notes:

       

Prudential Shelf Facility:

       

Series B

    9.320     Nov. 5, 2013        —   (13)       33,000   

Series C

    9.680     Jan. 6, 2016        25,000        25,000   

Series D

    4.570     Jan. 20, 2015        50,000        50,000   

Series E

    5.730     Jan. 20, 2017        50,000        50,000   

Series F

    4.500     Feb. 3, 2015        17,000        17,000   
     

 

 

   

 

 

 

Total Prudential Shelf Facility

        142,000        175,000   

Senior Notes:

       

4.50% notes due 2015

    4.500     Jul. 15, 2015        375,000        375,000   

5.875% notes due 2020

    5.875     Feb. 1, 2020        500,000        500,000   

5.25% notes due 2021

    5.250     Mar. 15, 2021        400,000        400,000   

3.625% notes due 2022

    3.625     Oct. 1, 2022        300,000        300,000   

4.25% notes due 2025

    4.250     Jan. 17, 2025        662,280 (10)       —     

Unamortized discounts

        (15,048     (11,779
     

 

 

   

 

 

 

Total senior notes, net of discount

        2,222,232        1,563,221   
     

 

 

   

 

 

 

Total unsecured senior notes, net of discount

        2,364,232        1,738,221   
     

 

 

   

 

 

 

Exchangeable senior debentures:

       

5.50% exchangeable senior debentures due 2029

    5.500     Apr. 15, 2029 (5)       266,400        266,400   
     

 

 

   

 

 

 

Total exchangeable senior debentures

        266,400        266,400   
     

 

 

   

 

 

 

Mortgage loans:

       

Secured Term Debt (6)(7)

    5.65     Nov. 11, 2014        132,966        135,991   

200 Paul Avenue (7)

    5.74     Oct. 8, 2015        70,713        72,646   

Mundells Roundabout

   
 
3-month GBP
LIBOR + 1.20
  
%
(9)  
    Nov. 30, 2013        —   (13)       69,612 (10)  

2045 & 2055 LaFayette Street (7)

    5.93     Feb. 6, 2017        63,623        64,621   

34551 Ardenwood Boulevard 1-4 (7)

    5.95     Nov. 11, 2016        52,152        52,916   

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

Indebtedness

  Interest Rate at
December 31, 2013
    Maturity Date     Principal
Outstanding
December 31,
2013
    Principal
Outstanding
December 31,
2012
 

1100 Space Park Drive (7)

    5.89     Dec. 11, 2016        52,115        52,889   

600 West Seventh Street

    5.80     Mar. 15, 2016        49,548        51,174   

150 South First Street (7)

    6.30     Feb. 6, 2017        50,097        50,830   

360 Spear Street (7)

    6.32     Nov. 8, 2013        —   (13)       46,613   

Clonshaugh Industrial Estate II (8)

    3-month EURIBOR + 4.50     Sep. 4, 2014        —   (13)       39,579 (11)  

2334 Lundy Place (7)

    5.96     Nov. 11, 2016        37,930        38,486   

1500 Space Park Drive (7)

    6.15     Oct. 5, 2013        —   (13)       35,682   

Cressex 1 (12)

    5.68     Oct. 16, 2014        28,583 (10)       28,560 (10)  

636 Pierce Street

    5.27     Apr. 15, 2023        26,327        —     

Paul van Vlissingenstraat 16

    3-month EURIBOR + 1.60 % (9)       Jul. 18, 2013        —   (13)       13,336 (11)  

Chemin de l’Epinglier 2

    3-month EURIBOR + 1.50 % (9)       Jul. 18, 2013        —   (13)       9,649 (11)  

Gyroscoopweg 2E-2F

    3-month EURIBOR + 1.50 % (9)       Oct. 18, 2013        —   (13)       8,492 (11)  

Manchester Technopark (12)

    5.68     Oct. 16, 2014        8,695 (10)       8,688 (10)  

8025 North Interstate 35

    4.09     Mar. 6, 2016        6,314        6,561   

731 East Trade Street

    8.22     Jul. 1, 2020        4,186        4,509   

Unamortized net premiums

        2,359        1,542   
     

 

 

   

 

 

 

Total mortgage loans, net of premiums

        585,608        792,376   
     

 

 

   

 

 

 

Total indebtedness

      $ 4,961,892      $ 4,278,565   
     

 

 

   

 

 

 

 

(1) The interest rate for borrowings under the global revolving credit facility equals the applicable index plus a margin of 110 basis points, which is based on the credit rating of our long-term debt. An annual facility fee of 20 basis points, which is based on the credit rating of our long-term debt, is due and payable quarterly on the total commitment amount of the facility. Two six-month extensions are available, which we may exercise if certain conditions are met.
2) Balances as of December 31, 2013 and December 31, 2012 are as follows (balances, in thousands):

 

Denomination of Draw

  Balance as of
December 31,
2013
    Weighted-average
interest rate
    Balance as of
December 31,
2012
    Weighted-average
interest rate
 

Floating Rate Borrowing (a)

       

U.S. dollar ($)

  $ 466,000        1.27   $ 35,000        1.47

British pound sterling (£)

    —          —          433,195 (d)       1.75

Euro (€)

    78,335 (c)       1.33     87,074 (d)       1.36

Singapore dollar (SGD)

    —          —          26,191 (d)       1.56

Australian dollar (AUD)

    67,212 (c)       3.70     93,754 (d)       4.42

Hong Kong dollar (HKD)

    57,390 (c)       1.31     34,515 (d)       1.53

Japanese yen (JPY)

    12,858 (c)       1.21     —          —     

Canadian dollar (CAD)

    14,873 (c)       2.32     —          —     
 

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ 696,668        1.53   $ 709,729        2.02
 

 

 

   

 

 

   

 

 

   

 

 

 

Base Rate Borrowing (b)

       

U.S. dollar ($)

  $ 28,000        3.35   $ 14,000        3.50
 

 

 

   

 

 

   

 

 

   

 

 

 

Total borrowings

  $ 724,668        1.60   $ 723,729        2.05
 

 

 

   

 

 

   

 

 

   

 

 

 

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

 

  (a) The interest rates for floating rate borrowings under the global revolving credit facility equal the applicable index plus a margin of 110 basis points and 125 basis points as of December 31, 2013 and 2012, respectively, which are based on the credit rating of our long-term debt.
  (b) The interest rates for base rate borrowings under the global revolving credit facility equal the U.S. Prime Rate plus a margin of 10 basis points and 25 basis points as of December 31, 2013 and 2012, respectively, which are based on the credit rating of our long-term debt.
  (c) Based on exchange rates of $1.37 to €1.00, $0.89 to 1.00 AUD, $0.13 to 1.00 HKD, $0.01 to 1.00 JPY and $0.94 to 1.00 CAD, respectively, as of December 31, 2013.
  (d) Based on exchange rates of $1.63 to £1.00, $1.32 to €1.00, $0.82 to 1.00 SGD, $1.04 to 1.00 AUD and $0.13 to 1.00 HKD, respectively, as of December 31, 2012.
(3) Interest rates are based on our senior unsecured debt ratings and are 120 basis points and 145 basis points over the applicable index for floating rate advances as of December 31, 2013 and 2012, respectively. Two six-month extensions are available, which we may exercise if certain conditions are met.
(4) Balances as of December 31, 2013 and December 31, 2012 are as follows (balances, in thousands):

 

Denomination of Draw

   Balance as of
December 31,
2013
    Weighted-average
interest rate
    Balance as of
December 31,
2012
    Weighted-average
interest rate
 

U.S. dollar ($)

   $ 410,905        1.37 % (b)     $ 410,905        1.66 % (d)  

Singapore dollar (SGD)

     180,918 (a)       1.40 % (b)       155,098 (c)       1.77 % (d)  

British pound sterling (£)

     200,216 (a)       1.72     91,191 (c)       1.94

Euro (€)

     136,743 (a)       1.43     65,305 (c)       1.56

Australian dollar (AUD)

     92,202 (a)       3.78     35,340 (c)       4.57
  

 

 

   

 

 

   

 

 

   

 

 

 

Total

   $ 1,020,984        1.67 % (b)     $ 757,839        1.84 % (d)  
  

 

 

   

 

 

   

 

 

   

 

 

 

 

  (a) Based on exchange rates of $0.79 to 1.00 SGD, $1.66 to £1.00, $1.37 to €1.00 and $0.89 to 1.00 AUD, respectively, as of December 31, 2013.
  (b) As of December 31, 2013, the weighted-average interest rate reflecting interest rate swaps was 1.92% (U.S. dollar), 2.00% (Singapore dollar) and 2.00% (Total). See Note [14] for further discussion on interest rate swaps.
  (c) Based on exchange rates of $0.82 to 1.00 SGD, $1.63 to £1.00, $1.32 to €1.00 and $1.04 to 1.00 AUD, respectively, as of December 31, 2012.
  (d) As of December 31, 2012, the weighted-average interest rate reflecting interest rate swaps was 2.17% (U.S. dollar), 2.38% (Singapore dollar) and 2.24% (Total). See Note [14] for further discussion on interest rate swaps.
(5) The holders of the debentures have the right to require the Operating Partnership to repurchase the debentures in cash in whole or in part for a price of 100% of the principal amount plus accrued and unpaid interest on each of April 15, 2014, April 15, 2019 and April 15, 2024. We have the right to redeem the debentures in cash for a price of 100% of the principal amount plus accrued and unpaid interest commencing on April 18, 2014.
(6) This amount represents six mortgage loans secured by our interests in 36 NE 2nd Street, 3300 East Birch Street, 100 & 200 Quannapowitt Parkway, 300 Boulevard East, 4849 Alpha Road, and 11830 Webb Chapel Road. Each of these loans is cross-collateralized by the six properties.
(7) The respective borrower’s assets and credit are not available to satisfy the debts and other obligations of affiliates or any other person.
(8) The Operating Partnership or its subsidiary provides a limited recourse guarantee with respect to this loan.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

(9) We have entered into interest rate swap agreements as a cash flow hedge for interest generated by these US LIBOR, EURIBOR and GBP LIBOR based loans as well as the U.S. Dollar and Singapore Dollar tranches of the unsecured term loan. See note 14 for further information.
(10) Based on exchange rate of $1.66 to £1.00 as of December 31, 2013 and $1.63 to £1.00 as of December 31, 2012.
(11) Based on exchange rate of $1.37 to €1.00 as of December 31, 2013 and $1.32 to €1.00 as of December 31, 2012.
(12) These loans are also secured by a £7.8 million letter of credit. These loans are cross-collateralized by the two properties.
(13) These loans were repaid in full in 2013: Clonshaugh Industrial Estate II (June 2013), 1500 Space Park Drive (July 2013), Paul van Vlissingenstraat 16 (July 2013), Chemin de l’Epinglier 2 (July 2013), Mundells Roundabout (October 2013), Gyroscoopweg 2E-2F (October 2013) and 360 Spear Street (November 2013). Net loss from early extinguishment of debt related to write-off of unamortized deferred loan costs and swap breakage fees amounted to $1.8 million for the year ended December 31, 2013.

Global Revolving Credit Facility

On August 15, 2013, the Operating Partnership refinanced its revolving credit facility, which we refer to as the global revolving credit facility, increasing its total borrowing capacity to $2.0 billion from $1.8 billion. The global revolving credit facility has an accordion feature that would enable us to increase the borrowing capacity of the credit facility to $2.55 billion, subject to the receipt of lender commitments and other conditions precedent. The refinanced facility matures on November 3, 2017, with two six-month extension options. The interest rate for borrowings under the expanded facility equals the applicable index plus a margin which is based on the credit rating of our long-term debt and is currently 110 basis points. An annual facility fee on the total commitment amount of the facility, based on the credit rating of our long-term debt and currently 20 basis points, is payable quarterly. Funds may be drawn in U.S., Canadian, Singapore, Australian and Hong Kong dollars, as well as Euro, British pound sterling, Swiss franc, Japanese yen and Mexican peso denominations. As of December 31, 2013, borrowings under the global revolving credit facility bore interest at an overall blended rate of 1.60% comprised of 1.27% (U.S. dollars), 1.33% (Euros), 3.70% (Australian dollars), 1.31% (Hong Kong dollars), 1.21% (Japanese yen) and 2.32% (Canadian dollars). The interest rates are based on 1-month LIBOR, 1-month EURIBOR, 1-month BBR, 1-month HIBOR, 1-month JPY LIBOR and 1-month CDOR, respectively, plus a margin of 1.10%. The facility also bore a base borrowing rate of 3.35% (USD) which is based on U.S. Prime Rate plus a margin of 0.10%. We have used and intend to use available borrowings under the global revolving credit facility to acquire additional properties, fund development opportunities and to provide for working capital and other corporate purposes, including potentially for the repurchase, redemption or retirement of outstanding debt or preferred equity securities. As of December 31, 2013, we have capitalized approximately $17.9 million of financing costs related to the global revolving credit facility. As of December 31, 2013, approximately $724.7 million was drawn under this facility and $20.6 million of letters of credit were issued.

The global revolving credit facility contains various restrictive covenants, including limitations on our ability to incur additional indebtedness, make certain investments or merge with another company, and requirements to maintain financial coverage ratios, including with respect to unencumbered assets. In addition, the global revolving credit facility restricts Digital Realty Trust, Inc. from making distributions to its stockholders, or redeeming or otherwise repurchasing shares of its capital stock, after the occurrence and during the continuance of an event of default, except in limited circumstances including as necessary to enable Digital Realty Trust, Inc. to maintain its qualification as a REIT and to minimize the payment of income or excise tax. As of December 31, 2013, we were in compliance with all of such covenants.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

Unsecured Term Loan

On August 15, 2013, we refinanced the senior unsecured multi-currency term loan facility, increasing its total borrowing capacity to $1.0 billion from $750.0 million, and pursuant to the accordion feature total commitments can be increased up to $1.1 billion, subject to the receipt of lender commitments and other conditions precedent. The facility matures on April 16, 2017, with two six-month extension options. Interest rates are based on our senior unsecured debt ratings and are currently 120 basis points over the applicable index for floating rate advances. Funds may be drawn in U.S, Singapore and Australian dollars, as well as Euro and British pound sterling denominations with the option to add Hong Kong dollars and Japanese yen upon an accordion exercise. Based on exchange rates in effect at December 31, 2013, the balance outstanding is approximately $1,021.0 million. We have used borrowings under the term loan for acquisitions, repayment of indebtedness, development, working capital and general corporate purposes. The covenants under this loan are consistent with our global revolving credit facility and, as of December 31, 2013, we were in compliance with all of such covenants. As of December 31, 2013, we have capitalized approximately $8.4 million of financing costs related to the unsecured term loan.

Unsecured Senior Notes

Prudential Shelf Facility

On January 20, 2010, the Operating Partnership closed the sale of $100.0 million aggregate principal amount of its senior unsecured term notes to Prudential Investment Management, Inc. and certain of its affiliates, or, collectively, Prudential, pursuant to a Note Purchase and Private Shelf Agreement, which we refer to as the Prudential shelf facility. The notes were issued in two series referred to as the series D and series E notes. The series D notes have a principal amount of $50.0 million, an interest-only rate of 4.57% per annum and a five-year maturity, and the series E notes have a principal amount of $50.0 million, an interest-only rate of 5.73% per annum and a seven-year maturity. On February 3, 2010, the Operating Partnership closed the sale of an additional $17.0 million aggregate principal amount of its senior unsecured term notes, which we refer to as the series F notes, to Prudential pursuant to the Prudential shelf facility. The series F notes have an interest-only rate of 4.50% per annum and a five-year maturity. We used the proceeds of the series D, series E and series F notes to fund acquisitions, to temporarily repay borrowings under our corporate revolving credit facility, to fund working capital and for general corporate purposes. The sale of the series A ($25.0 million), series B ($33.0 million) and series C ($25.0 million) were completed in July 2008, November 2008 and January 2009, respectively. We may prepay the notes of any series, in whole or in part, at any time at a price equal to the principal amount and accrued interest of the notes being prepaid, plus a make-whole provision. On December 8, 2010, the Operating Partnership and Prudential entered into an amendment to the Note Purchase and Private Shelf Agreement, increasing the capacity of the Prudential shelf facility from $200.0 million to $250.0 million. Our ability to make additional issuances of notes under the Prudential shelf facility expired on July 24, 2011, with $50.0 million remaining unissued under the shelf facility. On July 25, 2011, we repaid the $25.0 million of 7.0% Series A unsecured notes under the Prudential shelf facility at maturity. On November 5, 2013, we repaid the $33.0 million of 9.32% Series B unsecured notes under the Prudential shelf facility at maturity. As of December 31, 2013 and 2012, there was $142.0 million and $175.0 million of unsecured senior notes outstanding, respectively.

On August 15, 2013, concurrent with the refinancing of the global revolving credit facility, the Operating Partnership and Digital Realty Trust, Inc. and the other subsidiary guarantors set forth therein entered into Amendment No.1 to the Amended and Restated Note Purchase and Private Shelf Agreement with Prudential to conform the restrictive and financial covenants of the original Prudential shelf facility that apply to the outstanding Series B, C, D, E and F Notes under the Prudential shelf facility to those in the global revolving

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

credit facility described above and, subject to the completion of specified conditions, to authorize the potential issuance and sale of up to $50.0 million of additional senior unsecured fixed-rate term notes. The Prudential shelf facility contains restrictive covenants that are identical to those in our global revolving credit facility.

Senior Notes

4.500% Notes due 2015

On July 8, 2010, the Operating Partnership issued $375.0 million aggregate principal amount of notes, maturing on July 15, 2015 with an interest rate of 4.50% per annum (the 2015 Notes). The purchase price paid by the initial purchasers was 99.697% of the principal amount. The 2015 Notes are general unsecured senior obligations of the Operating Partnership, rank equally in right of payment with all other senior unsecured indebtedness of the Operating Partnership and are fully and unconditionally guaranteed by Digital Realty Trust, Inc. Interest on the 2015 Notes is payable on January 15 and July 15 of each year, beginning on January 15, 2011. The net proceeds from the offering after deducting the original issue discount of approximately $1.1 million and underwriting commissions and expenses of approximately $3.1 million was approximately $370.8 million.

The indenture governing the 2015 Notes contains certain covenants, including (1) a leverage ratio not to exceed 60%, (2) a secured debt leverage ratio not to exceed 40% and (3) an interest coverage ratio of greater than 1.50, and also requires us to maintain total unencumbered assets of not less than 150% of the aggregate principal amount of unsecured debt. At December 31, 2013, we were in compliance with each of these financial covenants.

We entered into a registration rights agreement whereby the Operating Partnership agreed to conduct an offer to exchange the 2015 Notes for a new series of publicly registered notes with substantially identical terms. If the Operating Partnership did not fulfill certain of its obligations under the registration rights agreement, it would have been required to pay liquidated damages to the holders of the 2015 Notes. No separate contingent obligation was recorded as no liquidated damages became probable. We filed a registration statement with the U.S. Securities and Exchange Commission in October 2010 in connection with the exchange offer, which was declared effective in December 2010. We completed the exchange offer on January 19, 2011.

5.875% Notes due 2020

On January 28, 2010, the Operating Partnership issued $500.0 million aggregate principal amount of notes, maturing on February 1, 2020 with an interest rate of 5.875% per annum (the 2020 Notes). The purchase price paid by the initial purchasers was 98.296% of the principal amount. The 2020 Notes are general unsecured senior obligations of the Operating Partnership, rank equally in right of payment with all other senior unsecured indebtedness of the Operating Partnership and are fully and unconditionally guaranteed by Digital Realty Trust, Inc. Interest on the 2020 Notes is payable on February 1 and August 1 of each year, beginning on August 1, 2010. The net proceeds from the offering after deducting the original issue discount of approximately $8.5 million and underwriting commissions and expenses of approximately $4.4 million was approximately $487.1 million. The 2020 Notes have been reflected net of discount in the consolidated balance sheet.

The indenture governing the 2020 Notes contains certain covenants, including (1) a leverage ratio not to exceed 60%, (2) a secured debt leverage ratio not to exceed 40% and (3) an interest coverage ratio of greater than 1.50, and also requires us to maintain total unencumbered assets of not less than 150% of the aggregate principal amount of unsecured debt. At December 31, 2013, we were in compliance with each of these financial covenants.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

We entered into a registration rights agreement whereby the Operating Partnership agreed to conduct an offer to exchange the 2020 Notes for a new series of publicly registered notes with substantially identical terms. If the Operating Partnership did not fulfill certain of its obligations under the registration rights agreement, it would have been required to pay liquidated damages to the holders of the 2020 Notes. No separate contingent obligation was recorded as no liquidated damages became probable. We filed a registration statement with the U.S. Securities and Exchange Commission in June 2010 in connection with the exchange offer, which was declared effective in September 2010. We completed the exchange offer on November 5, 2010.

5.250% Notes due 2021

On March 8, 2011, the Operating Partnership issued $400.0 million aggregate principal amount of notes, maturing on March 15, 2021 with an interest rate of 5.250% per annum (the 2021 Notes). The purchase price paid by the initial purchasers was 99.775% of the principal amount. The 2021 Notes are general unsecured senior obligations of the Operating Partnership, rank equally in right of payment with all other senior unsecured indebtedness of the Operating Partnership and are fully and unconditionally guaranteed by Digital Realty Trust, Inc. Interest on the 2021 Notes is payable on March 15 and September 15 of each year, beginning on September 15, 2011. The net proceeds from the offering after deducting the original issue discount of approximately $0.9 million and underwriting commissions and expenses of approximately $3.6 million was approximately $395.5 million. The 2021 Notes have been reflected net of discount in the consolidated balance sheet.

The indenture governing the 2021 Notes contains certain covenants, including (1) a leverage ratio not to exceed 60%, (2) a secured debt leverage ratio not to exceed 40% and (3) an interest coverage ratio of greater than 1.50, and also requires us to maintain total unencumbered assets of not less than 150% of the aggregate principal amount of unsecured debt. At December 31, 2013, we were in compliance with each of these financial covenants.

3.625% Notes due 2022

On September 24, 2012, the Operating Partnership issued $300.0 million in aggregate principal amount of notes, maturing on October 1, 2022 with an interest rate of 3.625% per annum (the 2022 Notes). The purchase price paid by the initial purchasers was 98.684% of the principal amount. The 2022 Notes are general unsecured senior obligations of the Operating Partnership, rank equally in right of payment with all other senior unsecured indebtedness of the Operating Partnership and are fully and unconditionally guaranteed by Digital Realty Trust, Inc. Interest on the 2022 Notes is payable on April 1 and October 1 of each year, beginning on April 1, 2013. The net proceeds from the offering after deducting the original issue discount of approximately $3.9 million and underwriting commissions and expenses of approximately $3.0 million was approximately $293.1 million. We used the net proceeds from this offering to temporarily repay borrowings under our global revolving credit facility. The 2022 Notes have been reflected net of discount in the consolidated balance sheet.

The indenture governing the 2022 Notes contains certain covenants, including (1) a leverage ratio not to exceed 60%, (2) a secured debt leverage ratio not to exceed 40% and (3) an interest coverage ratio of greater than 1.50, and also requires us to maintain total unencumbered assets of not less than 150% of the aggregate principal amount of unsecured debt. At December 31, 2013, we were in compliance with each of these financial covenants.

4.250% Notes due 2025

On January 18, 2013, Digital Stout Holding, LLC, a wholly-owned subsidiary of the Operating Partnership, issued £400.0 million (or approximately $634.8 million based on the exchange rate of £1.00 to $1.59 on

 

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December 31, 2013 and 2012

 

January 18, 2013) aggregate principal amount of its 4.250% Guaranteed Notes due 2025, or the 2025 Notes. The 2025 Notes are senior unsecured obligations of Digital Stout Holding, LLC and are fully and unconditionally guaranteed by the Company and the Operating Partnership. Interest on the 2025 Notes is payable semiannually in arrears at a rate of 4.250% per annum. The net proceeds from the offering after deducting the original issue discount of approximately $4.8 million and underwriting commissions and estimated expenses of approximately $5.8 million was approximately $624.2 million. We used the net proceeds from this offering to temporarily repay borrowings under our global revolving credit facility. The 2025 Notes have been reflected net of discount in the consolidated balance sheet. The indenture governing the 2025 Notes contains certain covenants, including (1) a leverage ratio not to exceed 60%, (2) a secured debt leverage ratio not to exceed 40% and (3) an interest coverage ratio of greater than 1.50, and also requires us to maintain total unencumbered assets of not less than 150% of the aggregate principal amount of the unsecured debt. At December 31, 2013, we were in compliance with all of such covenants.

Exchangeable Senior Debentures

5.50% Exchangeable Senior Debentures due 2029

On April 20, 2009, the Operating Partnership issued $266.4 million of its 5.50% exchangeable senior debentures due April 15, 2029 (the 2029 Debentures). Costs incurred to issue the 2029 Debentures were approximately $7.8 million. These costs are being amortized over a period of five years, which represents the estimated term of the 2029 Debentures, and are included in deferred financing costs, net in the consolidated balance sheet. The 2029 Debentures are general unsecured senior obligations of the Operating Partnership, rank equally in right of payment with all other senior unsecured indebtedness of the Operating Partnership and are fully and unconditionally guaranteed by Digital Realty Trust, Inc.

Interest is payable on October 15 and April 15 of each year beginning October 15, 2009 until the maturity date of April 15, 2029. The 2029 Debentures bear interest at 5.50% per annum and may be exchanged for shares of Digital Realty Trust, Inc. common stock at an exchange rate that was initially 23.2558 shares per $1,000 principal amount of 2029 Debentures. The exchange rate on the 2029 Debentures is subject to adjustment for certain events, including, but not limited to, certain dividends on Digital Realty Trust, Inc. common stock in excess of $0.33 per share per quarter (the “reference dividend”). Effective December 11, 2013, the exchange rate has been adjusted to 25.5490 shares per $1,000 principal amount of 2029 Debentures as a result of the aggregate dividends in excess of the reference dividend that Digital Realty Trust, Inc. declared and paid on its common stock beginning with the quarter ended September 30, 2013 and through the quarter ended December 31, 2013. Due to the fact that the exchange feature for the 2029 Debentures must be settled in the common stock of Digital Realty Trust, Inc., accounting guidance on convertible debt instruments that requires the principal amount to be settled in cash upon conversion does not apply.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

The table below summarizes our debt maturities and principal payments as of December 31, 2013 (in thousands):

 

    Global
Revolving
Credit
Facility (1)
    Unsecured
Term
Loan (1)
    Prudential
Shelf
Facility
    Senior
Notes
    Exchangeable
Senior
Debentures (2)
    Mortgage
Loans (3)
    Total
Debt
 

2014

  $  —        $  —        $  —        $  —        $ 266,400      $ 180,464      $ 446,864   

2015

    —          —          67,000        375,000        —          77,432        519,432   

2016

    —          —          25,000        —          —          194,023        219,023   

2017

    724,668        1,020,984        50,000        —          —          110,550        1,906,202   

2018

    —          —          —          —          —          3,047        3,047   

Thereafter

    —          —          —          1,862,280        —          17,733        1,880,013   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Subtotal

  $ 724,668      $ 1,020,984      $ 142,000      $ 2,237,280      $ 266,400      $ 583,249      $ 4,974,581   

Unamortized discount

    —          —          —          (15,048     —          —          (15,048

Unamortized premium

    —          —          —          —          —          2,359        2,359   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ 724,668      $ 1,020,984      $ 142,000      $ 2,222,232      $ 266,400      $ 585,608      $ 4,961,892   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) Subject to two six-month extension options exercisable by us. The bank group is obligated to grant the extension options provided we give proper notice, we make certain representations and warranties and no default exists under the global revolving credit facility and the unsecured term loan, as applicable.
(2) Assumes maturity of the 2029 Debentures at their first redemption date in April 2014.
(3) Our mortgage loans are generally non-recourse to us, subject to carve-outs for specified actions by us or specified undisclosed environmental liabilities. As of December 31, 2013, we provided partial letter of credit support with respect to approximately $37.3 million of the outstanding mortgage indebtedness (based on exchange rates as of December 31, 2013).

8. Income per Share

The following is a summary of basic and diluted income per share (in thousands, except share and per share amounts):

 

     Year Ended December 31,  
     2013      2012      2011  

Net income available to common stockholders

   $ 271,583       $ 171,662       $ 130,868   
  

 

 

    

 

 

    

 

 

 

Weighted average shares outstanding—basic

     127,941,134         115,717,667         98,405,375   

Potentially dilutive common shares:

        

Stock options

     61,375         72,818         187,834   

Class C Units (2007 Grant)

     —           —           15,050   

Unvested incentive units

     125,132         216,092         190,771   

Excess exchange value of the 2026 Debentures

     —           —           370,719   
  

 

 

    

 

 

    

 

 

 

Weighted average shares outstanding—diluted

     128,127,641         116,006,577         99,169,749   
  

 

 

    

 

 

    

 

 

 

Income per share:

        

Basic

   $ 2.12       $ 1.48       $ 1.33   
  

 

 

    

 

 

    

 

 

 

Diluted

   $ 2.12       $ 1.48       $ 1.32   
  

 

 

    

 

 

    

 

 

 

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

During the year ended December 31, 2011, the Operating Partnership’s remaining 4.125% exchangeable senior debentures due August 15, 2026 (2026 Debentures) were redeemed and exchanged. On or after July 15, 2026, the 2026 Debentures would have been exchangeable at the then-applicable exchange rate for cash (up to the principal amount of the 2026 Debentures) and, with respect to any excess exchange value, into cash, shares of Digital Realty Trust, Inc. common stock or a combination of cash and shares of Digital Realty Trust, Inc. common stock. The 2026 Debentures also would have been exchangeable prior to July 15, 2026, but only upon the occurrence of certain specified events, including if the weighted average common stock price exceeded a specified strike price as of the end of a fiscal quarter. Using the treasury stock method, 370,719 shares of common stock contingently issuable upon settlement of the excess exchange value were included as potentially dilutive common shares in determining diluted earnings per share for the year ended December 31, 2011.

We have excluded the following potentially dilutive securities in the calculations above as they would be antidilutive or not dilutive:

 

    Year Ended December 31,  
    2013      2012      2011  

Weighted average of Operating Partnership common units not owned by Digital Realty Trust, Inc.

    2,521,400         4,143,713         4,647,629   

Potentially dilutive 2029 Debentures

    6,649,510         6,486,358         6,328,234   

Potentially dilutive Series C Cumulative Convertible Preferred Stock

    —           814,063         3,016,780   

Potentially dilutive Series D Cumulative Convertible Preferred Stock

    470,748         4,016,560         6,242,257   

Potentially dilutive Series E Cumulative Redeemable Preferred Stock

    5,176,886         4,122,752         1,311,310   

Potentially dilutive Series F Cumulative Redeemable Preferred Stock

    3,283,169         1,304,940         —     

Potentially dilutive Series G Cumulative Redeemable Preferred Stock

    3,898,376         —           —     
 

 

 

    

 

 

    

 

 

 
    22,000,089         20,888,386         21,546,210   
 

 

 

    

 

 

    

 

 

 

9. Income per Unit

The following is a summary of basic and diluted income per unit (in thousands, except unit and per unit amounts):

 

     Year Ended December 31,  
     2013      2012      2011  

Net income available to common unitholders

   $ 276,949       $ 177,819       $ 137,053   
  

 

 

    

 

 

    

 

 

 

Weighted average units outstanding—basic

     130,462,534         119,861,380         103,053,004   

Potentially dilutive common units:

        

Stock options

     61,375         72,818         187,834   

Class C Units (2007 Grant)

     —           —           15,050   

Unvested incentive units

     125,132         216,092         190,771   

Excess exchange value of the 2026 Debentures

     —           —           370,719   
  

 

 

    

 

 

    

 

 

 

Weighted average units outstanding—diluted

     130,649,041         120,150,290         103,817,378   
  

 

 

    

 

 

    

 

 

 

Income per unit:

        

Basic

   $ 2.12       $ 1.48       $ 1.33   
  

 

 

    

 

 

    

 

 

 

Diluted

   $ 2.12       $ 1.48       $ 1.32   
  

 

 

    

 

 

    

 

 

 

 

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

During the year ended December 31, 2011, the remaining 2026 Debentures were redeemed and exchanged. On or after July 15, 2026, the 2026 Debentures would have been exchangeable at the then-applicable exchange rate for cash (up to the principal amount of the 2026 Debentures) and, with respect to any excess exchange value, into cash, shares of Digital Realty Trust, Inc. common stock or a combination of cash and shares of Digital Realty Trust, Inc. common stock. Pursuant to the terms of the Operating Partnership’s agreement of limited partnership, the Operating Partnership would have delivered to Digital Realty Trust, Inc. one common unit for each share of common stock issued upon exchange of the 2026 Debentures. The 2026 Debentures also would have been exchangeable prior to July 15, 2026, but only upon the occurrence of certain specified events, including if the weighted average common stock price exceeded a specified strike price as of the end of a fiscal quarter. Using the treasury method, 370,719 common units contingently issuable upon settlement of the excess exchange value were included as potentially dilutive common units in determining diluted earnings per unit for the year ended December 31, 2011.

We have excluded the following potentially dilutive securities in the calculations above as they would be antidilutive or not dilutive:

 

    Year Ended December 31,  
    2013     2012     2011  

Potentially dilutive 2029 Debentures

    6,649,510        6,486,358        6,328,234   

Potentially dilutive Series C Cumulative Convertible Preferred Units

    —          814,063        3,016,780   

Potentially dilutive Series D Cumulative Convertible Preferred Units

    470,748        4,016,560        6,242,257   

Potentially dilutive Series E Cumulative Redeemable Preferred Units

    5,176,886        4,122,752        1,311,310   

Potentially dilutive Series F Cumulative Redeemable Preferred Units

    3,283,169        1,304,940        —     

Potentially dilutive Series G Cumulative Redeemable Preferred Units

    3,898,376        —          —     
 

 

 

   

 

 

   

 

 

 
    19,478,689        16,744,673        16,898,581   
 

 

 

   

 

 

   

 

 

 

10. Income Taxes

Digital Realty Trust, Inc. (the Parent Company) has elected to be taxed as a REIT and believes that it has complied with the REIT requirements of the Code. As a REIT, the Parent Company is generally not subject to corporate level federal income taxes on taxable income to the extent it is currently distributed to its stockholders. Since inception, the Parent Company has distributed at least 100% of its taxable income annually and intends to do so for the tax year ending December 31, 2013. As such, no provision for federal income taxes has been included in the accompanying consolidated financial statements for the years ended December 31, 2013, 2012 and 2011.

We have elected taxable REIT subsidiary (TRS) status for some of our consolidated subsidiaries. In general, a TRS may provide services that would otherwise be considered impermissible for REITs and hold assets that REITs cannot hold directly. Income taxes for TRS entities were accrued, as necessary, for the years ended December 31, 2013, 2012 and 2011.

For our TRS entities and foreign subsidiaries that are subject to U.S. federal, state and foreign income taxes, deferred tax assets and liabilities are established for temporary differences between the financial reporting basis and the tax basis of assets and liabilities at the enacted tax rates expected to be in effect when the temporary differences reverse. A valuation allowance for deferred tax assets is provided if we believe it is more likely than not that the deferred tax asset may not be realized, based on available evidence at the time the determination is

 

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December 31, 2013 and 2012

 

made. An increase or decrease in the valuation allowance that results from the change in circumstances that causes a change in our judgment about the realizability of the related deferred tax asset is included in income. Deferred tax assets (net of valuation allowance) and liabilities for our TRS entities and foreign subsidiaries were accrued, as necessary, for the years ended December 31, 2013, 2012 and 2011. As of December 31, 2013, we had a net deferred tax liability of approximately $146.6 million primarily related to our foreign properties, comprised of a $110.4 million deferred tax asset, net of a $257.0 million deferred tax liability. The majority of our net deferred tax liability relates to differences between tax and book basis of the assets acquired in the Sentrum Portfolio acquisition during 2012. In July 2013, we made certain immaterial measurement period adjustments to the provisional amounts initially recorded for the net deferred tax liability recorded as part of the Sentrum acquisition, which closed in July 2012.

11. Equity and Accumulated Other Comprehensive Loss, Net

(a) Equity Distribution Agreements

On June 29, 2011, Digital Realty Trust, Inc. entered into new equity distribution agreements, which we refer to as the 2011 Equity Distribution Agreements, with each of Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and Morgan Stanley & Co. LLC, or the Agents, under which it could issue and sell shares of its common stock having an aggregate offering price of up to $400.0 million from time to time through, at its discretion, any of the Agents as its sales agents. The sales of common stock made under the 2011 Equity Distribution Agreements will be made in “at the market” offerings as defined in Rule 415 of the Securities Act. For the year ended December 31, 2012, Digital Realty Trust, Inc. generated net proceeds of approximately $62.7 million from the issuance of approximately 1.0 million common shares under the 2011 Equity Distribution Agreements at an average price of $66.19 per share after payment of approximately $0.6 million of commissions to the sales agents and before offering expenses. For the year ended December 31, 2011, Digital Realty Trust, Inc. generated net proceeds of approximately $280.0 million from the issuance of approximately 4.8 million common shares under the 2011 Equity Distribution Agreements at an average price of $59.17 per share after payment of approximately $2.8 million of commissions to the sales agents and before offering expenses. No sales were made under the program during the year ended December 31, 2013. As of December 31, 2013, shares of common stock having an aggregate offering price of $53.8 million remained available for offer and sale under the program.

(b) Convertible Preferred Stock

5.500% Series D Cumulative Convertible Preferred Stock

On February 6, 2008, Digital Realty Trust, Inc. issued 13,800,000 shares of its 5.500% series D cumulative convertible preferred stock, or the series D preferred stock. Dividends were cumulative on the series D preferred stock from the date of original issuance in the amount of $1.375 per share each year, which is equivalent to 5.500% of the $25.00 liquidation preference per share. Dividends on the series D preferred stock were payable quarterly in arrears. The series D preferred stock did not have a stated maturity date and was not subject to any sinking fund or mandatory redemption provisions. Upon liquidation, dissolution or winding up, the series D preferred stock ranked senior to Digital Realty Trust, Inc. common stock with respect to the payment of distributions and other amounts and ranked on parity with Digital Realty Trust, Inc. series E preferred stock and series F preferred stock. Digital Realty Trust, Inc. was not allowed to redeem the series D preferred stock, except in limited circumstances to preserve its status as a REIT. Holders of the series D preferred stock generally had no voting rights except for limited voting rights if Digital Realty Trust, Inc. failed to pay dividends for six or more quarterly periods (whether or not consecutive) and in certain other circumstances.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

Effective February 26, 2013, Digital Realty Trust, Inc. converted all outstanding shares of its series D preferred stock into shares of its common stock in accordance with the terms of the series D preferred stock. Each share of series D preferred stock was converted into 0.6360 share of Digital Realty Trust, Inc. common stock. Digital Realty Trust, Inc. converted 4,802,180 shares of its series D preferred stock into 3,054,186 shares of Digital Realty Trust, Inc.’s common stock. In connection with this conversion, the Operating Partnership issued 3,054,186 common units to Digital Realty Trust, Inc. upon conversion of 4,802,180 series D cumulative convertible preferred units. During the years ended December 31, 2013 and 2012, the Operating Partnership issued 3,139,615 and 1,297,675 common units, respectively, to Digital Realty Trust, Inc. upon conversion of 4,936,505 and 2,040,550 series D cumulative convertible preferred units in connection with the conversion of 4,936,505 and 2,040,550 shares of the series D preferred stock, respectively.

(c) Redeemable Preferred Stock

7.000% Series E Cumulative Redeemable Preferred Stock

On September 15, 2011, Digital Realty Trust, Inc. issued 11,500,000 shares of its 7.000% series E cumulative redeemable preferred stock, or the series E preferred stock, for net proceeds of $277.2 million, after deducting underwriting discounts and commissions and offering expenses. Dividends are cumulative on the series E preferred stock from the date of original issuance in the amount of $1.750 per share each year, which is equivalent to 7.000% of the $25.00 liquidation preference per share. Dividends on the series E preferred stock are payable quarterly in arrears. The first dividend paid on the series E preferred stock on December 30, 2011 was a pro rata dividend from and including the original issue date to and including December 31, 2011 in the amount of $0.515278 per share. The series E preferred stock does not have a stated maturity date and is not subject to any sinking fund or mandatory redemption provisions. Upon liquidation, dissolution or winding up, the series E preferred stock will rank senior to Digital Realty Trust, Inc. common stock with respect to the payment of distributions and other amounts and rank on parity with Digital Realty Trust, Inc. series F cumulative redeemable and series G cumulative redeemable preferred stock. Digital Realty Trust, Inc. is not allowed to redeem the series E preferred stock before September 15, 2016, except in limited circumstances to preserve its status as a REIT and upon specified change of control transactions. On or after September 15, 2016, Digital Realty Trust, Inc. may, at its option, redeem the series E preferred stock, in whole or in part, at any time or from time to time, for cash at a redemption price of $25.00 per share, plus all accrued and unpaid dividends on such series E preferred stock up to but excluding the redemption date. Holders of the series E preferred stock generally have no voting rights except for limited voting rights if Digital Realty Trust, Inc. fails to pay dividends for six or more quarterly periods (whether or not consecutive) and in certain other circumstances. Upon the occurrence of specified changes of control, as a result of which neither Digital Realty Trust, Inc.’s common stock nor the common securities of the acquiring or surviving entity (or American Depository Receipts, or ADRs, representing such securities) is listed on the New York Stock Exchange, the NYSE Amex Equities or the NASDAQ Stock Market or listed or quoted on a successor exchange or quotation system, each holder of series E preferred stock will have the right (unless, prior to the change of control conversion date specified in the Articles Supplementary governing the series E preferred stock, Digital Realty Trust, Inc. has provided or provides notice of its election to redeem the series E preferred stock) to convert some or all of the series E preferred stock held by it into a number of shares of Digital Realty Trust, Inc.’s common stock per share of series E preferred stock to be converted equal to the lesser of:

 

   

the quotient obtained by dividing (i) the sum of the $25.00 liquidation preference plus the amount of any accrued and unpaid dividends to, but not including, the change of control conversion date (unless the change of control conversion date is after a record date for a series E preferred stock dividend payment and prior to the corresponding series E preferred stock dividend payment date, in which case no

 

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December 31, 2013 and 2012

 

 

additional amount for such accrued and unpaid dividend will be included in this sum) by (ii) the common stock price specified in the Articles Supplementary governing the series E preferred stock; and

 

   

0.8378, or the share cap, subject to certain adjustments;

subject, in each case, to provisions for the receipt of alternative consideration as described in the Articles Supplementary governing the series E preferred stock. Except in connection with specified change of control transactions, the series E preferred stock is not convertible into or exchangeable for any other property or securities of Digital Realty Trust, Inc.

6.625% Series F Cumulative Redeemable Preferred Stock

On April 5, 2012 and April 18, 2012, Digital Realty Trust, Inc. issued an aggregate of 7,300,000 shares of its 6.625% series F cumulative redeemable preferred stock, or the series F preferred stock, for net proceeds of $176.2 million, after deducting underwriting discounts and commissions and offering expenses. Dividends are cumulative on the series F preferred stock from the date of original issuance in the amount of $1.65625 per share each year, which is equivalent to 6.625% of the $25.00 liquidation preference per share. Dividends on the series F preferred stock are payable quarterly in arrears. The first dividend paid on the series F preferred stock on June 29, 2012 was a pro rata dividend from and including the original issue date to and including June 30, 2012 in the amount of $0.395660 per share. The series F preferred stock does not have a stated maturity date and is not subject to any sinking fund or mandatory redemption provisions. Upon liquidation, dissolution or winding up, the series F preferred stock will rank senior to Digital Realty Trust, Inc. common stock with respect to the payment of distributions and other amounts and rank on parity with Digital Realty Trust, Inc. series E cumulative redeemable and series G cumulative redeemable preferred stock. Digital Realty Trust, Inc. is not allowed to redeem the series F preferred stock before April 5, 2017, except in limited circumstances to preserve its status as a REIT. On or after April 5, 2017, Digital Realty Trust, Inc. may, at its option, redeem the series F preferred stock, in whole or in part, at any time or from time to time, for cash at a redemption price of $25.00 per share, plus all accrued and unpaid dividends on such series F preferred stock up to but excluding the redemption date. Holders of the series F preferred stock generally have no voting rights except for limited voting rights if Digital Realty Trust, Inc. fails to pay dividends for six or more quarterly periods (whether or not consecutive) and in certain other circumstances. Upon the occurrence of specified changes of control, as a result of which neither Digital Realty Trust, Inc.’s common stock nor the common securities of the acquiring or surviving entity (or ADRs representing such securities) is listed on the New York Stock Exchange, the NYSE Amex Equities or the NASDAQ Stock Market or listed or quoted on a successor exchange or quotation system, each holder of series F preferred stock will have the right (unless, prior to the change of control conversion date specified in the Articles Supplementary governing the series F preferred stock, Digital Realty Trust, Inc. has provided or provides notice of its election to redeem the series F preferred stock) to convert some or all of the series F preferred stock held by it into a number of shares of Digital Realty Trust, Inc.’s common stock per share of series F preferred stock to be converted equal to the lesser of:

 

   

the quotient obtained by dividing (i) the sum of the $25.00 liquidation preference plus the amount of any accrued and unpaid dividends to, but not including, the change of control conversion date (unless the change of control conversion date is after a record date for a series F preferred stock dividend payment and prior to the corresponding series F preferred stock dividend payment date, in which case no additional amount for such accrued and unpaid dividend will be included in this sum) by (ii) the common stock price specified in the Articles Supplementary governing the series F preferred stock; and

 

   

0.6843, or the share cap, subject to certain adjustments;

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

subject, in each case, to provisions for the receipt of alternative consideration as described in the Articles Supplementary governing the series F preferred stock. Except in connection with specified change of control transactions, the series F preferred stock is not convertible into or exchangeable for any other property or securities of Digital Realty Trust, Inc.

5.875% Series G Cumulative Redeemable Preferred Stock

On April 9, 2013, Digital Realty Trust, Inc. issued an aggregate of 10,000,000 shares of its 5.875% series G cumulative redeemable preferred stock, or the series G preferred stock, for gross proceeds of $250.0 million. Dividends are cumulative on the series G preferred stock from the date of original issuance in the amount of $1.46875 per share each year, which is equivalent to 5.875% of the $25.00 liquidation preference per share. Dividends on the series G preferred stock are payable quarterly in arrears. The first dividend paid on the series G preferred stock on June 28, 2013 was a pro rata dividend from and including the original issue date to and including June 30, 2013 in the amount of $0.334550 per share. The series G preferred stock does not have a stated maturity date and is not subject to any sinking fund or mandatory redemption provisions. Upon liquidation, dissolution or winding up, the series G preferred stock will rank senior to Digital Realty Trust, Inc. common stock and rank on parity with Digital Realty Trust, Inc.’s series E cumulative redeemable and series F cumulative redeemable preferred stock with respect to the payment of distributions and other amounts. Digital Realty Trust, Inc. is not allowed to redeem the series G preferred stock before April 9, 2018, except in limited circumstances to preserve its status as a REIT. On or after April 9, 2018, Digital Realty Trust, Inc. may, at its option, redeem the series G preferred stock, in whole or in part, at any time or from time to time, for cash at a redemption price of $25.00 per share, plus all accrued and unpaid dividends on such series G preferred stock up to but excluding the redemption date. Holders of the series G preferred stock generally have no voting rights except for limited voting rights if Digital Realty Trust, Inc. fails to pay dividends for six or more quarterly periods (whether or not consecutive) and in certain other circumstances. Upon the occurrence of specified changes of control, as a result of which neither Digital Realty Trust, Inc.’s common stock nor the common securities of the acquiring or surviving entity (or American Depositary Receipts representing such securities) is listed on the New York Stock Exchange, the NYSE MKT, LLC, or the NASDAQ Stock Market or listed or quoted on a successor exchange or quotation system, each holder of series G preferred stock will have the right (unless, prior to the change of control conversion date specified in the Articles Supplementary governing the series G preferred stock, Digital Realty Trust, Inc. has provided or provides notice of its election to redeem the series G preferred stock) to convert some or all of the series G preferred stock held by it into a number of shares of Digital Realty Trust, Inc.’s common stock per share of series G preferred stock to be converted equal to the lesser of:

 

   

the quotient obtained by dividing (i) the sum of the $25.00 liquidation preference plus the amount of any accrued and unpaid dividends to, but not including, the change of control conversion date (unless the change of control conversion date is after a record date for a series G preferred stock dividend payment and prior to the corresponding series G preferred stock dividend payment date, in which case no additional amount for such accrued and unpaid dividend will be included in this sum) by (ii) the common stock price specified in the Articles Supplementary governing the series G preferred stock; and

 

   

0.7532, or the share cap, subject to certain adjustments;

subject, in each case, to provisions for the receipt of alternative consideration as described in the Articles Supplementary governing the series G preferred stock. Except in connection with specified change of control transactions, the series G preferred stock is not convertible into or exchangeable for any other property or securities of Digital Realty Trust, Inc.

 

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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

(d) Noncontrolling Interests in Operating Partnership

Noncontrolling interests in the Operating Partnership relate to the interests that are not owned by Digital Realty Trust, Inc. The following table shows the ownership interest in the Operating Partnership as of December 31, 2013 and 2012:

 

     December 31, 2013     December 31, 2012  
     Number of
units
     Percentage
of total
    Number of
units
     Percentage
of total
 

Digital Realty Trust, Inc.

     128,455,350         97.7     125,140,783         97.8

Noncontrolling interests consist of:

          

Common units held by third parties

     1,491,814         1.2        1,515,814         1.2   

Incentive units held by employees and directors (see note 13)

     1,475,207         1.1        1,335,586         1.0   
  

 

 

    

 

 

   

 

 

    

 

 

 
     131,422,371         100.0     127,992,183         100.0
  

 

 

    

 

 

   

 

 

    

 

 

 

Limited partners have the right to require the Operating Partnership to redeem part or all of their common units for cash based on the fair market value of an equivalent number of shares of Digital Realty Trust, Inc. common stock at the time of redemption. Alternatively, Digital Realty Trust, Inc. may elect to acquire those common units in exchange for shares of Digital Realty Trust, Inc. common stock on a one-for-one basis, subject to adjustment in the event of stock splits, stock dividends, issuance of stock rights, specified extraordinary distributions and similar events. Pursuant to authoritative accounting guidance, Digital Realty Trust, Inc. evaluated whether it controls the actions or events necessary to issue the maximum number of shares that could be required to be delivered under the share settlement of the noncontrolling Operating Partnership common and incentive units. Based on the results of this analysis, we concluded that the common and incentive Operating Partnership units met the criteria to be classified within equity.

The redemption value of the noncontrolling Operating Partnership common units and the vested incentive units was approximately $124.1 million and $161.5 million based on the closing market price of Digital Realty Trust, Inc. common stock on December 31, 2013 and 2012, respectively.

 

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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

The following table shows activity for the noncontrolling interests in the Operating Partnership for the years ended December 31, 2013, 2012 and 2011:

 

     Common
Units
    Incentive
Units
    Total  

As of December 31, 2010

     3,937,827        1,525,622        5,463,449   

Redemption of common units for shares of Digital Realty Trust, Inc. common stock (1)

     (532,013     —          (532,013

Conversion of incentive units held by employees and directors for shares of Digital Realty Trust, Inc. common stock (1)

     —          (126,710     (126,710

Vesting of Class C Units (2007 Grant)

     —          (53,138     (53,138

Grant of incentive units to employees and directors

     —          184,542        184,542   
  

 

 

   

 

 

   

 

 

 

As of December 31, 2011

     3,405,814        1,530,316        4,936,130   

Redemption of common units for shares of Digital Realty Trust, Inc. common stock (1)

     (1,890,000     —          (1,890,000

Conversion of incentive units held by employees and directors for shares of Digital Realty Trust, Inc. common stock (1)

     —          (344,860     (344,860

Cancellation of incentive units held by employees and directors

     —          (15,950     (15,950

Grant of incentive units to employees and directors

     —          166,080        166,080   
  

 

 

   

 

 

   

 

 

 

As of December 31, 2012

     1,515,814        1,335,586        2,851,400   

Redemption of common units for shares of Digital Realty Trust, Inc. common stock (1)

     (24,000     —          (24,000

Conversion of incentive units held by employees and directors for shares of Digital Realty Trust, Inc. common stock (1)

     —          (33,138     (33,138

Cancellation of incentive units held by employees and directors

     —          (19,483     (19,483

Grant of incentive units to employees and directors

     —          192,242        192,242   
  

 

 

   

 

 

   

 

 

 

As of December 31, 2013

     1,491,814        1,475,207        2,967,021   
  

 

 

   

 

 

   

 

 

 

 

(1) This redemption was recorded as a reduction to noncontrolling interests in the Operating Partnership and an increase to common stock and additional paid in capital based on the book value per unit in the accompanying consolidated balance sheet of Digital Realty Trust, Inc.

Under the terms of certain third parties’ (the eXchange parties) contribution agreements signed in the third quarter of 2004, we agreed to indemnify each eXchange party against adverse tax consequences in the event the Operating Partnership directly or indirectly sold, exchanged or otherwise disposed of (whether by way of merger, sale of assets or otherwise) in a taxable transaction any interest in 200 Paul Avenue or 1100 Space Park Drive until the earlier of November 3, 2013 or the date on which these contributors or certain transferees hold less than 25% of the Operating Partnership common units issued to them in the formation transactions consummated concurrently with the IPO. Under the eXchange parties’ amended contribution agreement, the Operating Partnership agreed to make approximately $17.8 million of indebtedness available for guaranty by the eXchange parties until the earlier of November 3, 2013 and the date on which these contributors or certain transferees hold less than 25% of the Operating Partnership common units issued to them in the formation transactions consummated concurrently with the IPO, and we agreed to indemnify each eXchange party against adverse tax consequences if the Operating Partnership does not provide such indebtedness to guarantee.

 

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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

(e) Dividends

We have declared and paid the following dividends on our common and preferred stock for the years ended December 31, 2013, 2012 and 2011 (in thousands):

 

Date dividend declared

  

Dividend payable date

   Series C
Preferred
Stock (1)
    Series D
Preferred
Stock (2)
    Series E
Preferred
Stock (3)
    Series F
Preferred
Stock (4)
    Series G
Preferred
Stock (5)
    Common
Stock
 

February 10, 2011

   March 31, 2011    $ 1,832      $ 4,690      $  —        $  —        $  —        $ 62,459 (6)  

April 25, 2011

   June 30, 2011      1,441        3,272        —          —          —          67,031 (6)  

July 25, 2011

   September 30, 2011      1,402        3,034        —          —          —          69,830 (6)  

October 24, 2011

   December 30, 2011 for Series C, D and E Preferred Stock; January 13, 2012 for Common Stock      1,402        2,398        5,926 (7)       —          —          72,092 (6)  
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
      $ 6,077      $ 13,394      $ 5,926      $  —        $  —        $ 271,412   
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

February 14, 2012

   March 30, 2012    $ 1,402      $ 2,398      $ 5,031      $  —        $  —        $ 78,335 (8)  

April 23, 2012

   June 29, 2012      —   (9)       2,394        5,031        2,888 (10)       —          80,478 (8)  

July 19, 2012

   September 28, 2012      —          1,723        5,031        3,023        —          89,679 (8)  

October 30, 2012

   December 31, 2012 for Series D, E and F Preferred Stock; January 15, 2013 for Common Stock      —          1,697        5,031        3,023        —          90,582 (8)  
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
      $ 1,402      $ 8,212      $ 20,124      $ 8,934      $  —        $ 339,074   
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

February 12, 2013

   March 29, 2013    $  —        $  —   (11)     $ 5,031      $ 3,023      $  —        $ 100,165 (12)  

May 1, 2013

   June 28, 2013      —          —          5,031        3,023        3,345 (13)       100,169 (12)  

July 23, 2013

   September 30, 2013      —          —          5,031        3,023        3,672        100,180 (12)  

October 23, 2013

   December 31, 2013 for Series E, F and G Preferred Stock; January 15, 2014 for Common Stock      —          —          5,031        3,023        3,672        100,187 (12)  
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
      $  —        $  —        $ 20,124      $ 12,092      $  10,689      $ 400,701   
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) $1.094 annual rate of dividend per share.
(2) $1.375 annual rate of dividend per share.
(3) $1.750 annual rate of dividend per share.
(4) $1.656 annual rate of dividend per share.
(5) $1.469 annual rate of dividend per share.
(6) $2.720 annual rate of dividend per share.
(7) Represents a pro rata dividend from and including the original issue date to and including December 31, 2011.
(8) $2.920 annual rate of dividend per share.
(9) Effective April 17, 2012, Digital Realty Trust, Inc. converted all outstanding shares of its 4.375% series C cumulative convertible preferred stock, or the series C preferred stock, into shares of its common stock in accordance with the terms of the series C preferred stock. Each share of series C preferred stock was converted into 0.5480 share of common stock of Digital Realty Trust, Inc.
(10) Represents a pro rata dividend from and including the original issue date to and including June 30, 2012.
(11)

Effective February 26, 2013, Digital Realty Trust, Inc. converted all outstanding shares of its series D preferred stock into shares of its common stock in accordance with the terms of the series D preferred stock.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

 

Each share of series D preferred stock was converted into 0.6360 share of common stock of Digital Realty Trust, Inc.

(12) $3.120 annual rate of dividend per share.
(13) Represents a pro rata dividend from and including the original issue date to and including June 30, 2013.

Distributions out of Digital Realty Trust, Inc.’s current or accumulated earnings and profits are generally classified as dividends whereas distributions in excess of its current and accumulated earnings and profits, to the extent of a stockholder’s U.S. federal income tax basis in Digital Realty Trust, Inc.’s stock, are generally classified as a return of capital. Distributions in excess of a stockholder’s U.S. federal income tax basis in Digital Realty Trust, Inc.’s stock are generally characterized as capital gain. Cash provided by operating activities has generally been sufficient to fund all distributions, however, in the future we may also need to utilize borrowings under the global revolving credit facility to fund all or a portion distributions.

(f) Accumulated Other Comprehensive Income (Loss), Net

The accumulated balances for each item within other comprehensive income (loss), net are as follows (in thousands):

 

     Foreign
currency
translation
adjustments
    Cash  flow
hedge
adjustments
    Accumulated
other
comprehensive
income (loss), net
 

Balance as of December 31, 2011

   $ (49,298   $ (6,582   $ (55,880

Net current period change

     46,722        (7,426     39,296   

Reclassification to interest expense from interest rate swaps

     —          4,393        4,393   
  

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2012

   $ (2,576   $ (9,615   $ (12,191
  

 

 

   

 

 

   

 

 

 

Net current period change

     14,321        2,423        16,744   

Reclassification to interest expense from interest rate swaps

     —          6,138        6,138   
  

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2013

   $ 11,745      $ (1,054   $ 10,691   
  

 

 

   

 

 

   

 

 

 

12. Capital and Accumulated Other Comprehensive Income (Loss)

(a) Convertible Preferred Units

5.500% Series D Cumulative Convertible Preferred Units

On February 6, 2008, the Operating Partnership issued 13,800,000 of its 5.500% series D cumulative convertible preferred units, or the series D preferred units, to the General Partner in conjunction with the General Partner’s issuance of an equivalent number of shares of its 5.500% series D cumulative convertible preferred stock, or the series D preferred stock. Distributions were cumulative on the series D preferred units from the date of original issuance in the amount of $1.375 per unit each year, which was equivalent to 5.500% of the $25.00 liquidation preference per unit. Distributions on the series D preferred units were payable quarterly in arrears. The series D preferred units did not have a stated maturity date and were not subject to any sinking fund. The Operating Partnership was required to redeem the series D units in the event that the General Partner redeemed the series D preferred stock. The General Partner was not allowed to redeem the series D preferred stock except in limited circumstances to preserve the General Partner’s status as a REIT. Upon liquidation, dissolution or winding up, the series D preferred units ranked senior to the common units with respect to the payment of

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

distributions and other amounts and ranked on parity with the Operating Partnership’s series E preferred units and series F preferred units.

Effective February 26, 2013, the General Partner converted all outstanding shares of its series D preferred stock into shares of its common stock in accordance with the terms of the series D preferred stock. Each share of series D preferred stock was converted into 0.6360 share of the General Partner’s common stock. In connection with this conversion, the Operating Partnership issued 3,054,186 common units to the General Partner upon conversion of 4,802,180 series D cumulative convertible preferred units. During the years ended December 31, 2013 and 2012, the Operating Partnership issued 3,139,615 and 1,297,675 common units, respectively, to the General Partner upon conversion of 4,936,505 and 2,040,550 series D preferred units in connection with the conversion of 4,936,505 and 2,040,550 shares of the series D preferred stock, respectively.

(b) Redeemable Preferred Units

7.000% Series E Cumulative Redeemable Preferred Units

On September 15, 2011, the Operating Partnership issued 11,500,000 units of its 7.000% series E cumulative redeemable preferred units, or series E preferred units, to Digital Realty Trust, Inc. (the General Partner) in conjunction with the General Partner’s issuance of an equivalent number of shares of its 7.000% series E cumulative redeemable preferred stock, or the series E preferred stock. Distributions are cumulative on the series E preferred units from the date of original issuance in the amount of $1.750 per unit each year, which is equivalent to 7.000% of the $25.00 liquidation preference per unit. Distributions on the series E preferred units are payable quarterly in arrears. The first distribution paid on the series E preferred units on December 30, 2011 was a pro rata distribution from and including the original issue date to and including December 31, 2011 in the amount of $0.515278 per unit. The series E preferred units do not have a stated maturity date and are not subject to any sinking fund. The Operating Partnership is required to redeem the series E units in the event that the General Partner redeems the series E preferred stock. The General Partner is not allowed to redeem the series E preferred stock prior to September 15, 2016 except in limited circumstances to preserve the General Partner’s status as a REIT. On or after September 15, 2016, the General Partner may, at its option, redeem the series E preferred stock, in whole or in part, at any time or from time to time, for cash at a redemption price of $25.00 per share, plus all accrued and unpaid dividends on such series E preferred stock up to but excluding the redemption date. Upon liquidation, dissolution or winding up, the series E preferred units will rank senior to the common units with respect to the payment of distributions and other amounts and rank on parity with the Operating Partnership’s series F and series G preferred units. Except in connection with specified change of control transactions of the General Partner, the series E preferred units are not convertible into or exchangeable for any other property or securities of the Operating Partnership.

6.625% Series F Cumulative Redeemable Preferred Units

On April 5, 2012 and April 18, 2012, the Operating Partnership issued a total of 7,300,000 units of its 6.625% series F cumulative redeemable preferred units, or series F preferred units, to the General Partner in conjunction with the General Partner’s issuance of an equivalent number of shares of its 6.625% series F cumulative redeemable preferred stock, or the series F preferred stock. Distributions are cumulative on the series F preferred units from the date of original issuance in the amount of $1.65625 per unit each year, which is equivalent to 6.625% of the $25.00 liquidation preference per unit. Distributions on the series F preferred units are payable quarterly in arrears. The first distribution paid on the series F preferred units on June 29, 2012 was a pro rata distribution from and including the original issue date to and including June 30, 2012 in the amount of

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

$0.39566 per unit. The series F preferred units do not have a stated maturity date and are not subject to any sinking fund. The Operating Partnership is required to redeem the series F preferred units in the event that the General Partner redeems the series F preferred stock. The General Partner is not allowed to redeem the series F preferred stock prior to April 5, 2017 except in limited circumstances to preserve the General Partner’s status as a REIT. On or after April 5, 2017, the General Partner may, at its option, redeem the series F preferred stock, in whole or in part, at any time or from time to time, for cash at a redemption price of $25.00 per share, plus all accrued and unpaid dividends on such series F preferred stock up to but excluding the redemption date. Upon liquidation, dissolution or winding up, the series F preferred units will rank senior to the common units with respect to the payment of distributions and other amounts and rank on parity with the Operating Partnership’s series E and series G preferred units. Except in connection with specified change of control transactions of the General Partner, the series F preferred units are not convertible into or exchangeable for any other property or securities of the Operating Partnership.

5.875% Series G Cumulative Redeemable Preferred Units

On April 9, 2013, the Operating Partnership issued a total of 10,000,000 of its 5.875% series G cumulative redeemable preferred units, or series G preferred units, to the General Partner in conjunction with the General Partner’s issuance of an equivalent number of shares of its 5.875% series G cumulative redeemable preferred stock, or the series G preferred stock. Distributions are cumulative on the series G preferred units from the date of original issuance in the amount of $1.46875 per unit each year, which is equivalent to 5.875% of the $25.00 liquidation preference per unit. Distributions on the series G preferred units are payable quarterly in arrears. The first distribution paid on the series G preferred units on June 28, 2013 was a pro rata distribution from and including the original issue date to and including June 30, 2013 in the amount of $0.334550 per unit. The series G preferred units do not have a stated maturity date and are not subject to any sinking fund. The Operating Partnership is required to redeem the series G preferred units in the event that the General Partner redeems the series G preferred stock. The General Partner is not allowed to redeem the series G preferred stock prior to April 9, 2018 except in limited circumstances to preserve the General Partner’s status as a REIT. On or after April 9, 2018, the General Partner may, at its option, redeem the series G preferred stock, in whole or in part, at any time or from time to time, for cash at a redemption price of $25.00 per share, plus all accrued and unpaid dividends on such series G preferred stock up to but excluding the redemption date. Upon liquidation, dissolution or winding up, the series G preferred units will rank senior to the Operating Partnership’s common units with respect to the payment of distributions and other amounts and rank on parity with the Operating Partnership’s series E and series F preferred units. Except in connection with specified change of control transactions of the General Partner, the series G preferred units are not convertible into or exchangeable for any other property or securities of the Operating Partnership.

(c) Allocations of Net Income and Net Losses to Partners

Except for special allocations to holders of profits interest units described below in note 13(a) under the heading “Incentive Plan-Long-Term Incentive Units,” the Operating Partnership’s net income will generally be allocated to the General Partner to the extent of the accrued preferred return on its preferred units, and then to the General Partner and the Operating Partnership’s limited partners in accordance with the respective percentage interests in the common units issued by the Operating Partnership. Net loss will generally be allocated to the General Partner and the Operating Partnership’s limited partners in accordance with the respective common percentage interests in the Operating Partnership until the limited partner’s capital is reduced to zero and any remaining net loss would be allocated to the General Partner. However, in some cases, losses may be disproportionately allocated to partners who have guaranteed our debt. The allocations described above are

 

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December 31, 2013 and 2012

 

subject to special allocations relating to depreciation deductions and to compliance with the provisions of Sections 704(b) and 704(c) of the Code, and the associated Treasury Regulations.

(d) Partnership Units

Limited partners have the right to require the Operating Partnership to redeem part or all of their common units for cash based on the fair market value of an equivalent number of shares of the General Partner’s common stock at the time of redemption. Alternatively, the General Partner may elect to acquire those common units in exchange for shares of the General Partner’s common stock on a one-for-one basis, subject to adjustment in the event of stock splits, stock dividends, issuance of stock rights, specified extraordinary distributions and similar events. Pursuant to authoritative accounting guidance, the Operating Partnership evaluated whether it controls the actions or events necessary to issue the maximum number of shares that could be required to be delivered under the share settlement of the limited partners’ common units and the vested incentive units. Based on the results of this analysis, the Operating Partnership concluded that the common and vested incentive Operating Partnership units met the criteria to be classified within capital.

The redemption value of the limited partners’ common units and the vested incentive units was approximately $124.1 million and $161.5 million based on the closing market price of Digital Realty Trust, Inc.’s common stock on December 31, 2013 and 2012, respectively.

 

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December 31, 2013 and 2012

 

(e) Distributions

All distributions on our units are at the discretion of Digital Realty Trust, Inc.’s board of directors. We have declared and paid the following distributions on our common and preferred units for the years ended December 31, 2013, 2012 and 2011 (in thousands):

 

Date distribution declared

  

Distribution payable date

  Series C
Preferred
Units (1)
    Series D
Preferred
Units (2)
    Series E
Preferred
Units (3)
    Series F
Preferred
Units (4)
    Series G
Preferred
Units (5)
    Common
Units
 

February 10, 2011

   March 31, 2011   $ 1,832      $ 4,690      $ —        $ —        $ —        $ 66,252 (6)  

April 25, 2011

   June 30, 2011     1,441        3,272        —          —          —          70,576 (6)  

July 25, 2011

   September 30, 2011     1,402        3,034        —          —          —          73,247 (6)  

October 24, 2011

   December 30, 2011 for Series C, D and E Preferred Units; January 13, 2012 for Common Units     1,402        2,398        5,926 (7)       —          —          75,456 (6)  
    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
     $ 6,077      $ 13,394      $ 5,926      $ —        $ —        $ 285,531   
    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

February 14, 2012

   March 30, 2012   $ 1,402      $ 2,398      $ 5,031      $ —        $ —        $ 81,917 (8)  

April 23, 2012

   June 29, 2012     —   (9)       2,394        5,031        2,888 (10)       —          83,982 (8)  

July 19, 2012

   September 28, 2012     —          1,723        5,031        3,023        —          93,076 (8)  

October 30, 2012

   December 31, 2012 for Series D, E and F Preferred Units; January 15, 2013 for Common Units     —          1,697        5,031        3,023        —          93,434 (8)  
    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
     $ 1,402      $ 8,212      $ 20,124      $ 8,934      $ —        $ 352,409   
    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

February 12, 2013

   March 29, 2013   $ —        $ —   (11)     $ 5,031      $ 3,023      $ —        $ 102,506 (12)  

May 1, 2013

   June 28, 2013     —          —          5,031        3,023        3,345 (13)       102,507 (12)  

July 23, 2013

   September 30, 2013     —          —          5,031        3,023        3,672        102,506 (12)  

October 23, 2013

   December 31, 2013 for Series E, F and G Preferred Units; January 15, 2014 for Common Units     —          —          5,031        3,023        3,672        102,509 (12)  
    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
     $ —        $ —        $ 20,124      $ 12,092      $  10,689      $ 410,028   
    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

(1) $1.094 annual rate of distribution per unit.
(2) $1.375 annual rate of distribution per unit.
(3) $1.750 annual rate of distribution per unit.
(4) $1.656 annual rate of distribution per unit.
(5) $1.469 annual rate of distribution per unit.
(6) $2.720 annual rate of distribution per unit.
(7) Represents a pro rata distribution from and including the original issue date to and including December 31, 2011.
(8) $2.920 annual rate of distribution per unit.
(9) Effective April 17, 2012, in connection with the conversion of the series C preferred stock by Digital Realty Trust, Inc., all of the outstanding 4.375% series C cumulative convertible preferred units, or the series C preferred units, were converted into common units in accordance with the terms of the series C preferred units. Each series C preferred unit was converted into 0.5480 common unit of the Operating Partnership.
(10) Represents a pro rata distribution from and including the original issue date to and including June 30, 2012.

 

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December 31, 2013 and 2012

 

(11) Effective February 26, 2013, in connection with the conversion of the series D preferred stock by Digital Realty Trust, Inc., all of the outstanding series D preferred units were converted into common units in accordance with the terms of the series D preferred units. Each series D preferred unit was converted into 0.6360 common unit of the Operating Partnership.
(12) $3.120 annual rate of distribution per unit.
(13) Represents a pro rata distribution from and including the original issue date to and including June 30, 2013.

(f) Accumulated Other Comprehensive Income (Loss)

The accumulated balances for each item within other comprehensive income (loss) are as follows (in thousands):

 

     Foreign
currency
translation
adjustments
    Cash  flow
hedge
adjustments
    Accumulated
other
comprehensive
income (loss)
 

Balance as of December 31, 2011

   $ (52,704   $ (7,363   $ (60,067

Net current period change

     48,303        (7,693     40,610   

Reclassification to interest expense from interest rate swaps

     —          4,547        4,547   
  

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2012

   $ (4,401   $ (10,509   $ (14,910
  

 

 

   

 

 

   

 

 

 

Net current period change

     14,636        2,473        17,109   

Reclassification to interest expense from interest rate swaps

     —          6,258        6,258   
  

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2013

   $ 10,235      $ (1,778   $ 8,457   
  

 

 

   

 

 

   

 

 

 

13. Incentive Plan

Our Amended and Restated 2004 Incentive Award Plan (as defined below) provides for the grant of incentive awards to employees, directors and consultants. Awards issuable under the Amended and Restated 2004 Incentive Award Plan include stock options, restricted stock, dividend equivalents, stock appreciation rights, long-term incentive units, cash performance bonuses and other incentive awards. Only employees are eligible to receive incentive stock options under the Amended and Restated 2004 Incentive Award Plan. Initially, we had reserved a total of 4,474,102 shares of common stock for issuance pursuant to the 2004 Incentive Award Plan, subject to certain adjustments set forth in the 2004 Incentive Award Plan. On May 2, 2007, Digital Realty Trust, Inc.’s stockholders approved the First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan (as amended, the Amended and Restated 2004 Incentive Award Plan). The Amended and Restated 2004 Incentive Award Plan increases the aggregate number of shares of stock which may be issued or transferred under the plan by 5,000,000 shares to a total of 9,474,102 shares, and provides that the maximum number of shares of stock with respect to awards granted to any one participant during a calendar year will be 1,500,000 and the maximum amount that may be paid in cash during any calendar year with respect to any performance-based award not denominated in stock or otherwise for which the foregoing limitation would not be an effective limitation for purposes of Section 162(m) of the Code will be $10.0 million.

As of December 31, 2013, 3,209,240 shares of common stock or awards convertible into or exchangeable for common stock remained available for future issuance under the Amended and Restated 2004 Incentive Award Plan. Each long-term incentive unit and Class C Unit issued under the Amended and Restated 2004 Incentive Award Plan will count as one share of common stock for purposes of calculating the limit on shares that may be

 

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December 31, 2013 and 2012

 

issued under the Amended and Restated 2004 Incentive Award Plan and the individual award limit discussed above.

(a) Long-Term Incentive Units

Long-term incentive units, which are also referred to as profits interest units, may be issued to eligible participants for the performance of services to or for the benefit of the Operating Partnership. Long-term incentive units, whether vested or not, will receive the same quarterly per unit distributions as Operating Partnership common units, which equal per share distributions on Digital Realty Trust, Inc. common stock. Initially, long-term incentive units do not have full parity with common units with respect to liquidating distributions. If such parity is reached, vested long-term incentive units may be converted into an equal number of common units of the Operating Partnership at any time, and thereafter enjoy all the rights of common units of the Operating Partnership, including redemption rights.

In order to achieve full parity with common units, long-term incentive units must be fully vested and the holder’s capital account balance in respect of such long-term incentive units must be equal to the capital account balance of a holder of an equivalent number of common units. The capital account balance attributable to each common unit is generally expected to be the same, in part because of the amount credited to a partner’s capital account upon the partner’s contribution of property to the Operating Partnership, and in part because the partnership agreement provides, in most cases, that allocations of income, gain, loss and deduction (which will adjust the partner’s capital accounts) are to be made to the common units on a proportionate basis. As a result, with respect to a number of long-term incentive units, it is possible to determine the capital account balance of an equivalent number of common units by multiplying the number of long-term incentive units by the capital account balance with respect to a common unit.

A partner’s initial capital account balance is equal to the amount the partner paid (or contributed to the Operating Partnership) for the partner’s units and is subject to subsequent adjustments, including with respect to the partner’s share of income, gain or loss of the Operating Partnership. Because a holder of long-term incentive units generally will not pay for the long-term incentive units, the initial capital account balance attributable to such long-term incentive units will be zero. However, the Operating Partnership is required to allocate income, gain, loss and deduction to the partner’s capital accounts in accordance with the terms of the partnership agreement, subject to applicable Treasury Regulations. The partnership agreement provides that holders of long-term incentive units will receive special allocations of gain in the event of a sale or “hypothetical sale” of assets of the Operating Partnership prior to the allocation of gain to Digital Realty Trust, Inc. or other limited partners with respect to their common units. The amount of such allocation will, to the extent of any such gain, be equal to the difference between the capital account balance of a holder of long-term incentive units attributable to such units and the capital account balance attributable to an equivalent number of common units. If and when such gain allocation is fully made, a holder of long-term incentive units will have achieved full parity with holders of common units. To the extent that, upon an actual sale or a “hypothetical sale” of the Operating Partnership’s assets as described above, there is not sufficient gain to allocate to a holder’s capital account with respect to long-term incentive units, or if such sale or “hypothetical sale” does not occur, such units will not achieve parity with common units.

The term “hypothetical sale” refers to circumstances that are not actual sales of the Operating Partnership’s assets but that require certain adjustments to the value of the Operating Partnership’s assets and the partners’ capital account balances. Specifically, the partnership agreement provides that, from time to time, in accordance with applicable Treasury Regulations, the Operating Partnership will adjust the value of its assets to equal their respective fair market values, and adjust the partners’ capital accounts, in accordance with the terms of the

 

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December 31, 2013 and 2012

 

partnership agreement, as if the Operating Partnership sold its assets for an amount equal to their value. Times for making such adjustments generally include the liquidation of the Operating Partnership, the acquisition of an additional interest in the Operating Partnership by a new or existing partner in exchange for more than a de minimis capital contribution, the distribution by the Operating Partnership to a partner of more than a de minimis amount of partnership property as consideration for an interest in the Operating Partnership, in connection with the grant of an interest in the Operating Partnership (other than a de minimis interest) as consideration for the performance of services to or for the benefit of the Operating Partnership (including the grant of a long-term incentive unit), and at such other times as may be desirable or required to comply with the Treasury Regulations.

During the years ended December 31, 2013, 2012 and 2011, certain employees and directors were granted an aggregate of 89,769, 79,237 and 85,910 long-term incentive units, respectively. During the years ended December 31, 2013, 2012 and 2011, certain employees were also granted an aggregate of 95,316, 86,843 and 98,632 long-term incentive units, respectively, which, in addition to a service condition, are subject to a performance condition that impacts the number of units which ultimately vests. The performance condition is based upon our achievement of the respective fiscal years’ Core Funds From Operations, or CFFO, per share targets. Upon evaluating the results of the performance condition, the final number of units is determined and such units vest based on satisfaction of the service conditions. The service conditions of the awards provide for 20% vesting on each of the first and second anniversaries of the grant date and 30% vesting on each of the third and fourth anniversaries of the grant date, provided the grantee continues employment on each anniversary date. Based on our 2013, 2012 and 2011 CFFO per diluted share and unit, 75,105 of the 2013 long-term incentive units (net of forfeitures), 78,118 of the 2012 long-term incentive units (net of forfeitures) and all of the 2011 long-term incentive units, respectively, satisfied the performance condition. The grant date fair values, which equal the market price of Digital Realty Trust, Inc. common stock, are being expensed on a straight-line basis for service awards over four years, the current vesting period of the long-term incentive units. For performance based awards, we expense the fair value using an accelerated method with each vesting tranche valued as a separate award.

The expense recorded for the years ended December 31, 2013, 2012 and 2011 related to long-term incentive units was approximately $8.9 million, $9.0 million and $8.7 million, respectively. We capitalized amounts relating to compensation expense of employees direct and incremental to construction and successful leasing activities of approximately $1.6 million, $1.1 million and $0.8 million for the years ended December 31, 2013, 2012 and 2011, respectively. Unearned compensation representing the unvested portion of the long-term incentive units totaled $12.9 million and $13.3 million as of December 31, 2013 and 2012, respectively. We expect to recognize this unearned compensation over the next 2.5 years on a weighted average basis.

(b) Class C Profits Interest Units

On May 2, 2007, we granted awards of Class C Profits Interest Units of the Operating Partnership or similar stock-based performance awards, which we refer to collectively as the Class C Units, under the Amended and Restated 2004 Incentive Award Plan (2007 Grant) to each of our named executive officers and certain other officers and employees.

The Class C Units subject to this award were subject to vesting based on the achievement of a total stockholder return (which we refer to as the market condition) as measured on November 1, 2008 (which we refer to as the first measurement date) and May 1, 2010 (which we refer to as the second measurement date).

We previously determined that the market condition with respect to the first measurement date was not achieved. On May 1, 2010, we determined that 593,316 of the Class C Units and 20,169 shares of restricted stock

 

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December 31, 2013 and 2012

 

subject to the 2007 Grant satisfied the market condition on the second measurement date (May 1, 2010), with the value of these units equal to the maximum amount of the award pool payable pursuant to the 2007 Grant on the second measurement date. Of the Class C Units that satisfied the market condition on May 1, 2010, 60% vested on May 1, 2010 and the remaining 40% vested ratably each month through April 30, 2012.

The fair value of the 2007 Grant was measured on the grant date using a Monte Carlo simulation to estimate the probability of the multiple market conditions being satisfied. The Monte Carlo simulation uses a statistical formula underlying the Black-Scholes and binomial formulas, and such simulation was run approximately 100,000 times. For each simulation, the value of the payoff was calculated at the settlement date and was then discounted to the grant date at a risk-free interest rate. The expected value of the Class C Units on the grant date was determined by multiplying the average of the values over all simulations by the number of outstanding shares of Digital Realty Trust, Inc. common stock and Operating Partnership units. The valuation was performed in a risk-neutral framework, so no assumption was made with respect to an equity risk premium. Other significant assumptions used in the valuation included an expected term of 36 months, expected stock price volatility of 23%, a risk-free interest rate of 4.6%, and a dividend growth rate of 5.0%. The fixed award limit under the plan was $17 million for the first market condition and $40 million for the second market condition, and there were 69.2 million shares of Digital Realty Trust, Inc. common stock and Operating Partnership units outstanding as of the 2007 Grant date. The grant date fair value of these awards of approximately $11.8 million was recognized as compensation expense on a straight-line basis over the expected service period of five years, which ended during the three months ended June 30, 2012.

We recognized compensation expense related to the Class C Units subject to the 2007 Grant of $0.5 million and $2.0 million for the years ended December 31, 2012 and 2011, respectively. We capitalized amounts relating to compensation expense of employees direct and incremental to construction and successful leasing activities of approximately $0.1 million and $0.3 million for the years ended December 31, 2012 and 2011, respectively.

(c) Stock Options

The fair value of each option granted under the Amended and Restated 2004 Incentive Award Plan is estimated on the date of the grant using the Black-Scholes option-pricing model. For the years ended December 31, 2013, 2012 and 2011, no stock options were granted. The fair values are being expensed on a straight-line basis over the vesting period of the options, which ranges from four to five years. All unearned compensation has been recognized as of December 31, 2012. The expense recorded for the years ended December 31, 2012 and 2011 was approximately $0.2 million and $0.8 million, respectively. We capitalized amounts relating to compensation expense of employees direct and incremental to construction and successful leasing activities of approximately $0.1 million and $0.2 million for the years ended December 31, 2012 and 2011, respectively.

 

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December 31, 2013 and 2012

 

The following table summarizes the Amended and Restated 2004 Incentive Award Plan’s stock option activity for the year ended December 31, 2013:

 

     Year Ended December 31, 2013  
     Shares     Weighted average
exercise price
 

Options outstanding, beginning of period

     129,259      $ 30.61   

Exercised

     (5,569     41.24   

Cancelled / Forfeited

     —          —     
  

 

 

   

Options outstanding, end of period

     123,690      $ 30.13   
  

 

 

   

Exercisable, end of period

     123,690      $ 30.13   
  

 

 

   

The following table summarizes information about stock options outstanding and exercisable as of December 31, 2013:

 

Options outstanding and exercisable

 

Exercise price

   Number
outstanding
     Weighted
average
remaining
contractual
life (years)
     Weighted
average
exercise
price
     Aggregate
intrinsic
value
 

$12.00-13.02

     34,870         0.82       $ 12.00       $ 1,294,374   

$20.37-28.09

     17,000         1.89         21.28         473,310   

$33.18-41.73

     71,820         3.29         41.02         581,417   
  

 

 

    

 

 

    

 

 

    

 

 

 
     123,690         2.40       $ 30.13       $ 2,349,101   
  

 

 

    

 

 

    

 

 

    

 

 

 

(d) Restricted Stock

During the years ended December 31, 2013, 2012 and 2011, certain employees were granted an aggregate of 79,114, 46,617 and 41,220 shares of restricted stock, respectively. During the years ended December 31, 2013, 2012 and 2011, certain employees were also granted an aggregate of 69,995, 52,947 and 50,999 shares of restricted stock, respectively, which, in addition to a service condition, are subject to a performance condition that impacts the number of shares which ultimately vests. The performance condition is based upon our achievement of the respective year’s CFFO per share targets. Upon evaluating the results of the performance condition, the final number of shares is determined and such shares vest based on satisfaction of the service conditions. The service conditions of the awards provide for 20% vesting on each of the first and second anniversaries of the grant date and 30% vesting on each of the third and fourth anniversaries of the grant date provided the grantee continues employment on each anniversary date. Based on our 2013, 2012 and 2011 CFFO per diluted share and unit, 50,805 shares of the 2013 restricted stock awards (net of forfeitures), 49,325 shares of the 2012 restricted stock (net of forfeitures) and all of the 2011 restricted stock, respectively, satisfied the performance condition.

The grant date fair values, which equal the market price of Digital Realty Trust, Inc. common stock, are being expensed on a straight-line basis for service awards over the vesting period of the restricted stock, which ranges from three to four years. For performance based awards, we expense the fair value using an accelerated method with each vesting tranche valued as a separate award.

 

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December 31, 2013 and 2012

 

The expense recorded for the years ended December 31, 2013, 2012 and 2011 related to grants of restricted stock was approximately $2.7 million, $2.9 million and $2.0 million, respectively. We capitalized amounts relating to compensation expense of employees direct and incremental to construction and successful leasing activities of approximately $2.5 million, $2.1 million and $1.5 million for the years ended December 31, 2013, 2012 and 2011, respectively. Unearned compensation representing the unvested portion of the restricted stock totaled $8.7 million and $7.4 million as of December 31, 2013 and 2012, respectively. We expect to recognize this unearned compensation over the next 2.8 years on a weighted average basis.

(e) 401(k) Plan

We have a 401(k) plan whereby our employees may contribute a portion of their compensation to their respective retirement accounts, in an amount not to exceed the maximum allowed under the Code. The 401(k) Plan complies with Internal Revenue Service requirements as a 401(k) Safe Harbor Plan whereby discretionary contributions made by us are 100% vested. The aggregate cost of our contributions to the 401(k) Plan was approximately $2.4 million, $2.0 million, and $1.5 million for the years ended December 31, 2013, 2012 and 2011, respectively.

14. Derivative Instruments

Currently, we use interest rate swaps to manage our interest rate risk. The valuation of these instruments is determined using widely accepted valuation techniques including discounted cash flow analysis on the expected cash flows of each derivative. This analysis reflects the contractual terms of the derivatives, including the period to maturity, and uses observable market-based inputs, including interest rate curves. The fair values of interest rate swaps are determined using the market standard methodology of netting the discounted future fixed cash receipts (or payments) and the discounted expected variable cash payments (or receipts). The variable cash payments (or receipts) are based on an expectation of future interest rates (forward curves) derived from observable market interest rate curves.

To comply with the provisions of fair value accounting guidance, we incorporate credit valuation adjustments to appropriately reflect both our own nonperformance risk and the respective counterparty’s nonperformance risk in the fair value measurements. In adjusting the fair value of our derivative contracts for the effect of nonperformance risk, we have considered the impact of netting and any applicable credit enhancements, such as collateral postings, thresholds, mutual puts, and guarantees.

Although we have determined that the majority of the inputs used to value our derivatives fall within Level 2 of the fair value hierarchy, the credit valuation adjustments associated with our derivatives utilize Level 3 inputs, such as estimates of current credit spreads to evaluate the likelihood of default by us and our counterparties. However, as of December 31, 2013, we have assessed the significance of the impact of the credit valuation adjustments on the overall valuation of our derivative positions and have determined that the credit valuation adjustments are not significant to the overall valuation of our derivatives. As a result, we have determined that our derivative valuations in their entirety are classified in Level 2 of the fair value hierarchy. We do not have any fair value measurements on a recurring basis using significant unobservable inputs (Level 3) as of December 31, 2013 or December 31, 2012.

Cash Flow Hedges of Interest Rate Risk

Our objectives in using interest rate derivatives are to add stability to interest expense and to manage our exposure to interest rate movements related to US LIBOR, GBP LIBOR and EURIBOR based mortgage loans as

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

well as the U.S. LIBOR and SGD-SOR based tranches of the unsecured term loan. To accomplish this objective, we primarily use interest rate swaps as part of our interest rate risk management strategy. Interest rate swaps designated as cash flow hedges involve the receipt of variable-rate amounts from a counterparty in exchange for making fixed-rate payments over the life of the agreements without exchange of the underlying notional amount.

We record all our interest rate swaps on the consolidated balance sheet at fair value. In determining the fair value of our interest rate swaps, we consider the credit risk of our counterparties. These counterparties are generally larger financial institutions engaged in providing a variety of financial services. These institutions generally face similar risks regarding adverse changes in market and economic conditions, including, but not limited to, fluctuations in interest rates, exchange rates, equity and commodity prices and credit spreads. The current and pervasive disruptions in the financial markets have heightened the risks to these institutions.

Our agreements with some of our derivative counterparties provide that (1) we could be declared in default on our derivative obligations if repayment of any of our indebtedness over $75.0 million is accelerated by the lender due to our default on the indebtedness and (2) we could be declared in default on a certain derivative obligation if we default on any of our indebtedness, including a default where repayment of underlying indebtedness has not been accelerated by the lender.

The effective portion of changes in the fair value of derivatives designated and that qualify as cash flow hedges is recorded in accumulated other comprehensive income (loss) and is subsequently reclassified into earnings in the period that the hedged forecasted transaction affects earnings. During 2013, such derivatives were used to hedge the variable cash flows associated with existing variable-rate debt. The fair value of these derivatives was $0.1 million and ($8.7) million at December 31, 2013 and December 31, 2012, respectively. The ineffective portion of the change in fair value of the derivatives is recognized directly in earnings. During the years ended December 31, 2013, 2012 and 2011, there were no ineffective portions to our interest rate swaps.

Amounts reported in accumulated other comprehensive loss related to interest rate swaps will be reclassified to interest expense as interest payments are made on our debt. As of December 31, 2013, we estimate that an additional $3.1 million will be reclassified as an increase to interest expense during the year ending December 31, 2014, when the hedged forecasted transactions impact earnings.

As of December 31, 2013 and December 31, 2012, we had the following outstanding interest rate derivatives that were designated as cash flow hedges of interest rate risk (in thousands):

 

Notional Amount    

Type of
Derivative

   Strike
Rate
    

Effective Date

  

Expiration Date

   Fair Value at Significant Other
Observable Inputs (Level 2)
 

As of
December 31,
2013

    As of
December 31,
2012
                As of
December 31,
2013
    As of
December 31,
2012
 
$ 410,905 (1)     $ 410,905 (1)     Swap      0.717       Various    Various    $ (76   $ (3,642
  150,040 (2)       155,099 (2)     Swap      0.925       Jul. 17, 2012    Apr. 18, 2017      131        (1,131
  —          69,612 (3)     Swap      2.980       April 6, 2009    Nov. 30, 2013 (5)      —          (1,552
  —          39,579 (4)     Swap      2.703       Dec. 3, 2009    Sep. 4, 2014 (6)      —          (1,617
  —          13,335 (4)     Swap      3.981       May 17, 2006    Jul. 18, 2013 (7)      —          (275
  —          9,649 (4)     Swap      4.070       Jun. 23, 2006    Jul. 18, 2013 (7)      —          (203
  —          8,492 (4)     Swap      3.989       Jul. 27, 2006    Oct. 18, 2013      —          (255

 

 

                 

 

 

   

 

 

 
$ 560,945      $ 706,671                  $ 55      $ (8,675

 

 

   

 

 

               

 

 

   

 

 

 

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

 

(1) Represents the U.S. dollar tranche of the unsecured term loan.
(2) Represents a portion of the Singapore dollar tranche of the unsecured term loan. Translation to U.S. dollars is based on exchange rate of $0.79 to 1.00 SGD as of December 31, 2013 and $0.82 to 1.00 SGD as of December 31, 2012.
(3) Translation to U.S. dollars is based on exchange rate of $1.63 to £1.00 as of December 31, 2012.
(4) Translation to U.S. dollars is based on exchange rate of $1.32 to €1.00 as of December 31, 2012.
(5) The swap agreement was terminated as the mortgage loan was paid in full in October 2013.
(6) The swap agreement was terminated as the mortgage loan was paid in full in June 2013.
(7) The swap agreements were terminated as the mortgage loans were paid in full in July 2013.

15. Fair Value of Instruments

We disclose fair value information about all financial instruments, whether or not recognized in the consolidated balance sheets, for which it is practicable to estimate fair value. Current accounting guidance requires the Company to disclose fair value information about all financial instruments, whether or not recognized in the balance sheets, for which it is practicable to estimate fair value.

The Company’s disclosures of estimated fair value of financial instruments at December 31, 2013 and December 31, 2012 were determined using available market information and appropriate valuation methods. Considerable judgment is necessary to interpret market data and develop estimated fair value. The use of different market assumptions or estimation methods may have a material effect on the estimated fair value amounts.

The carrying amounts for cash and cash equivalents, restricted cash, accounts and other receivables, accounts payable and other accrued liabilities, accrued dividends and distributions, security deposits and prepaid rents approximate fair value because of the short-term nature of these instruments. As described in note 14, the interest rate swaps are recorded at fair value.

We calculate the fair value of our mortgage loans, unsecured term loan, unsecured senior notes and exchangeable senior debentures based on currently available market rates assuming the loans are outstanding through maturity and considering the collateral and other loan terms. In determining the current market rate for fixed rate debt, a market spread is added to the quoted yields on federal government treasury securities with similar maturity dates to debt. The carrying value of our global revolving credit facility approximates fair value, due to the variability of interest rates.

As of December 31, 2013 and December 31, 2012, the aggregate estimated fair value and carrying value of our global revolving credit facility, unsecured term loan, unsecured senior notes, exchangeable senior debentures and mortgage loans were as follows (in thousands):

 

    

 

   As of December 31, 2013      As of December 31, 2012  
     Categorization
under the fair
value hierarchy
   Estimated
Fair Value
     Carrying
Value
     Estimated
Fair Value
     Carrying
Value
 

Global revolving credit facility (1)

   Level 2    $ 724,668       $ 724,668       $ 723,729       $ 723,729   

Unsecured term loan (2)

   Level 2      1,020,984         1,020,984         757,839         757,839   

Unsecured senior notes (3)(4)

   Level 2      2,379,999         2,364,232         1,907,188         1,738,221   

Exchangeable senior debentures (3)

   Level 2      336,847         266,400         446,476         266,400   

Mortgage loans (3)

   Level 2      622,580         585,608         845,125         792,376   
     

 

 

    

 

 

    

 

 

    

 

 

 
      $ 5,085,078       $ 4,961,892       $ 4,680,357       $ 4,278,565   
     

 

 

    

 

 

    

 

 

    

 

 

 

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

 

(1) The carrying value of our global revolving credit facility approximates estimated fair value, due to the variability of interest rates and the stability of our credit rating.
(2) The carrying value of our unsecured term loan approximates estimated fair value, due to the variability of interest rates and the stability of our credit rating.
(3) Valuations for our unsecured senior notes and mortgage loans are determined based on the expected future payments discounted at risk-adjusted rates. The 2015 Notes, 2020 Notes, 2021 Notes, 2022 Notes and 2025 Notes and exchangeable senior debentures are valued based on quoted market prices.
(4) The carrying value of the 2015 Notes, 2020 Notes, 2021 Notes, 2022 Notes and 2025 Notes are net of discount of $15,047 and $11,779 in the aggregate as of December 31, 2013 and December 31, 2012, respectively.

16. Tenant Leases

The future minimum lease payments to be received (excluding operating expense reimbursements) by us as of December 31, 2013, under non-cancelable operating leases are as follows (in thousands):

 

2014

   $  1,079,070   

2015

     1,040,492   

2016

     955,323   

2017

     889,509   

2018

     797,528   

Thereafter

     3,540,799   
  

 

 

 

Total

   $ 8,302,721   
  

 

 

 

Included in the above amounts are minimum lease payments to be received from The tel(x) Group, Inc., or tel(x), and SoftLayer Technologies, Inc., or SoftLayer, previously related parties as further discussed in note 17. The future minimum lease payments to be received (excluding operating expense reimbursements) by us from tel(x) and SoftLayer as of December 31, 2013, under non-cancelable operating leases are as follows (in thousands):

 

2014

   $  130,963   

2015

     135,123   

2016

     137,069   

2017

     135,251   

2018

     136,967   

Thereafter

     1,074,481   
  

 

 

 

Total

   $ 1,749,854   
  

 

 

 

17. Related Party Transactions

In December 2006, we entered into ten leases with tel(x) pursuant to which tel(x) provides enhanced meet-me-room services to our customers. The initial terms of these leases expire in 2026, and tel(x) has options to extend them through 2046. tel(x) was acquired by GI Partners Fund II, LLP in November 2006, which, collectively with GI Partners Side Fund II, L.P., owned the majority of the outstanding stock of tel(x). Richard Magnuson, our former director and Chairman who served until our 2012 Annual Meeting of Stockholders, or the Annual Meeting, is the chief executive officer of the advisor to GI Partners Fund II, LLP and GI Partners Side Fund II, L.P. During the year ended December 31, 2011, GI Partners Fund II, LLP and GI Partners Side Fund II,

 

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DIGITAL REALTY TRUST, L.P. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

L.P completed the sale of tel(x) to an unrelated third party. Our consolidated statements of operations include rental revenues of approximately $48.6 million, $45.7 million and $42.5 million from tel(x) for the years ended December 31, 2013, 2012 and 2011, respectively, from leases entered into before tel(x) was sold to an unrelated third party. In connection with the lease agreements, we entered into an operating agreement with tel(x), effective as of December 1, 2006, with respect to joint sales and marketing efforts, designation of representatives to manage the national relationship between us and tel(x) and future meet-me-room facilities. As of December 31, 2013 and 2012, tel(x) leased from us 341,202 square feet under 55 lease agreements and 288,940 square feet under 44 lease agreements, respectively; all but 14 leases for 86,888 square feet were entered into prior to the sale of tel(x) to an unrelated third party in September 2011.

We also entered into an agreement with tel(x), effective as of December 1, 2006, with respect to percentage rent arising out of potential future lease agreements for rentable space in buildings covered by the meet-me-room lease agreements. Percentage rent earned during the years ended December 31, 2013, 2012 and 2011 amounted to approximately $6.0 million, $4.8 million and $3.6 million, respectively. In addition, in connection with the lease agreements, we entered into a management agreement with tel(x), effective as of December 1, 2007, pursuant to which tel(x) agreed to provide us with certain management services in exchange for a management fee of one percent of rents actually collected by tel(x).

Prior to the 2012 Annual Meeting, we had entered into nine leases with SoftLayer, all of which are in place as of December 31, 2013. The initial terms of these leases expire from 2013 to 2025, and SoftLayer has options to extend them from 2018 through 2035. On August 3, 2010, GI Partners Fund III, L.P. acquired a controlling interest in SoftLayer. Richard Magnuson, our former director and Chairman who served until our Annual Meeting, is also a manager of the general partner to GI Partners Fund III, L.P. Our consolidated statements of operations include rental revenues of approximately $53.9 million, $48.3 million and $20.2 million from SoftLayer for the years ended December 31, 2013, 2012 and 2011, respectively, from leases entered into before Mr. Magnuson’s term as a member of our Board of Directors and our Chairman ended. In July 2013, SoftLayer was acquired by IBM.

Mr. Magnuson did not stand for re-election to our Board of Directors at our Annual Meeting. His term as a member of our Board of Directors and our Chairman ended effective April 23, 2012, the date of the Annual Meeting.

18. Commitments and Contingencies

(a) Operating Leases

We have a ground lease obligation on 2010 East Centennial Circle that expires in 2082. After February 2036, rent for the remaining term of the 2010 East Centennial Circle ground lease will be determined based on a fair market value appraisal of the property and, as result, rent after February 2036 is excluded from the minimum commitment information below.

We have ground leases on Paul van Vlissingenstraat 16 that expires in 2054, Chemin de l’Epinglier 2 that expires in 2074, Clonshaugh Industrial Estate I and II that expires in 2981, Manchester Technopark that expires in 2125, 29A International Business Park that expires in 2038, Gyroscoopweg 2E-2F, which has a continuous ground lease and will be adjusted on January 1, 2042, and Naritaweg 52, which has a continuous ground lease. In late 2011, we executed a lease for a new location for our headquarters, which began in May 2012, with a lease term of 12 years with an option to extend the lease for an additional five years. We also have operating leases at 111 8 th Avenue (2 nd and 6 th floors), 8100 Boone Boulevard, 111 8 th Avenue (3 rd and 7 th floors) and 410 Commerce Boulevard, which expire in June 2024, September 2017, February 2022 and December 2026, respectively. The

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

lease at 111 8 th Avenue (2 nd and 6 th floors) has an option to extend the lease until June 2034 and the lease at 111 8 th Avenue (3 rd and 7 th floors) has an option to extend the lease until February 2032. The leases at 8100 Boone Boulevard and 410 Commerce Boulevard have no extension options.

We have a fully prepaid ground lease on 2055 E. Technology Circle that expires in 2083. We have a fully prepaid ground lease on Cateringweg 5 that expires in 2059. The ground lease at Naritaweg 52 has been prepaid through December 2036.

Rental expense for these leases was approximately $23.1 million, $10.2 million, and $8.5 million for the years ended December 31, 2013, 2012 and 2011 respectively. In 2013, a non-cash $10.0 million straight-line rent expense adjustment was recorded in rental property operating and maintenance expenses related to a lease amendment executed in September 2010, $7.5 million of this amount related to prior years. This adjustment was deemed to be immaterial to both the current year and prior year financial statements taken as a whole.

The minimum commitment under these leases, excluding the fully prepaid ground leases, as of December 31, 2013 was as follows (in thousands):

 

2014

   $  13,377   

2015

     15,381   

2016

     14,798   

2017

     14,060   

2018

     13,411   

Thereafter

     111,742   
  

 

 

 

Total

   $ 182,769   
  

 

 

 

(b) Contingent liabilities

As part of the acquisition of 29A International Business Park, the seller could earn additional consideration based on future net operating income growth in excess of certain performance targets, as defined. As of December 31, 2013, construction is not complete and none of the leases executed subsequent to purchase would cause an amount to become probable of payment and therefore no amount is accrued as of December 31, 2013. The maximum amount that could be earned by the seller is $50.0 million SGD (or approximately $39.6 million based on the exchange rate as of December 31, 2013). The earnout contingency expires in November 2020.

One of the tenants at our Convergence Business Park property has an option to expand as part of their lease agreement, which expires in April 2017. As part of this option, development activities are not permitted on specifically identified expansion space within the property until April 2014. If the tenant elects to take this option, we can elect one of two options. The first option is to construct and develop an additional shell building on the expansion space. Concurrent with this obligation, the tenant would execute an amendment to the existing lease to reflect the expansion of the space and include the additional shell building. The second option is to sell the existing building and the expansion space to the tenant for a price of approximately $24.0 million and $225,000 per square acre, respectively, plus additional adjustments as provided in the lease.

As part of the acquisition of the Sentrum Portfolio, the seller could earn additional consideration based on future net returns on vacant space to be developed, but not currently leased, as defined in the purchase agreement for the acquisition. The initial estimate of fair value of contingent consideration was approximately £56.5 million

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

(or approximately $87.6 million based on the exchange rate as of July 11, 2012, the acquisition date). During the year ended December 31, 2013, we made certain immaterial corrections to the initial measurement of the accrued contingent consideration that resulted in an additional $5.8 million of purchase price allocated to investments in real estate. These corrections had no material impact on reported net income for the period. We have adjusted the contingent consideration to fair value at each reporting date with changes in fair value recognized in operating income. At December 31, 2013, the fair value of the contingent consideration for Sentrum was £39.2 million (or approximately $64.9 million based on the exchange rate as of December 31, 2013) and is currently accrued in accounts payable and other accrued expenses in the consolidated balance sheet. During the year ended December 31, 2013, we have made earnout payments of approximately £16.9 million (or approximately $25.8 million based on the exchange rates as of the date of each payment). Change in fair value of contingent consideration for Sentrum was an increase to operating income of approximately $1.8 million and $1.1 million for the years ended December 31, 2013 and 2012, respectively. The earn-out contingency expires in July 2015. This amount will be reassessed on a quarterly basis, with any changes being recognized in earnings. Increases or decreases in the fair value of the contingent consideration can result from changes in discount periods, discount rates and probabilities that contingencies will be met.

(c) Construction Commitments

Our properties require periodic investments of capital for tenant-related capital expenditures and for general capital improvements and from time to time in the normal course of our business, we enter into various construction contracts with third parties that may obligate us to make payments. At December 31, 2013, we had open commitments related to construction contracts of approximately $202.1 million.

(d) Legal Proceedings

Although the Company is involved in legal proceedings arising in the ordinary course of business, as of December 31, 2013, the Company is not currently a party to any legal proceedings nor, to its knowledge, is any legal proceeding threatened against it that it believes would have a material adverse effect on its financial position, results of operations or liquidity.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

19. Quarterly Financial Information (Digital Realty Trust, Inc.) (unaudited)

The tables below reflect selected quarterly information for the years ended December 31, 2013 and 2012. Certain amounts have been reclassified to conform to the current year presentation (in thousands, except per share amounts).

 

     Three Months Ended  
     December 31,
2013
     September 30,
2013
     June 30,
2013
     March 31,
2013
 

Total operating revenues

   $ 380,931       $ 379,456       $ 363,502       $ 358,370   

Net income

     55,667         153,480         59,621         51,681   

Net income attributable to Digital Realty Trust, Inc.

     54,703         150,598         58,476         50,711   

Preferred stock dividends

     11,726         11,726         11,399         8,054   

Net income available to common stockholders

     42,977         138,872         47,077         42,657   

Basic net income per share available to common stockholders

   $ 0.33       $ 1.08       $ 0.37       $ 0.34   

Diluted net income per share available to common stockholders

   $ 0.33       $ 1.06       $ 0.37       $ 0.34   
  

 

 

    

 

 

    

 

 

    

 

 

 
     Three Months Ended  
     December 31,
2012
     September 30,
2012
     June 30,
2012
     March 31,
2012
 

Total operating revenues

   $ 349,736       $ 342,479       $ 303,704       $ 283,148   

Net income

     55,895         56,921         53,968         49,263   

Net income attributable to Digital Realty Trust, Inc.

     54,566         55,392         52,334         48,042   

Preferred stock dividends

     9,751         9,777         10,313         8,831   

Net income available to common stockholders

     44,815         45,615         42,021         39,211   

Basic net income per share available to common stockholders

   $ 0.36       $ 0.37       $ 0.38       $ 0.37   

Diluted net income per share available to common stockholders

   $ 0.36       $ 0.37       $ 0.38       $ 0.36   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

December 31, 2013 and 2012

 

20. Quarterly Financial Information (Digital Realty Trust, L.P.) (unaudited)

The tables below reflect selected quarterly information for the years ended December 31, 2013 and 2012. Certain amounts have been reclassified to conform to the current year presentation (in thousands, except per unit amounts).

 

     Three Months Ended  
     December 31,
2013
     September 30,
2013
     June 30,
2013
     March 31,
2013
 

Total operating revenues

   $ 380,931       $ 379,456       $ 363,502       $ 358,370   

Net income

     55,667         153,480         59,621         51,681   

Net income attributable to Digital Realty Trust, L.P.

     55,552         153,355         59,412         51,535   

Preferred unit distributions

     11,726         11,726         11,399         8,054   

Net income available to common unitholders

     43,826         141,629         48,013         43,481   

Basic net income per unit available to common unitholders

   $ 0.33       $ 1.08       $ 0.37       $ 0.34   

Diluted net income per unit available to common unitholders

   $ 0.33       $ 1.06       $ 0.37       $ 0.34   
  

 

 

    

 

 

    

 

 

    

 

 

 
     Three Months Ended  
     December 31,
2012
     September 30,
2012
     June 30,
2012
     March 31,
2012
 

Total operating revenues

   $ 349,736       $ 342,479       $ 303,704       $ 283,148   

Net income

     55,895         56,921         53,968         49,263   

Net income attributable to Digital Realty Trust, L.P.

     55,902         56,966         53,995         49,628   

Preferred unit distributions

     9,751         9,777         10,313         8,831   

Net income available to common unitholders

     46,151         47,189         43,682         40,797   

Basic net income per unit available to common unitholders

   $ 0.36       $ 0.37       $ 0.38       $ 0.37   

Diluted net income per unit available to common unitholders

   $ 0.36       $ 0.37       $ 0.38       $ 0.36   
  

 

 

    

 

 

    

 

 

    

 

 

 

21. Subsequent Events

On February 11, 2014, we declared the following dividends per share and the Operating Partnership declared an equivalent distribution per unit:

 

Share / Unit Class

  Series E
Preferred Stock
and Unit
    Series F
Preferred Stock
and Unit
    Series G
Preferred Stock
and Unit
    Common stock and
common unit
 

Dividend and distribution amount

  $ 0.437500      $ 0.414063      $ 0.367188      $ 0.830000   

Dividend and distribution payable date

    March 31, 2014        March 31, 2014        March 31, 2014        March 31, 2014   

Dividend and distribution payable to holders of record on

    March 14, 2014        March 14, 2014        March 14, 2014        March 14, 2014   

Annual equivalent rate of dividend and distribution

  $ 1.750      $ 1.656      $ 1.469      $ 3.320   

 

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DIGITAL REALTY TRUST, INC.

DIGITAL REALTY TRUST, L.P.

SCHEDULE III

PROPERTIES AND ACCUMULATED DEPRECIATION

DECEMBER 31, 2013

(In thousands)

 

    Metropolitan
Area
  Encumbrances     Initial costs     Costs capitalized
subsequent to
acquisition
    Total costs     Accumulated
depreciation
and
amortization
    Date of
acquisition
or
construction
    Acquisition
(A) or
construction
(C)
 
      Land     Acquired
ground
lease
    Buildings and
improvements
    Improvements     Carrying
costs
    Land     Acquired
ground
lease
    Buildings and
improvements
    Total        

PROPERTIES:

                           

36 NE 2nd Street

  Miami     15,656       1,942       —          24,184       9,664       —          1,942       —          33,848       35,790       (11,572     2002        (A

2323 Bryan Street

  Dallas     —          1,838       —          77,604       43,154       —          1,838       —          120,758       122,596       (44,316     2002        (A

6 Braham Street

  London     —          3,776       —          28,166       2,779       —          4,154       —          30,567       34,721       (9,613     2002        (A

300 Boulevard East

  NY Metro     40,147       5,140       —          48,526       60,471       —          5,140       —          108,997       114,137       (44,426     2002        (A

2334 Lundy Place

  Silicon Valley     37,930       3,607       —          23,008       66       —          3,607       —          23,074       26,681       (8,125     2002        (A

34551 Ardenwood Boulevard 1-4

  Silicon Valley     52,151       15,330       —          32,419       3,712       —          15,330       —          36,131       51,461       (13,307     2003        (A

2440 Marsh Lane

  Dallas     —          1,477       —          10,330       71,012       —          1,477       —          81,342       82,819       (35,013     2003        (A

2010 East Centennial Circle

  Phoenix     —          —          1,477       16,472       (103     —          —          1,322       16,524       17,846       (5,405     2003        (A

375 Riverside Parkway

  Atlanta     —          1,250       —          11,578       30,963       —          1,250       —          42,541       43,791       (16,671     2003        (A

3300 East Birch Street

  Los Angeles     6,820       3,777       —          4,611       569       —          3,777       —          5,180       8,957       (2,606     2003        (A

47700 Kato Road & 1055 Page Avenue

  Silicon Valley     —          5,272       —          20,166       3,037       —          5,272       —          23,203       28,475       (5,331     2003        (A

4849 Alpha Road

  Dallas     9,608       2,983       —          10,650       43,363       —          2,983       —          54,013       56,996       (13,510     2004        (A

600 West Seventh Street

  Los Angeles     49,548       18,478       —          50,824       53,306       —          18,478       —          104,130       122,608       (41,827     2004        (A

2045 & 2055 LaFayette Street

  Silicon Valley     63,623       6,065       —          43,817       19       —          6,065       —          43,836       49,901       (13,478     2004        (A

100 & 200 Quannapowitt Parkway

  Boston     31,139       12,416       —          26,154       67,279       —          12,416       —          93,433       105,849       (16,590     2004        (A

11830 Webb Chapel Road

  Dallas     29,596       5,881       —          34,473       1,885       —          5,881       —          36,358       42,239       (12,128     2004        (A

150 South First Street

  Silicon Valley     50,097       2,068       —          29,214       1,185       —          2,068       —          30,399       32,467       (8,720     2004        (A

3065 Gold Camp Drive

  Sacramento     —          1,886       —          10,686       17,553       —          1,886       —          28,239       30,125       (5,778     2004        (A

200 Paul Avenue

  San Francisco     70,713       14,427       —          75,777       61,597       —          14,427       —          137,374       151,801       (48,712     2004        (A

1100 Space Park Drive

  Silicon Valley     52,115       5,130       —          18,206       26,869       —          5,130       —          45,075       50,205       (19,105     2004        (A

3015 Winona Avenue

  Los Angeles     —          6,534       —          8,356       5       —          6,534       —          8,361       14,895       (2,917     2004        (A

833 Chestnut Street

  Philadelphia     —          5,738       —          42,249       57,199       —          5,738       —          99,448       105,186       (41,297     2005        (A

1125 Energy Park Drive

  Minneapolis     —          2,775       —          10,761       188       —          2,775       —          10,949       13,724       (3,625     2005        (A

350 East Cermak Road

  Chicago     —          8,466       —          103,232       220,134       —          8,620       —          323,212       331,832       (121,556     2005        (A

 

173


Table of Contents
Index to Financial Statements

DIGITAL REALTY TRUST, INC.

DIGITAL REALTY TRUST, L.P.

SCHEDULE III

PROPERTIES AND ACCUMULATED DEPRECIATION—(Continued)

DECEMBER 31, 2013

(In thousands)

 

    Metropolitan
Area
  Encumbrances     Initial costs     Costs capitalized
subsequent to
acquisition
    Total costs     Accumulated
depreciation
and
amortization
    Date of
acquisition
or
construction
    Acquisition
(A) or
construction
(C)
 
        Land     Acquired
ground
lease
    Buildings and
improvements
    Improvements     Carrying
costs
    Land     Acquired
ground
lease
    Buildings and
improvements
    Total        

PROPERTIES:

                           

8534 Concord Center Drive

  Denver     —          2,181       —          11,561       47       —          2,181       —          11,608       13,789       (4,090     2005        (A

2401 Walsh Street

  Silicon Valley     —          5,775       —          19,267       36       —          5,775       —          19,303       25,078       (5,614     2005        (A

2403 Walsh Street

  Silicon Valley     —          5,514       —          11,695       38       —          5,514       —          11,733       17,247       (3,638     2005        (A

200 North Nash Street

  Los Angeles     —          4,562       —          12,503       221       —          4,562       —          12,724       17,286       (4,264     2005        (A

731 East Trade Street

  Charlotte     4,799 (1)       1,748       —          5,727       248       —          1,748       —          5,975       7,723       (1,649     2005        (A

113 North Myers

  Charlotte     —          1,098       —          3,127       1,893       —          1,098       —          5,020       6,118       (1,646     2005        (A

125 North Myers

  Charlotte     —          1,271       —          3,738       6,174       —          1,271       —          9,912       11,183       (5,162     2005        (A

Paul van Vlissingenstraat 16

  Amsterdam     —          —          —          15,255       33,301       —          —          —          48,556       48,556       (10,434     2005        (A

600-780 S. Federal

  Chicago     —          7,849       —          27,881       32,147       —          7,849       —          60,028       67,877       (10,137     2005        (A

115 Second Avenue

  Boston     —          1,691       —          12,569       10,146       —          1,691       —          22,715       24,406       (10,570     2005        (A

Chemin de l’Epinglier 2

  Geneva     —          —          —          20,071       3,319       —          —          —          23,390       23,390       (6,560     2005        (A

251 Exchange Place

  N. Virginia     —          1,622       —          10,425       304       —          1,622       —          10,729       12,351       (3,467     2005        (A

7500 Metro Center Drive

  Austin     —          1,177       —          4,877       60,558       —          1,177       —          65,435       66,612       (1,900     2005        (A

7620 Metro Center Drive

  Austin     —          510       —          6,760       422       —          510       —          7,182       7,692       (1,907     2005        (A

3 Corporate Place

  NY Metro     —          2,124       —          12,678       95,783       —          2,124       —          108,461       110,585       (51,194     2005        (A

4025 Midway Road

  Dallas     —          2,196       —          14,037       27,960       —          2,196       —          41,997       44,193       (18,593     2006        (A

Clonshaugh Industrial Estate

  Dublin     —          —          1,444       5,569       3,454       —          —          114       10,353       10,467       (4,541     2006        (A

6800 Millcreek Drive

  Toronto     —          1,657       —          11,352       2,278       —          1,657       —          13,630       15,287       (4,184     2006        (A

101 Aquila Way

  Atlanta     —          1,480       —          34,797       45       —          1,480       —          34,842       36,322       (10,143     2006        (A

12001 North Freeway

  Houston     —          6,965       —          23,492       134,505       —          6,965       —          157,997       164,962       (13,119     2006        (A

120 E Van Buren

  Phoenix     —          4,524       —          157,822       103,284       —          4,524       —          261,106       265,630       (75,472     2006        (A

 

174


Table of Contents
Index to Financial Statements

DIGITAL REALTY TRUST, INC.

DIGITAL REALTY TRUST, L.P.

SCHEDULE III

PROPERTIES AND ACCUMULATED DEPRECIATION—(Continued)

DECEMBER 31, 2013

(In thousands)

 

   

 

 

 

    Initial costs     Costs capitalized
subsequent to
acquisition
    Total costs    

 

   

 

   

 

 
    Metropolitan
Area
  Encumbrances     Land     Acquired
ground
lease
    Buildings and
improvements
    Improvements     Carrying
costs
    Land     Acquired
ground
lease
    Buildings and
improvements
    Total     Accumulated
depreciation
and
amortization
    Date of
acquisition
or
construction
    Acquisition
(A) or
construction
(C)
 

PROPERTIES:

                           

Gyroscoopweg 2E-2F

  Amsterdam     —          —          —          13,450       951       —          —          —          14,401       14,401       (3,903     2006        (A

Clonshaugh Industrial Estate II

  Dublin     —          —          —          —          91,862       —          —          —          91,862       91,862       (29,342     2006        (C

600 Winter Street

  Boston     —          1,429       —          6,228       456       —          1,429       —          6,684       8,113       (1,392     2006        (A

2300 NW 89th Place

  Miami     —          1,022       —          3,767       18       —          1,022       —          3,785       4,807       (1,156     2006        (A

2055 East Technology Circle

  Phoenix     —          —          —          8,519       27,130       —          —          —          35,649       35,649       (15,954     2006        (A

114 Rue Ambroise Croizat

  Paris     —          12,261       —          34,051       88,043       —          12,062       —          122,293       134,355       (33,418     2006        (A

Unit 9, Blanchardstown Corporate Park

  Dublin     —          1,927       —          40,024       26,403       —          1,990       —          66,364        68,354       (15,966     2006        (A

111 8th Avenue

  NY Metro     —          —          —          17,688       14,736       —          —          —          32,424       32,424       (23,556     2006        (A

1807 Michael Faraday Court

  N. Virginia     —          1,499       —          4,578       1,908       —          1,499       —          6,486       7,985       (2,245     2006        (A

8100 Boone Boulevard

  N. Virginia     —          —          —          158       1,046       —          —          —          1,204       1,204       (939     2006        (A

21110 Ridgetop Circle

  N. Virginia     —          2,934       —          14,311       1,307       —          2,934       —          15,618       18,552       (3,732     2007        (A

3011 Lafayette Street

  Silicon
Valley
    —          3,354       —          10,305       48,750       —          3,354       —          59,055       62,409       (29,543     2007        (A

44470 Chilum Place

  N. Virginia     —          3,531       —          37,360       1       —          3,531       —          37,361       40,892       (7,013     2007        (A

43881 Devin Shafron Drive

  N. Virginia     —          4,653       —          23,631       92,369       —          4,653       —          116,000       120,653       (51,622     2007        (A

43831 Devin Shafron Drive

  N. Virginia     —          3,027       —          16,247       602       —          3,027       —          16,849       19,876       (3,476     2007        (A

43791 Devin Shafron Drive

  N. Virginia     —          3,490       —          17,444       74,642       —          3,490       —          92,086       95,576       (23,513     2007        (A

Mundells Roundabout

  London     —          31,354       —          —          63,802       —          26,391       —          68,764       95,155       (9,200     2007        (C

210 N Tucker

  St. Louis     —          2,042       —          17,223       91,123       —          2,042       —          108,346       110,388       (8,160     2007        (A

900 Walnut Street

  St. Louis     —          1,791       —          29,516       3,798       —          1,791       —          33,314       35,105       (6,818     2007        (A

1 Savvis Parkway

  St. Louis     —          3,301       —          20,639       238       —          3,301       —          20,877       24,178       (4,176     2007        (A

1500 Space Park Drive

  Silicon
Valley
    —          6,732       —          6,325       46,168       —          4,106       —          55,119       59,225       (29,414     2007        (A

Cressex 1

  London     28,583       3,629       —          9,036       27,736       —          3,183       —          37,218       40,401       (13,186     2007        (A

Naritaweg 52

  Amsterdam     —          —          1,192       23,441       (1,215     —          —          1,124       22,294       23,418       (4,101     2007        (A

1 St. Anne’s Boulevard

  London     —          1,490       —          1,045       (287     —          1,267       —          981       2,248       (150     2007        (A

 

175


Table of Contents
Index to Financial Statements

DIGITAL REALTY TRUST, INC.

DIGITAL REALTY TRUST, L.P.

SCHEDULE III

PROPERTIES AND ACCUMULATED DEPRECIATION—(Continued)

DECEMBER 31, 2013

(In thousands)

 

    Metropolitan
Area
  Encumbrances     Initial costs     Costs capitalized
subsequent to
acquisition
    Total costs     Accumulated
depreciation
and
amortization
    Date of
acquisition
or
construction
    Acquisition
(A) or
construction
(C)
 
        Land     Acquired
ground
lease
    Buildings and
improvements
    Improvements     Carrying
costs
    Land     Acquired
ground
lease
    Buildings and
improvements
    Total        

PROPERTIES:

                           

2 St. Anne’s Boulevard

  London     —          922       —          695       43,672       —          844       —          44,445       45,289       (2,479     2007        (A

3 St. Anne’s Boulevard

  London     —          22,079       —          16,351       111,729       —          18,610       —          131,549       150,159       (28,064     2007        (A

365 South Randolphville Road

  NY Metro     —          3,019       —          17,404       226,767       —          3,019       —          244,171       247,190       (32,906     2008        (A

701 & 717 Leonard Street

  Dallas     —          2,165       —          9,934       448       —          2,165       —          10,382       12,547       (1,535     2008        (A

650 Randolph Road

  NY Metro     —          3,986       —          6,883       5,541       —          3,986       —          12,424       16,410       (1,154     2008        (A

Manchester Technopark

  Manchester     8,695       —          —          23,918       (3,567     —          —          —          20,351       20,351       (3,229     2008        (A

1201 Comstock Street

  Silicon Valley     —          2,093       —          1,606       26,244       —          3,398       —          26,545       29,943       (10,061     2008        (A

1550 Space Park Drive

  Silicon Valley     —          2,301       —          766       1,732       —          1,926       —          2,873       4,799       —          2008        (A

1525 Comstock Street

  Silicon Valley     —          2,293       —          16,216       29,322       —          2,061       —          45,770       47,831       (16,052     2008        (A

43915 Devin Shafron Drive

  N. Virginia     —          6,927       —          —          84,470       —          6,927       —          84,470       91,397       (25,810     2009        (C

43830 Devin Shafron Drive

  N. Virginia     —          5,509       —          —          77,172       —          5,509       —          77,172       82,681       (9,543     2009        (C

1232 Alma Road

  Dallas     —          2,267       —          3,740       61,203       —          2,267       —          64,943       67,210       (15,254     2009        (A

900 Quality Way

  Dallas     —          1,446       —          1,659       37,818       —          1,446       —          39,477       40,923       (4,264     2009        (A

1400 N. Bowser Road

  Dallas     —          2,041       —          3,389       355       —          2,041       —          3,744       5,785       —          2009        (A

1301 International Parkway

  Dallas     —          333       —          344       14       —          333       —          358       691       —          2009        (A

908 Quality Way

  Dallas     —          6,730       —          4,493       19,172       —          1,670       —          28,725       30,395       (6,549     2009        (A

904 Quality Way

  Dallas     —          760       —          744       6,870       —          760       —          7,614       8,374       (244     2009        (A

905 Security Row

  Dallas     —          4,056       —          1,553       103       —          4,056       —          1,656       5,712       —          2009        (A

1202 Alma Road

  Dallas     —          —          —          —          40,986       —          1,899       —          39,087       40,986       (3,371     2009        (C

1350 Duane

  Silicon Valley     —          7,081       —          69,817       60       —          7,081       —          69,877       76,958       (7,550     2009        (A

45901 & 45845 Nokes Boulevard

  N. Virginia     —          3,437       —          28,785       849       —          3,437       —          29,634       33,071       (3,265     2009        (A

 

176


Table of Contents
Index to Financial Statements

DIGITAL REALTY TRUST, INC.

DIGITAL REALTY TRUST, L.P.

SCHEDULE III

PROPERTIES AND ACCUMULATED DEPRECIATION—(Continued)

DECEMBER 31, 2013

(In thousands)

 

              Initial costs     Costs capitalized
subsequent to
acquisition
    Total costs                    
    Metropolitan
Area
  Encumbrances     Land     Acquired
ground
lease
    Buildings and
improvements
    Improvements     Carrying
costs
    Land     Acquired
ground
lease
    Buildings and
improvements
    Total     Accumulated
depreciation
and
amortization
    Date of
acquisition
or
construction
    Acquisition
(A) or
construction
(C)
 

PROPERTIES:

                           

21561 & 21571 Beaumeade Circle

  N. Virginia     —          3,966       —          24,211       44       —          3,966       —          24,255       28,221       (2,508     2009        (A

60 & 80 Merritt

  NY Metro     —          3,418       —          71,477       88,591       —          3,418       —          160,068       163,486       (10,898     2010        (A

55 Middlesex

  Boston     —          9,975       —          68,363       6,896       —          9,975       —          75,259       85,234       (9,633     2010        (A

128 First Avenue

  Boston     —          5,465       —          185,348       25,669       —          5,465       —          211,017       216,482       (28,232     2010        (A

Cateringweg 5

  Amsterdam     —          —          3,518       3,517       48,226       —          —          3,950       51,311       55,261       (3,410     2010        (A

1725 Comstock Street

  Silicon Valley     —          3,274       —          6,567       37,614       —          3,274       —          44,181       47,455       (9,399     2010        (A

3015 and 3115 Alfred Street

  Silicon Valley     —          6,533       —          3,725       56,783       —          6,533       —          60,508       67,041       (9,703     2010        (A

365 Main Street

  San Francisco     —          22,854       —          158,709       20,297       —          22,854       —          179,006       201,860       (17,533     2010        (A

720 2nd Street

  San Francisco     —          3,884       —          116,861       6,806       —          3,884       —          123,667       127,551       (11,825     2010        (A

2260 East El Segundo

  Los Angeles     —          11,053       —          51,397       11,479       —          11,053       —          62,876       73,929       (6,733     2010        (A

2121 South Price Road

  Phoenix     —          7,335       —          238,452       176,792       —          7,335       —          415,244       422,579       (28,972     2010        (A

4030 La Fayette

  N. Virginia     —          2,492       —          16,912       2,920       —          2,492       —          19,832       22,324       (2,116     2010        (A

4040 La Fayette

  N. Virginia     —          1,246       —          4,267       702       —          1,246       —          4,969       6,215       (427     2010        (A

4050 La Fayette

  N. Virginia     —          1,246       —          4,371       34,258       —          1,246       —          38,629       39,875       (7,097     2010        (A

800 Central Expressway

  Silicon Valley     —          8,976       —          18,155       94,689       —          8,976       —          112,844       121,820       (400     2010        (A

29A International Business Park

  Singapore     —          —          —          137,545       127,920       —          —          —          265,465       265,465       (23,873     2010        (A

Loudoun Parkway North

  N. Virginia     —          17,300       —          —          157,218        —          17,300        —          157,218        174,518        (3,976     2011        (C

1-23 Templar Road

  Sydney     —          11,173       —          —          47,365       —          9,760       —          48,778       58,538       (1,832     2011        (C

Fountain Court

  London     —          7,544       —          12,506       69,991       —          8,037       —          82,004       90,041       (1,807     2011        (C

98 Radnor Drive

  Melbourne     —          4,467       —          —          95,607       —          3,902       —          96,172       100,074       (3,106     2011        (C

Cabot Street

  Boston     —          2,386       —          —          57,977       —          2,427       —          57,936       60,363       (479     2011        (C

 

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Index to Financial Statements

DIGITAL REALTY TRUST, INC.

DIGITAL REALTY TRUST, L.P.

SCHEDULE III

PROPERTIES AND ACCUMULATED DEPRECIATION—(Continued)

DECEMBER 31, 2013

(In thousands)

 

    Metropolitan
Area
  Encumbrances     Initial costs     Costs capitalized
subsequent to
acquisition
    Total costs     Accumulated
depreciation
and
amortization
    Date of
acquisition
or
construction
    Acquisition
(A) or
construction
(C)
 
        Land     Acquired
ground
lease
    Buildings and
improvements
    Improvements     Carrying
costs
    Land     Acquired
ground
lease
    Buildings and
improvements
    Total        

PROPERTIES:

                           

3825 NW Aloclek Place

  Portland     —          1,689       —          —          56,365       —          1,689       —          56,365       58,054       (4,110     2011        (C

11085 Sun Center Drive

  Sacramento     —          2,490       —          21,509       —          —          2,490       —          21,509       23,999       (1,394     2011        (A

Profile Park

  Dublin     —          6,288       —          —          12,924       —          6,700       —          12,512       19,212       —          2011        (C

1506 Moran Road

  N. Virginia     —          1,527       —          —          17,001       —          1,115       —          17,413       18,528       (447     2011        (A

760 Doug Davis Drive

  Atlanta     —          4,837       —          53,551       1,647       —          4,837       —          55,198       60,035       (3,629     2011        (A

360 Spear Street

  San Francisco     —          19,828       —          56,733       (1,282     —          19,828       —          55,451       75,279       (4,206     2011        (A

2501 S. State Hwy 121

  Dallas     —          23,137       —          93,943       13,234       —          23,137       —          107,177       130,314       (8,275     2012        (A

9333, 9355, 9377 Grand Avenue

  Chicago     —          5,686       —          14,515       136,741       —          5,686       —          151,256       156,942       (2,829     2012        (A

8025 North Interstate 35

  Austin     6,426 (2)       2,920       —          8,512       157       —          2,920       —          8,669       11,589       (524     2012        (A

850 E Collins

  Dallas     —          1,614       —          —          56,095       —          1,614       —          56,095       57,709       (617     2012        (C

950 E Collins

  Dallas     —          1,546       —          —          36,092       —          1,546       —          36,092       37,638       —          2012        (C

400 S. Akard

  Dallas     —          10,075       —          62,730       200       —          10,075       —          62,930       73,005       (2,552     2012        (A

410 Commerce Boulevard

  NY Metro     —          —          —          —          28,944       —          —          —          28,944       28,944       (895     2012        (C

Unit B Prologis Park

  London     —          1,683       —          104,728       3,999       —          1,743       —          108,667       110,410       (4,754     2012        (A

The Chess Building

  London     —          —          7,355       219,273       24,781       —          —          8,108       243,301       251,409       (9,895     2012        (A

Unit 21 Goldsworth Park

  London     —          17,334       —          928,129       62,826       —          17,747       —          990,542       1,008,289       (39,399     2012        (A

11900 East Cornell

  Denver     —          3,352       —          80,640       100       —          3,352       —          80,740       84,092       (3,384     2012        (A

701 Union Boulevard

  NY Metro     —          10,045       —          6,755       19,309       —          10,045       —          26,064       36,109       —          2012        (A

23 Waterloo Road

  Sydney     —          7,112       —          3,868       (1,561     —          6,101       —          3,318       9,419       (100     2012        (A

1 Rue Jean-Pierre

  Paris     —          9,621       —          35,825       1,895       —          10,022       —          37,319       47,341       (1,353     2012        (A

Liet-dit le Christ de Saclay

  Paris     —          3,402       —          3,090       271       —          3,544       —          3,219       6,763       (151     2012        (A

127 Rue de Paris

  Paris     —          8,637       —          10,838       812       —          8,997       —          11,290       20,287       (509     2012        (A

17201 Waterview Parkway

  Dallas     —          2,070       —          6,409       —          —          2,070       —          6,409       8,479       (193     2013        (A

1900 S. Price Road

  Phoenix     —          5,380       —          16,975       191       —          5,380       —          17,166       22,546       (654     2013        (A

 

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Index to Financial Statements

DIGITAL REALTY TRUST, INC.

DIGITAL REALTY TRUST, L.P.

SCHEDULE III

PROPERTIES AND ACCUMULATED DEPRECIATION—(Continued)

DECEMBER 31, 2013

(In thousands)

 

    Metropolitan
Area
  Encumbrances     Initial costs     Costs capitalized
subsequent to
acquisition
    Total costs     Accumulated
depreciation
and
amortization
    Date of
acquisition
or
construction
    Acquisition
(A) or
construction
(C)
 
        Land     Acquired
ground
lease
    Buildings and
improvements
    Improvements     Carrying
costs
    Land     Acquired
ground
lease
    Buildings and
improvements
    Total        

371 Gough Road

  Toronto     —          7,394         677       12,006       —          7,139       —          12,938       20,077       (14     2013        (A

1500 Towerview Road

  Minneapolis     —          10,190         20,054       (50     —          10,190       —          20,004       30,194       (560     2013        (A

Principal Park

  London     —          11,837          —          13,753        —          14,695       —          10,895       25,590       —          2013        (C

MetCenter Business Park

  Austin     —          8,604         20,314       6       —          8,604       —          20,320       28,924       (486     2013        (A

Liverpoolweg 10

  Amsterdam     —          733         3,122       4,391       —          772       —          7,474       8,246       (69     2013        (A

DePresident

  Amsterdam     —          6,737         —          7,435        —          8,545       —          5,627       14,172       —          2013        (C

Saito Industrial Park

  Osaka     —          9,649          —          2,284        —          9,325       —          2,608       11,933       —          2013        (C

636 Pierce Street

  New York
Metro
    27,962 (3)       5,501         27,924       —          —          5,501       —          27,924       33,425       (29     2013        (A

Other

      —          —            8,298       36,207        —          —          —          44,505        44,505        (3,792    
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

     
        704,616        14,986       4,680,744        4,479,232        —          693,791       14,618       9,171,169       9,879,578       (1,565,996    
     

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

     

 

(1) The balance shown includes an unamortized premium of $613.
(2) The balance shown includes an unamortized premium of $112.
(3) The balance shown includes an unamortized premium of $1,634.

See accompanying independent registered public accounting firm report.

 

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Index to Financial Statements

DIGITAL REALTY TRUST, INC.

DIGITAL REALTY TRUST, L.P.

NOTES TO SCHEDULE III

PROPERTIES AND ACCUMULATED DEPRECIATION

December 31, 2013

(In thousands)

(1) Tax Cost

The aggregate gross cost of the Company’s properties for federal income tax purposes approximated $10,134.4 million (unaudited) as of December 31, 2013.

(2) Historical Cost and Accumulated Depreciation and Amortization

The following table reconciles the historical cost of the Company’s properties for financial reporting purposes for each of the years in the three-year period ended December 31, 2013.

 

     Year Ended December 31,  
     2013     2012      2011  

Balance, beginning of year

   $ 8,742,519      $ 6,118,583       $ 5,227,542   

Additions during period (acquisitions and improvements)

     1,345,046        2,623,936         891,041   

Deductions during period (dispositions and write-off of tenant improvements)

     (207,987 )               
  

 

 

   

 

 

    

 

 

 

Balance, end of year

   $ 9,879,578      $ 8,742,519       $ 6,118,583   
  

 

 

   

 

 

    

 

 

 

The following table reconciles accumulated depreciation and amortization of the Company’s properties for financial reporting purposes for each of the years in the three-year period ended December 31, 2013.

 

     Year Ended December 31,  
     2013     2012      2011  

Balance, beginning of year

   $ 1,206,017      $ 900,044       $ 660,700   

Additions during period (depreciation and amortization expense)

     386,935        305,973         239,344   

Deductions during period (dispositions and write-off of tenant improvements)

     (26,956 )               
  

 

 

   

 

 

    

 

 

 

Balance, end of year

   $ 1,565,996      $ 1,206,017       $ 900,044   
  

 

 

   

 

 

    

 

 

 

Schedules other than those listed above are omitted because they are not applicable or the information required is included in the consolidated financial statements or the notes thereto.

 

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Index to Financial Statements
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

Not Applicable.

 

ITEM 9A. CONTROLS AND PROCEDURES

Our Management’s Report on Internal Control over Financial Reporting for Digital Realty Trust, Inc. and Digital Realty Trust, L.P. are included in Part II, Item 8, Financial Statements and Supplementary Data on pages 94 and 95.

Evaluation of Disclosure Controls and Procedures (Digital Realty Trust, Inc.)

The company maintains disclosure controls and procedures that are designed to ensure that information required to be disclosed in its reports filed under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods specified in the U.S. Securities and Exchange Commission’s rules and forms, and that such information is accumulated and communicated to its management, including its chief executive officer and chief financial officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, the company’s management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and its management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Also, the company has investments in certain unconsolidated entities, which are accounted for using the equity method of accounting. As the company does not control or manage these entities, its disclosure controls and procedures with respect to such entities may be substantially more limited than those it maintains with respect to its consolidated subsidiaries.

As required by Rule 13a-15(b) or Rule 15d-15(b) of the Securities Exchange Act of 1934, as amended, management of the company carried out an evaluation, under the supervision and with participation of its chief executive officer and chief financial officer, of the effectiveness of the design and operation of its disclosure controls and procedures that were in effect as of December 31, 2013. Based on the foregoing, the company’s management concluded that its disclosure controls and procedures were effective at the reasonable assurance level.

There have been no changes in the company’s internal control over financial reporting during its most recent fiscal quarter that have materially affected, or are reasonably likely to materially affect, its internal control over financial reporting.

Evaluation of Disclosure Controls and Procedures (Digital Realty Trust, L.P.)

The operating partnership maintains disclosure controls and procedures that are designed to ensure that information required to be disclosed in its reports filed under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods specified in the U.S. Securities and Exchange Commission’s rules and forms, and that such information is accumulated and communicated to its management, including the chief executive officer and chief financial officer of its general partner, as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, the operating partnership’s management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and its management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Also, the operating partnership has investments in certain unconsolidated entities, which are accounted for using the equity method of accounting. As the operating partnership does not control or manage these entities, its disclosure controls and procedures with respect to such entities may be substantially more limited than those it maintains with respect to its consolidated subsidiaries.

 

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As required by Rule 13a-15(b) or Rule 15d-15(b) of the Securities Exchange Act of 1934, as amended, management of the operating partnership carried out an evaluation, under the supervision and with participation of the chief executive officer and chief financial officer of its general partner, of the effectiveness of the design and operation of its disclosure controls and procedures that were in effect as of December 31, 2013. Based on the foregoing, the operating partnership’s management concluded that its disclosure controls and procedures were effective at the reasonable assurance level.

There have been no changes in the operating partnership’s internal control over financial reporting during its most recent fiscal quarter that have materially affected, or are reasonably likely to materially affect, its internal control over financial reporting.

 

ITEM 9B. OTHER INFORMATION

None.

 

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Index to Financial Statements

PART III

 

ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

The information concerning our directors and executive officers required by Item 10 will be included in the Proxy Statement to be filed relating to our 2014 Annual Meeting of Stockholders and is incorporated herein by reference.

We have filed, as exhibits to this Annual Report on Form 10-K, the certifications of our Chief Executive Officer and Chief Financial Officer required under Section 302 of the Sarbanes Oxley Act to be filed with the Securities and Exchange Commission regarding the quality of our public disclosure. We have furnished to the Securities and Exchange Commission as exhibits to this Annual Report on Form 10-K for the year ended December 31, 2013, the certifications of our Chief Executive Officer and Chief Financial Officer required under Section 906 of the Sarbanes Oxley Act. In addition, as required by Section 303A.12 of the NYSE Listed Company Manual, our Chief Executive Officer made his annual certification to the NYSE stating that he was not aware of any violation by the Company of the corporate governance listing standards of the NYSE.

 

ITEM 11. EXECUTIVE COMPENSATION

The information concerning our executive compensation required by Item 11 will be included in the Proxy Statement to be filed relating to our 2014 Annual Meeting of Stockholders and is incorporated herein by reference.

 

ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

The information concerning our security ownership of certain beneficial owners and management and related stockholder matters (including equity compensation plan information) required by Item 12 will be included in the Proxy Statement to be filed relating to our 2014 Annual Meeting of Stockholders and is incorporated herein by reference.

 

ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR INDEPENDENCE

The information concerning certain relationships, related transactions and director independence required by Item 13 will be included in the Proxy Statement to be filed relating to our 2014 Annual Meeting of Stockholders and is incorporated herein by reference.

 

ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES

The information concerning our principal accounting fees and services required by Item 14 will be included in the Proxy Statement to be filed relating to our 2014 Annual Meeting of Stockholders and is incorporated herein by reference.

 

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Index to Financial Statements
ITEM 15. EXHIBITS.

 

Exhibit

Number

  

Description

  2.1*    Share Sale and Purchase Agreement, dated June 26, 2012, relating to Sentrum Holdings Limited between Glen Moar Properties Limited, Abry Partners VI, LP, Abry Advanced Securities Fund, LP, Abry Advanced Securities Fund II, LP, Abry Investment Partnership, LP, Abry Senior Equity Co-Investment Fund, III LP and Abry Senior Equity III, LP, as Sellers, Digital Stout Holding, LLC, as Purchaser, Sentrum Holdings Limited, Sentrum Construction Management Limited and Digital Realty Trust, L.P., as Guarantor amended (incorporated by reference to Exhibit 2.1 to Amendment No. 1 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on December 21, 2012).
  3.1    Articles of Amendment and Restatement of Digital Realty Trust, Inc., as amended (incorporated by reference to Exhibit 3.1 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on May 8, 2013).
  3.2    Fourth Amended and Restated Bylaws of Digital Realty Trust, Inc. (incorporated by reference to Exhibit 3.1 to Digital Realty Trust, Inc.’s Current Report on Form 8-K filed on February 21, 2012).
  3.3    Certificate of Limited Partnership of Digital Realty Trust, L.P. (incorporated by reference to Exhibit 3.1 to Digital Realty Trust, L.P.’s General Form for Registration of Securities on Form 10 filed on June 25, 2010 (File No. 000-54023)).
  3.4    Twelfth Amended and Restated Agreement of Limited Partnership of Digital Realty Trust, L.P.
  4.1    Specimen Certificate for Common Stock for Digital Realty Trust, Inc. (incorporated by reference to Exhibit 4.1 to Digital Realty Trust, Inc.’s Registration Statement on Form S-11 (Registration No. 333-117865) filed on October 26, 2004).
  4.2    Specimen Certificate for Series D Preferred Stock of Digital Realty Trust, Inc. (incorporated by reference to Exhibit 4.1 to Digital Realty Trust, Inc.’s Current Report on Form 8-K filed on February 11, 2008).
  4.3    Specimen Certificate for Digital Realty Trust, Inc.’s 7.000% Series E Cumulative Redeemable Preferred Stock (incorporated by reference to Digital Realty Trust Inc.’s Registration Statement on Form 8-A filed on September 12, 2011).
  4.4    Specimen Certificate for Digital Realty Trust, Inc.’s 6.625% Series F Cumulative Redeemable Preferred Stock (incorporated by reference to Digital Realty Trust Inc.’s Registration Statement on Form 8-A filed on March 30, 2012).
  4.5    Registration Rights Agreement, dated as of October 27, 2004, by and among Digital Realty Trust, Inc., Digital Realty Trust, L.P. and the Unit Holders, as defined therein (incorporated by reference to Exhibit 10.2 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on December 13, 2004).
  4.6    Indenture, dated as of April 20, 2009, among Digital Realty Trust, L.P., as issuer, Digital Realty Trust, Inc., as guarantor, and Wells Fargo Bank, National Association, as trustee, including the form of 5.50% Exchangeable Senior Debentures due 2029 (incorporated by reference to Exhibit 4.1 to Digital Realty Trust, Inc.’s Current Report on Form 8-K filed on April 22, 2009).
  4.7    Registration Rights Agreement, dated April 20, 2009, among Digital Realty Trust, L.P., Digital Realty Trust, Inc. and Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc. and Credit Suisse Securities (USA) LLC (incorporated by reference to Exhibit 10.1 to Digital Realty Trust, Inc.’s Current Report on Form 8-K filed on April 22, 2009).

 

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Exhibit

Number

  

Description

  4.8    Indenture, dated as of January 28, 2010, among Digital Realty Trust, L.P., as issuer, Digital Realty Trust, Inc., as guarantor, and Wilmington Trust FSB, as trustee, including the form of 5.875% Notes due 2020 (incorporated by reference to Exhibit 4.1 to Digital Realty Trust, Inc.’s Current Report on Form 8-K filed on January 29, 2010).
  4.9    Indenture, dated as of July 8, 2010, among Digital Realty Trust, L.P., as issuer, Digital Realty Trust, Inc., as guarantor, and Deutsche Bank Trust Company Americas, as trustee, including the form of 4.50% Notes due 2015 (incorporated by reference to Exhibit 4.1 to Digital Realty Trust, Inc.’s Current Report on Form 8-K filed on July 12, 2010).
  4.10    Indenture, dated as of March 8, 2011, among Digital Realty Trust, L.P., as issuer, Digital Realty Trust, Inc., as guarantor, and Deutsche Bank Trust Company Americas, as trustee (incorporated by reference to Exhibit 4.1 to the Combined Current Report on Form 8-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on March 8, 2011).
  4.11    Supplemental Indenture No. 1, dated as of March 8, 2011, among Digital Realty Trust, L.P., as issuer, Digital Realty Trust, Inc., as guarantor, and Deutsche Bank Trust Company Americas, as trustee, including the form of 5.250% Notes due 2021 and the guarantee (incorporated by reference to Exhibit 4.2 to the Combined Current Report on Form 8-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on March 8, 2011).
  4.12    Indenture, dated as of September 24, 2012, among Digital Realty Trust, L.P., as issuer, Digital Realty Trust, Inc., as guarantor, and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 4.1 to the Combined Current Report on Form 8-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on September 24, 2012).
  4.13    Supplemental Indenture No. 1, dated as of September 24, 2012, among Digital Realty Trust, L.P., as issuer, Digital Realty Trust, Inc., as guarantor, and Wells Fargo Bank, National Association, as trustee, including the form of 3.625% Notes due 2022 and the guarantee (incorporated by reference to Exhibit 4.2 to the Combined Current Report on Form 8-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on September 24, 2012).
  4.14    Indenture, dated as of January 18, 2013, among Digital Stout Holding, LLC, Digital Realty Trust, Inc., Digital Realty Trust, L.P., Deutsche Trustee Company Limited, as trustee, Deutsche Bank AG, London Branch, as paying agent and a transfer agent, and Deutsche Bank Luxembourg S.A., as registrar and a transfer agent, including the form of the 4.250% Guaranteed Notes due 2025 (incorporated by reference to Exhibit 4.1 to the Combined Current Report on Form 8-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on January 1, 2013).
  4.15    Specimen Certificate for Digital Realty Trust, Inc.’s 5.875% Series G Cumulative Redeemable Preferred Stock (incorporated by reference to Digital Realty Trust, Inc.’s Registration Statement on Form 8-A filed on April 4, 2013).
10.1†    Form of Indemnification Agreement by and between Digital Realty Trust, Inc. and its directors and officers (incorporated by reference to Exhibit 10.4 to Digital Realty Trust, Inc.’s Registration Statement on Form S-11 (Registration No. 333-117865) filed on October 13, 2004).
10.2      Contribution Agreement, dated as of July 31, 2004, by and among Digital Realty Trust, L.P., San Francisco Wave eXchange, LLC, Santa Clara Wave eXchange, LLC and eXchange colocation, LLC (incorporated by reference to Exhibit 10.12 to Digital Realty Trust, Inc.’s Registration Statement on Form S-11 (Registration No. 333-117865) filed on September 17, 2004).
10.3†    Form of Profits Interest Units Agreement (incorporated by reference to Exhibit 10.44 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on December 13, 2004).

 

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Exhibit

Number

  

Description

10.4†    Form of Digital Realty Trust, Inc. Incentive Stock Option Agreement (incorporated by reference to Exhibit 10.45 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on December 13, 2004).
10.5†    Form of Class C Profits Interest Units Agreement (incorporated by reference to Exhibit 10.1 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on August 9, 2007).
10.6†    First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan (incorporated by reference to Appendix A to Digital Realty Trust, Inc.’s definitive proxy statement on Schedule 14A filed on March 30, 2007).
10.7†    Form of 2008 Performance-Based Profits Interest Units Agreement (incorporated by reference to Exhibit 10.3 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on May 9, 2008).
10.8†    First Amendment to First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan (incorporated by reference to Exhibit 10.4 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on May 9, 2008).
10.9    Amended and Restated Note Purchase and Private Shelf Agreement, dated as of November 3, 2011, among Digital Realty Trust, L.P., Digital Realty Trust, Inc., the subsidiary guarantors named therein, Prudential Investment Management, Inc. and the Prudential Affiliates named therein (incorporated by reference to Exhibit 10.12 to the Combined Annual Report on Form 10-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on February 27, 2012).
10.10†    Employment Agreement among Digital Realty Trust, Inc., DLR, LLC and Michael F. Foust (incorporated by reference to Exhibit 10.1 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on November 10, 2008).
10.11†    Employment Agreement among Digital Realty Trust, Inc., DLR, LLC and A. William Stein (incorporated by reference to Exhibit 10.3 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on November 10, 2008).
10.12†    Form of Amendment to Employment Agreement (incorporated by reference to Exhibit 10.44 to Digital Realty Trust, Inc.’s Annual Report on Form 10-K filed on March 2, 2009).
10.13†    Amended and Restated Employment Agreement among Digital Realty Trust, Inc., DLR, LLC and Scott E. Peterson (incorporated by reference to Exhibit 10.45 to Digital Realty Trust, Inc.’s Annual Report on Form 10-K filed on March 2, 2009).
10.14†    First Amendment to Employment Agreement among Digital Realty Trust, Inc., DLR, LLC and Michael F. Foust (incorporated by reference to Exhibit 10.46 to Digital Realty Trust, Inc.’s Annual Report on Form 10-K filed on March 2, 2009).
10.15†    Second Amendment to First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan (incorporated by reference to Exhibit 10.4 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on August 6, 2009).
10.16†    Third Amendment to First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan (incorporated by reference to Exhibit 10.1 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on November 9, 2009).
10.17†    Second Amendment to Employment Agreement, dated as of June 9, 2010, among Digital Realty Trust, Inc., DLR, LLC and A. William Stein (incorporated by reference to Exhibit 10.21 to Digital Realty Trust, L.P.’s General Form for Registration of Securities on Form 10 filed on August 4, 2010 (File No. 000-54023)).

 

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Exhibit

Number

  

Description

10.18†    Third Amendment to Employment Agreement, dated as of November 12, 2010, among Digital Realty Trust, Inc., DLR, LLC and A. William Stein (incorporated by reference to Exhibit 10.29 to the Combined Annual Report on Form 10-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on February 25, 2011).
10.19†    Employment Agreement, dated July 30, 2004, among Digital Realty Trust, Inc., Digital Realty Trust, L.P. and David J. Caron (incorporated by reference to Exhibit 10.1 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on May 9, 2011).
10.20†    First Amendment to Employment Agreement, dated December 4, 2008, among Digital Realty Trust, Inc., Digital Realty Trust, L.P. and David J. Caron (incorporated by reference to Exhibit 10.2 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on May 9, 2011).
10.21†    First Amendment to Class C Profits Interest Units Agreement dated as of July 25, 2011 by and between Digital Realty Trust, Inc., Digital Realty Trust, L.P. and Richard A. Magnuson (incorporated by reference to Exhibit 10.2 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on November 7, 2011).
10.22†    First Amendment to Incentive Stock Option Agreement dated as of July 25, 2011 by and between Digital Realty Trust, Inc. and Richard A. Magnuson (incorporated by reference to Exhibit 10.2 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on November 7, 2011).
10.23†    Director Compensation Program (incorporated by reference to Exhibit 10.2 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on November 7, 2011).
10.24†    Director Compensation Program (incorporated by reference to Exhibit 10.2 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on August 7, 2012).
10.25†    Fourth Amendment to First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan (incorporated by reference to Exhibit 10.1 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on August 7, 2012).
10.26*    Term Loan Agreement, dated as of April 16, 2012, among Digital Realty Trust, L.P., Digital Realty Datafirm, LLC, Digital Luxembourg III S.à r.l., Digital Realty (Redhill) S.à r.l., Digital Realty (Blanchardstown) Limited, Digital Realty (Paris 2) SCI, and Digital Singapore Jurong East Pte. Ltd, as borrowers, and Digital Realty Trust, Inc., as guarantor, the banks, financial institutions and other institutional lenders listed therein, as the initial lenders, Citibank, N.A., as administrative agent, JPMorgan Chase Bank, N.A. and Bank of America, N.A., as syndication agents, J.P. Morgan Securities LLC, Citigroup Global Markets Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers and joint book running managers, and Lloyds TSB Bank PLC, Royal Bank of Canada, Sumitomo Mitsui Banking Corporation, Suntrust Bank, U.S. Bank National Association, a national banking association, and Wells Fargo Bank, National Association, as co-documentation agents (incorporated by reference to Exhibit 10.1 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on May 7, 2012).

 

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Exhibit

Number

  

Description

10.27*    Amendment No. 1 to the Term Loan Agreement, dated as of August 15, 2013, among Digital Realty Trust, L.P., Digital Realty Datafirm, LLC, Digital Luxembourg II S.à r.l, Digital Luxembourg III S.à r.l., Digital Realty (Redhill) S.à r.l., Digital Realty (Blanchardstown) Limited, Digital Realty (Paris2) SCI, and Digital Singapore Jurong East Pte. Ltd, as borrowers, and Digital Realty Trust, Inc., as guarantor, the banks, financial institutions and other institutional lenders listed therein, as the lenders, and Citibank, N.A., as administrative agent (incorporated by reference to the Exhibit 10.2 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on November 12, 2013).
10.28    Amendment No. 2 to the Term Loan Agreement, dated as of December 11, 2013, among Digital Realty Trust, L.P., Digital Realty Datafirm, LLC, Digital Luxembourg II S.à r.l, Digital Luxembourg III S.à r.l., Digital Realty (Redhill) S.à r.l., Digital Realty (Blanchardstown) Limited, Digital Realty (Paris2) SCI, and Digital Singapore Jurong East Pte. Ltd, as borrowers, and Digital Realty Trust, Inc., as guarantor, the banks, financial institutions and other institutional lenders listed therein, as the lenders, and Citibank, N.A., as administrative agent.
10.29*    Global Senior Credit Agreement, dated as of August 15, 2013, among Digital Realty Trust, L.P. and the other initial borrowers named therein and additional borrowers party thereto, as borrowers, Digital Realty Trust, Inc., as parent guarantor, the subsidiary borrowers and guarantors named therein, Citibank, N.A., as administrative agent, Bank of America, N.A., and JPMorgan Chase Bank, N.A., as syndication agents, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and J.P. Morgan Securities LLC, as joint lead arrangers and joint book running managers, and the other agents and lenders named therein (incorporated by reference to the Exhibit 10.1 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on November 12, 2013).
10.30    Amendment No. 1 to the Global Senior Credit Agreement, dated as of December 11, 2013, among Digital Realty Trust, L.P. and the other initial borrowers named therein and additional borrowers party thereto, as borrowers, Digital Realty Trust, Inc., as parent guarantor, the subsidiary borrowers and guarantors named therein, Citibank, N.A., as administrative agent, Bank of America, N.A., and JPMorgan Chase Bank, N.A., as syndication agents, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and J.P. Morgan Securities LLC, as joint lead arrangers and joint book running managers, and the other agents and lenders named therein.
10.31    Amendment No. 1 to the Amended and Restated Note Purchase and Private Shelf Agreement, dated as of August 15, 2013, between Digital Realty Trust, L.P. and Prudential Investment Management, Inc. (incorporated by reference to the Exhibit 10.3 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on November 12, 2013).
10.32    Release of Guarantors, dated as of January 27, 2014 executed by Digital Realty Trust, L.P., Prudential Investment Management, Inc., and the other Purchasers party to the Amended and Restated Note Purchase and Private Shelf Agreement, dated as of November 3, 2011.
10.33†    Digital Realty Deferred Compensation Plan.
10.34†    Form of Class D Profits Interest Unit Agreement.
10.35†    Form of Performance-Based Restricted Stock Unit Agreement.
10.36†    Form of Time-Based Restricted Stock Unit Agreement.
10.37†    Employment Agreement, dated June 14, 2010, between Digital Investment Management Pte. Ltd. and Kris Kumar (incorporated by reference to Exhibit 10.23 to the Combined Annual Report on Form 10-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on February 28, 2013).
12.1    Statement of Computation of Ratios.
21.1    List of Subsidiaries of Digital Realty Trust, Inc.
21.2    List of Subsidiaries of Digital Realty Trust, L.P.

 

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Exhibit

Number

  

Description

  23.1    Consent of Independent Registered Public Accounting Firm.
  31.1    Rule 13a-14(a)/15d-14(a) Certifications of Chief Executive Officer for Digital Realty Trust, Inc.
  31.2    Rule 13a-14(a)/15d-14(a) Certifications of Chief Financial Officer for Digital Realty Trust, Inc.
  31.3    Rule 13a-14(a)/15d-14(a) Certifications of Chief Executive Officer for Digital Realty Trust, L.P.
  31.4    Rule 13a-14(a)/15d-14(a) Certifications of Chief Financial Officer for Digital Realty Trust, L.P.
  32.1    18 U.S.C. § 1350 Certifications of Chief Executive Officer for Digital Realty Trust, Inc.
  32.2    18 U.S.C. § 1350 Certifications of Chief Financial Officer for Digital Realty Trust, Inc.
  32.3    18 U.S.C. § 1350 Certifications of Chief Executive Officer for Digital Realty Trust, L.P.
  32.4    18 U.S.C. § 1350 Certifications of Chief Financial Officer for Digital Realty Trust, L.P.
101    The following financial statements from Digital Realty Trust, Inc.’s and Digital Realty Trust, L.P.’s Form 10-K for the year ended December 31, 2013, formatted in XBRL interactive data files: (i) Consolidated Balance Sheets as of December 31, 2013 and December 31, 2012; (ii) Consolidated Income Statements for each of the years in the three-year period ended December 31, 2013; (iii) Consolidated Statements of Equity and Comprehensive Income/Statements of Capital and Comprehensive Income for each of the years in the three-year period ended December 31, 2013; (iv) Consolidated Statements of Cash Flows for each of the years in the three-year period ended December 31, 2013; and (v) Notes to Consolidated Financial Statements.

 

 

Management contract or compensatory plan or arrangement.
* Portions of this exhibit have been omitted pursuant to a grant of confidential treatment and have been filed separately with the Securities and Exchange Commission.

 

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

D IGITAL R EALTY T RUST , I NC .

By:   /s/    M ICHAEL F. F OUST        
 

Michael F. Foust

Chief Executive Officer

Date: February 28, 2014

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael F. Foust, A. William Stein and Joshua A. Mills, and each of them, with full power to act without the other, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign this Form 10-K and any and all amendments thereto, and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

Signature

  

Title

 

Date

/ S /    D ENNIS E. S INGLETON        

Dennis E. Singleton

  

Chairman of the Board

  February 28, 2014

/ S /    M ICHAEL F. F OUST        

Michael F. Foust

  

Chief Executive Officer and
Director (Principal Executive Officer)

  February 28, 2014

/ S /    A. W ILLIAM S TEIN        

A. William Stein

  

Chief Financial Officer & Chief Investment Officer (Principal Financial Officer)

  February 28, 2014

/ S /    E DWARD F. S HAM        

Edward F. Sham

  

Sr. Vice President and Controller (Principal Accounting Officer)

  February 28, 2014

/ S /    L AURENCE A. C HAPMAN        

Laurence A. Chapman

  

Director

  February 28, 2014

/ S /    K ATHLEEN E ARLEY        

Kathleen Earley

  

Director

  February 28, 2014

 

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Signature

  

Title

 

Date

/ S /    R UANN F. E RNST        

Ruann F. Ernst, Ph.D.

  

Director

  February 28, 2014

/ S /    K EVIN J. K ENNEDY        

Kevin J. Kennedy

  

Director

  February 28, 2014

/ S /    W ILLIAM G. L APERCH        

William G. LaPerch

  

Director

  February 28, 2014

/ S /    R OBERT H. Z ERBST        

Robert H. Zerbst

  

Director

  February 28, 2014

 

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Index to Financial Statements

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

D IGITAL R EALTY T RUST , L.P.

By:

 

Digital Realty Trust, Inc.,

Its General Partner

By:   / S /    M ICHAEL F. F OUST        
 

Michael F. Foust

Chief Executive Officer

Date: February 28, 2014

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael F. Foust, A. William Stein and Joshua A. Mills, and each of them, with full power to act without the other, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign this Form 10-K and any and all amendments thereto, and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

Signature

  

Title

 

Date

/ S /    D ENNIS E. S INGLETON        

Dennis E. Singleton

  

Chairman of the Board

  February 28, 2014

/ S /    M ICHAEL F. F OUST        

Michael F. Foust

  

Chief Executive Officer and Director (Principal Executive Officer)

  February 28, 2014

/ S /    A. W ILLIAM S TEIN        

A. William Stein

  

Chief Financial Officer & Chief Investment Officer (Principal Financial Officer)

  February 28, 2014

/ S /    E DWARD F. S HAM        

Edward F. Sham

  

Sr. Vice President and Controller (Principal Accounting Officer)

  February 28, 2014

/ S /    L AURENCE A. C HAPMAN        

Laurence A. Chapman

  

Director

  February 28, 2014

 

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Signature

  

Title

 

Date

/ S /    K ATHLEEN E ARLEY        

Kathleen Earley

  

Director

  February 28, 2014

/ S /    R UANN F. E RNST        

Ruann F. Ernst, Ph.D.

  

Director

  February 28, 2014

/ S /    K EVIN J. K ENNEDY        

Kevin J. Kennedy

  

Director

  February 28, 2014

/ S /    W ILLIAM G. L APERCH        

William G. LaPerch

  

Director

  February 28, 2014

/ S /    R OBERT H. Z ERBST        

Robert H. Zerbst

  

Director

  February 28, 2014

 

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Index to Financial Statements

Exhibit Index

 

Exhibit

Number

  

Description

  2.1*    Share Sale and Purchase Agreement, dated June 26, 2012, relating to Sentrum Holdings Limited between Glen Moar Properties Limited, Abry Partners VI, LP, Abry Advanced Securities Fund, LP, Abry Advanced Securities Fund II, LP, Abry Investment Partnership, LP, Abry Senior Equity Co-Investment Fund, III LP and Abry Senior Equity III, LP, as Sellers, Digital Stout Holding, LLC, as Purchaser, Sentrum Holdings Limited, Sentrum Construction Management Limited and Digital Realty Trust, L.P., as Guarantor amended (incorporated by reference to Exhibit 2.1 to Amendment No. 1 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on December 21, 2012).
  3.1    Articles of Amendment and Restatement of Digital Realty Trust, Inc., as amended (incorporated by reference to Exhibit 3.1 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on May 8, 2013).
  3.2    Fourth Amended and Restated Bylaws of Digital Realty Trust, Inc. (incorporated by reference to Exhibit 3.1 to Digital Realty Trust, Inc.’s Current Report on Form 8-K filed on February 21, 2012).
  3.3    Certificate of Limited Partnership of Digital Realty Trust, L.P. (incorporated by reference to Exhibit 3.1 to Digital Realty Trust, L.P.’s General Form for Registration of Securities on Form 10 filed on June 25, 2010 (File No. 000-54023)).
  3.4    Twelfth Amended and Restated Agreement of Limited Partnership of Digital Realty Trust, L.P.
  4.1    Specimen Certificate for Common Stock for Digital Realty Trust, Inc. (incorporated by reference to Exhibit 4.1 to Digital Realty Trust, Inc.’s Registration Statement on Form S-11 (Registration No. 333-117865) filed on October 26, 2004).
  4.2    Specimen Certificate for Series D Preferred Stock of Digital Realty Trust, Inc. (incorporated by reference to Exhibit 4.1 to Digital Realty Trust, Inc.’s Current Report on Form 8-K filed on February 11, 2008).
  4.3    Specimen Certificate for Digital Realty Trust, Inc.’s 7.000% Series E Cumulative Redeemable Preferred Stock (incorporated by reference to Digital Realty Trust Inc.’s Registration Statement on Form 8-A filed on September 12, 2011).
  4.4    Specimen Certificate for Digital Realty Trust, Inc.’s 6.625% Series F Cumulative Redeemable Preferred Stock (incorporated by reference to Digital Realty Trust Inc.’s Registration Statement on Form 8-A filed on March 30, 2012).
  4.5    Registration Rights Agreement, dated as of October 27, 2004, by and among Digital Realty Trust, Inc., Digital Realty Trust, L.P. and the Unit Holders, as defined therein (incorporated by reference to Exhibit 10.2 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on December 13, 2004).
  4.6    Indenture, dated as of April 20, 2009, among Digital Realty Trust, L.P., as issuer, Digital Realty Trust, Inc., as guarantor, and Wells Fargo Bank, National Association, as trustee, including the form of 5.50% Exchangeable Senior Debentures due 2029 (incorporated by reference to Exhibit 4.1 to Digital Realty Trust, Inc.’s Current Report on Form 8-K filed on April 22, 2009).
  4.7    Registration Rights Agreement, dated April 20, 2009, among Digital Realty Trust, L.P., Digital Realty Trust, Inc. and Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc. and Credit Suisse Securities (USA) LLC (incorporated by reference to Exhibit 10.1 to Digital Realty Trust, Inc.’s Current Report on Form 8-K filed on April 22, 2009).

 

194


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Index to Financial Statements

Exhibit

Number

  

Description

  4.8    Indenture, dated as of January 28, 2010, among Digital Realty Trust, L.P., as issuer, Digital Realty Trust, Inc., as guarantor, and Wilmington Trust FSB, as trustee, including the form of 5.875% Notes due 2020 (incorporated by reference to Exhibit 4.1 to Digital Realty Trust, Inc.’s Current Report on Form 8-K filed on January 29, 2010).
  4.9    Indenture, dated as of July 8, 2010, among Digital Realty Trust, L.P., as issuer, Digital Realty Trust, Inc., as guarantor, and Deutsche Bank Trust Company Americas, as trustee, including the form of 4.50% Notes due 2015 (incorporated by reference to Exhibit 4.1 to Digital Realty Trust, Inc.’s Current Report on Form 8-K filed on July 12, 2010).
  4.10    Indenture, dated as of March 8, 2011, among Digital Realty Trust, L.P., as issuer, Digital Realty Trust, Inc., as guarantor, and Deutsche Bank Trust Company Americas, as trustee (incorporated by reference to Exhibit 4.1 to the Combined Current Report on Form 8-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on March 8, 2011).
  4.11    Supplemental Indenture No. 1, dated as of March 8, 2011, among Digital Realty Trust, L.P., as issuer, Digital Realty Trust, Inc., as guarantor, and Deutsche Bank Trust Company Americas, as trustee, including the form of 5.250% Notes due 2021 and the guarantee (incorporated by reference to Exhibit 4.2 to the Combined Current Report on Form 8-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on March 8, 2011).
  4.12    Indenture, dated as of September 24, 2012, among Digital Realty Trust, L.P., as issuer, Digital Realty Trust, Inc., as guarantor, and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 4.1 to the Combined Current Report on Form 8-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on September 24, 2012).
  4.13    Supplemental Indenture No. 1, dated as of September 24, 2012, among Digital Realty Trust, L.P., as issuer, Digital Realty Trust, Inc., as guarantor, and Wells Fargo Bank, National Association, as trustee, including the form of 3.625% Notes due 2022 and the guarantee (incorporated by reference to Exhibit 4.2 to the Combined Current Report on Form 8-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on September 24, 2012).
  4.14    Indenture, dated as of January 18, 2013, among Digital Stout Holding, LLC, Digital Realty Trust, Inc., Digital Realty Trust, L.P., Deutsche Trustee Company Limited, as trustee, Deutsche Bank AG, London Branch, as paying agent and a transfer agent, and Deutsche Bank Luxembourg S.A., as registrar and a transfer agent, including the form of the 4.250% Guaranteed Notes due 2025 (incorporated by reference to Exhibit 4.1 to the Combined Current Report on Form 8-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on January 1, 2013).
  4.15    Specimen Certificate for Digital Realty Trust, Inc.’s 5.875% Series G Cumulative Redeemable Preferred Stock (incorporated by reference to Digital Realty Trust, Inc.’s Registration Statement on Form 8-A filed on April 4, 2013).
10.1†    Form of Indemnification Agreement by and between Digital Realty Trust, Inc. and its directors and officers (incorporated by reference to Exhibit 10.4 to Digital Realty Trust, Inc.’s Registration Statement on Form S-11 (Registration No. 333-117865) filed on October 13, 2004).
10.2      Contribution Agreement, dated as of July 31, 2004, by and among Digital Realty Trust, L.P., San Francisco Wave eXchange, LLC, Santa Clara Wave eXchange, LLC and eXchange colocation, LLC (incorporated by reference to Exhibit 10.12 to Digital Realty Trust, Inc.’s Registration Statement on Form S-11 (Registration No. 333-117865) filed on September 17, 2004).
10.3†    Form of Profits Interest Units Agreement (incorporated by reference to Exhibit 10.44 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on December 13, 2004).

 

195


Table of Contents
Index to Financial Statements

Exhibit

Number

  

Description

10.4†    Form of Digital Realty Trust, Inc. Incentive Stock Option Agreement (incorporated by reference to Exhibit 10.45 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on December 13, 2004).
10.5†    Form of Class C Profits Interest Units Agreement (incorporated by reference to Exhibit 10.1 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on August 9, 2007).
10.6†    First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan (incorporated by reference to Appendix A to Digital Realty Trust, Inc.’s definitive proxy statement on Schedule 14A filed on March 30, 2007).
10.7†    Form of 2008 Performance-Based Profits Interest Units Agreement (incorporated by reference to Exhibit 10.3 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on May 9, 2008).
10.8†    First Amendment to First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan (incorporated by reference to Exhibit 10.4 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on May 9, 2008).
10.9    Amended and Restated Note Purchase and Private Shelf Agreement, dated as of November 3, 2011, among Digital Realty Trust, L.P., Digital Realty Trust, Inc., the subsidiary guarantors named therein, Prudential Investment Management, Inc. and the Prudential Affiliates named therein (incorporated by reference to Exhibit 10.12 to the Combined Annual Report on Form 10-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on February 27, 2012).
10.10†    Employment Agreement among Digital Realty Trust, Inc., DLR, LLC and Michael F. Foust (incorporated by reference to Exhibit 10.1 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on November 10, 2008).
10.11†    Employment Agreement among Digital Realty Trust, Inc., DLR, LLC and A. William Stein (incorporated by reference to Exhibit 10.3 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on November 10, 2008).
10.12†    Form of Amendment to Employment Agreement (incorporated by reference to Exhibit 10.44 to Digital Realty Trust, Inc.’s Annual Report on Form 10-K filed on March 2, 2009).
10.13†    Amended and Restated Employment Agreement among Digital Realty Trust, Inc., DLR, LLC and Scott E. Peterson (incorporated by reference to Exhibit 10.45 to Digital Realty Trust, Inc.’s Annual Report on Form 10-K filed on March 2, 2009).
10.14†    First Amendment to Employment Agreement among Digital Realty Trust, Inc., DLR, LLC and Michael F. Foust (incorporated by reference to Exhibit 10.46 to Digital Realty Trust, Inc.’s Annual Report on Form 10-K filed on March 2, 2009).
10.15†    Second Amendment to First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan (incorporated by reference to Exhibit 10.4 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on August 6, 2009).
10.16†    Third Amendment to First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan (incorporated by reference to Exhibit 10.1 to Digital Realty Trust, Inc.’s Quarterly Report on Form 10-Q filed on November 9, 2009).
10.17†    Second Amendment to Employment Agreement, dated as of June 9, 2010, among Digital Realty Trust, Inc., DLR, LLC and A. William Stein (incorporated by reference to Exhibit 10.21 to Digital Realty Trust, L.P.’s General Form for Registration of Securities on Form 10 filed on August 4, 2010 (File No. 000-54023)).

 

196


Table of Contents
Index to Financial Statements

Exhibit

Number

  

Description

10.18†    Third Amendment to Employment Agreement, dated as of November 12, 2010, among Digital Realty Trust, Inc., DLR, LLC and A. William Stein (incorporated by reference to Exhibit 10.29 to the Combined Annual Report on Form 10-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on February 25, 2011).
10.19†    Employment Agreement, dated July 30, 2004, among Digital Realty Trust, Inc., Digital Realty Trust, L.P. and David J. Caron (incorporated by reference to Exhibit 10.1 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on May 9, 2011).
10.20†    First Amendment to Employment Agreement, dated December 4, 2008, among Digital Realty Trust, Inc., Digital Realty Trust, L.P. and David J. Caron (incorporated by reference to Exhibit 10.2 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on May 9, 2011).
10.21†    First Amendment to Class C Profits Interest Units Agreement dated as of July 25, 2011 by and between Digital Realty Trust, Inc., Digital Realty Trust, L.P. and Richard A. Magnuson (incorporated by reference to Exhibit 10.2 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on November 7, 2011).
10.22†    First Amendment to Incentive Stock Option Agreement dated as of July 25, 2011 by and between Digital Realty Trust, Inc. and Richard A. Magnuson (incorporated by reference to Exhibit 10.2 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on November 7, 2011).
10.23†    Director Compensation Program (incorporated by reference to Exhibit 10.2 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on November 7, 2011).
10.24†    Director Compensation Program (incorporated by reference to Exhibit 10.2 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on August 7, 2012).
10.25†    Fourth Amendment to First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan (incorporated by reference to Exhibit 10.1 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on August 7, 2012).
10.26*    Term Loan Agreement, dated as of April 16, 2012, among Digital Realty Trust, L.P., Digital Realty Datafirm, LLC, Digital Luxembourg III S.à r.l., Digital Realty (Redhill) S.à r.l., Digital Realty (Blanchardstown) Limited, Digital Realty (Paris 2) SCI, and Digital Singapore Jurong East Pte. Ltd, as borrowers, and Digital Realty Trust, Inc., as guarantor, the banks, financial institutions and other institutional lenders listed therein, as the initial lenders, Citibank, N.A., as administrative agent, JPMorgan Chase Bank, N.A. and Bank of America, N.A., as syndication agents, J.P. Morgan Securities LLC, Citigroup Global Markets Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers and joint book running managers, and Lloyds TSB Bank PLC, Royal Bank of Canada, Sumitomo Mitsui Banking Corporation, Suntrust Bank, U.S. Bank National Association, a national banking association, and Wells Fargo Bank, National Association, as co-documentation agents (incorporated by reference to Exhibit 10.1 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on May 7, 2012).

 

197


Table of Contents
Index to Financial Statements

Exhibit

Number

  

Description

10.27*    Amendment No. 1 to the Term Loan Agreement, dated as of August 15, 2013, among Digital Realty Trust, L.P., Digital Realty Datafirm, LLC, Digital Luxembourg II S.à r.l, Digital Luxembourg III S.à r.l., Digital Realty (Redhill) S.à r.l., Digital Realty (Blanchardstown) Limited, Digital Realty (Paris2) SCI, and Digital Singapore Jurong East Pte. Ltd, as borrowers, and Digital Realty Trust, Inc., as guarantor, the banks, financial institutions and other institutional lenders listed therein, as the lenders, and Citibank, N.A., as administrative agent (incorporated by reference to the Exhibit 10.2 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on November 12, 2013).
10.28    Amendment No. 2 to the Term Loan Agreement, dated as of December 11, 2013, among Digital Realty Trust, L.P., Digital Realty Datafirm, LLC, Digital Luxembourg II S.à r.l, Digital Luxembourg III S.à r.l., Digital Realty (Redhill) S.à r.l., Digital Realty (Blanchardstown) Limited, Digital Realty (Paris2) SCI, and Digital Singapore Jurong East Pte. Ltd, as borrowers, and Digital Realty Trust, Inc., as guarantor, the banks, financial institutions and other institutional lenders listed therein, as the lenders, and Citibank, N.A., as administrative agent.
10.29*    Global Senior Credit Agreement, dated as of August 15, 2013, among Digital Realty Trust, L.P. and the other initial borrowers named therein and additional borrowers party thereto, as borrowers, Digital Realty Trust, Inc., as parent guarantor, the subsidiary borrowers and guarantors named therein, Citibank, N.A., as administrative agent, Bank of America, N.A., and JPMorgan Chase Bank, N.A., as syndication agents, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and J.P. Morgan Securities LLC, as joint lead arrangers and joint book running managers, and the other agents and lenders named therein (incorporated by reference to the Exhibit 10.1 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on November 12, 2013).
10.30    Amendment No. 1 to the Global Senior Credit Agreement, dated as of December 11, 2013, among Digital Realty Trust, L.P. and the other initial borrowers named therein and additional borrowers party thereto, as borrowers, Digital Realty Trust, Inc., as parent guarantor, the subsidiary borrowers and guarantors named therein, Citibank, N.A., as administrative agent, Bank of America, N.A., and JPMorgan Chase Bank, N.A., as syndication agents, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and J.P. Morgan Securities LLC, as joint lead arrangers and joint book running managers, and the other agents and lenders named therein.
10.31    Amendment No. 1 to the Amended and Restated Note Purchase and Private Shelf Agreement, dated as of August 15, 2013, between Digital Realty Trust, L.P. and Prudential Investment Management, Inc. (incorporated by reference to the Exhibit 10.3 to the Combined Quarterly Report on Form 10-Q of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on November 12, 2013).
10.32    Release of Guarantors, dated as of January 27, 2014 executed by Digital Realty Trust, L.P., Prudential Investment Management, Inc., and the other Purchasers party to the Amended and Restated Note Purchase and Private Shelf Agreement, dated as of November 3, 2011.
10.33†    Digital Realty Deferred Compensation Plan.
10.34†    Form of Class D Profits Interest Unit Agreement.
10.35†    Form of Performance-Based Restricted Stock Unit Agreement.
10.36†    Form of Time-Based Restricted Stock Unit Agreement.
10.37†    Employment Agreement, dated June 14, 2010, between Digital Investment Management Pte. Ltd. and Kris Kumar (incorporated by reference to Exhibit 10.23 to the Combined Annual Report on Form 10-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P. filed on February 28, 2013).
12.1    Statement of Computation of Ratios.
21.1    List of Subsidiaries of Digital Realty Trust, Inc.
21.2    List of Subsidiaries of Digital Realty Trust, L.P.

 

198


Table of Contents
Index to Financial Statements

Exhibit

Number

  

Description

  23.1    Consent of Independent Registered Public Accounting Firm.
  31.1    Rule 13a-14(a)/15d-14(a) Certifications of Chief Executive Officer for Digital Realty Trust, Inc.
  31.2    Rule 13a-14(a)/15d-14(a) Certifications of Chief Financial Officer for Digital Realty Trust, Inc.
  31.3    Rule 13a-14(a)/15d-14(a) Certifications of Chief Executive Officer for Digital Realty Trust, L.P.
  31.4    Rule 13a-14(a)/15d-14(a) Certifications of Chief Financial Officer for Digital Realty Trust, L.P.
  32.1    18 U.S.C. § 1350 Certifications of Chief Executive Officer for Digital Realty Trust, Inc.
  32.2    18 U.S.C. § 1350 Certifications of Chief Financial Officer for Digital Realty Trust, Inc.
  32.3    18 U.S.C. § 1350 Certifications of Chief Executive Officer for Digital Realty Trust, L.P.
  32.4    18 U.S.C. § 1350 Certifications of Chief Financial Officer for Digital Realty Trust, L.P.
101    The following financial statements from Digital Realty Trust, Inc.’s and Digital Realty Trust, L.P.’s Form 10-K for the year ended December 31, 2013, formatted in XBRL interactive data files: (i) Consolidated Balance Sheets as of December 31, 2013 and December 31, 2012; (ii) Consolidated Income Statements for each of the years in the three-year period ended December 31, 2013; (iii) Consolidated Statements of Equity and Comprehensive Income/Statements of Capital and Comprehensive Income for each of the years in the three-year period ended December 31, 2013; (iv) Consolidated Statements of Cash Flows for each of the years in the three-year period ended December 31, 2013; and (v) Notes to Consolidated Financial Statements.

 

 

Management contract or compensatory plan or arrangement.
* Portions of this exhibit have been omitted pursuant to a grant of confidential treatment and have been filed separately with the Securities and Exchange Commission.

 

199

Exhibit 3.4

TWELFTH AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

OF

DIGITAL REALTY TRUST, L.P.


TABLE OF CONTENTS

 

         Page  
ARTICLE 1. DEFINED TERMS      1   

Section 1.1

  Definitions      1   

Section 1.2

  Rules of Construction      24   
ARTICLE 2. ORGANIZATIONAL MATTERS      24   

Section 2.1

  Organization      24   

Section 2.2

  Name      24   

Section 2.3

  Registered Office and Agent; Principal Office      24   

Section 2.4

  Power of Attorney      25   

Section 2.5

  Term      26   
ARTICLE 3. PURPOSE      26   

Section 3.1

  Purpose and Business      26   

Section 3.2

  Powers      26   

Section 3.3

  Partnership Only for Purposes Specified      27   

Section 3.4

  Representations and Warranties by the Parties      27   

Section 3.5

  Certain ERISA Matters      29   
ARTICLE 4. CAPITAL CONTRIBUTIONS      30   

Section 4.1

  Capital Contributions of the Partners      30   

Section 4.2

  Loans by Third Parties      30   

Section 4.3

  Additional Funding and Capital Contributions      30   

Section 4.4

  Other Contribution Provisions      33   

Section 4.5

  Profit Interest Units      34   

Section 4.6

  No Preemptive Rights      37   
ARTICLE 5. DISTRIBUTIONS      37   

Section 5.1

  Requirement and Characterization of Distributions      37   

Section 5.2

  Distributions in Kind      38   

Section 5.3

  Distributions Upon Liquidation      38   

Section 5.4

  Distributions to Reflect Issuance of Additional Partnership Interests      38   
ARTICLE 6. ALLOCATIONS      39   

Section 6.1

  Timing and Amount of Allocations of Net Income and Net Loss      39   

Section 6.2

  General Allocations      39   

Section 6.3

  Additional Allocation Provisions      42   

Section 6.4

  Tax Allocations      44   

Section 6.5

  Special Allocations      45   

 

i


         Page  
ARTICLE 7. MANAGEMENT AND OPERATIONS OF BUSINESS    45  

Section 7.1

  Management      45   

Section 7.2

  Certificate of Limited Partnership      50   

Section 7.3

  Restrictions on General Partner’s Authority      50   

Section 7.4

  Reimbursement of the General Partner      52   

Section 7.5

  Outside Activities of the General Partner      53   

Section 7.6

  Contracts with Affiliates      54   

Section 7.7

  Indemnification      55   

Section 7.8

  Liability of the General Partner      58   

Section 7.9

  Other Matters Concerning the General Partner      59   

Section 7.10

  Title to Partnership Assets      59   

Section 7.11

  Reliance by Third Parties      60   
ARTICLE 8. RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS      60   

Section 8.1

  Limitation of Liability      60   

Section 8.2

  Management of Business      60   

Section 8.3

  Outside Activities of Limited Partners      61   

Section 8.4

  Return of Capital      61   

Section 8.5

  Rights of Limited Partners Relating to the Partnership      61   

Section 8.6

  Limited Partner Redemption Rights      62   

Section 8.7

  Conversion of Profits Interest Units      70   

Section 8.8

  Voting Rights of Profits Interest Units      73   
ARTICLE 9. BOOKS, RECORDS, ACCOUNTING AND REPORTS      74   

Section 9.1

  Records and Accounting      74   

Section 9.2

  Fiscal Year      74   

Section 9.3

  Reports      74   

Section 9.4

  Nondisclosure of Certain Information      75   
ARTICLE 10. TAX MATTERS      75   

Section 10.1

  Preparation of Tax Returns      75   

Section 10.2

  Tax Elections      75   

Section 10.3

  Tax Matters Partner      75   

Section 10.4

  Organizational Expenses      77   

Section 10.5

  Withholding      77   
ARTICLE 11. TRANSFERS AND WITHDRAWALS      77   

Section 11.1

  Transfer      77   

Section 11.2

  Transfer of General Partner’s Partnership Interest      78   

Section 11.3

  Limited Partners’ Rights to Transfer      79   

Section 11.4

  Substituted Limited Partners      81   

Section 11.5

  Assignees      82   

Section 11.6

  General Provisions      82   

 

ii


         Page  
ARTICLE 12. ADMISSION OF PARTNERS      84   

Section 12.1

  Admission of Successor General Partner      84   

Section 12.2

  Admission of Additional Limited Partners      85   

Section 12.3

  Amendment of Agreement and Certificate of Limited Partnership      85   

ARTICLE 13. DISSOLUTION AND LIQUIDATION

     86   

Section 13.1

  Dissolution      86   

Section 13.2

  Winding Up      87   

Section 13.3

  Capital Contribution Obligation      88   

Section 13.4

  Compliance with Timing Requirements of Regulations      88   

Section 13.5

  Deemed Distribution and Recontribution      88   

Section 13.6

  Rights of Limited Partners      89   

Section 13.7

  Notice of Dissolution      89   

Section 13.8

  Cancellation of Certificate of Limited Partnership      89   

Section 13.9

  Reasonable Time for Winding-Up      89   

Section 13.10

  Waiver of Partition      89   

ARTICLE 14. AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS

     90   

Section 14.1

  Amendments      90   

Section 14.2

  Action by the Partners      90   
ARTICLE 15. GENERAL PROVISIONS      91   

Section 15.1

  Addresses and Notice      91   

Section 15.2

  Titles and Captions      91   

Section 15.3

  Pronouns and Plurals      91   

Section 15.4

  Further Action      91   

Section 15.5

  Binding Effect      92   

Section 15.6

  Creditors      92   

Section 15.7

  Waiver      92   

Section 15.8

  Counterparts      92   

Section 15.9

  Applicable Law      92   

Section 15.10

  Invalidity of Provisions      92   

Section 15.11

  Entire Agreement      92   

Section 15.12

  No Rights as Stockholders      93   
ARTICLE 16. [Intentionally omitted]      93   
ARTICLE 17. [Intentionally omitted]      93   
ARTICLE 18. CLASS C PROFITS INTEREST UNITS      93   

Section 18.1

  Designation and Number      93   

Section 18.2

  Terms of Class C Units      93   

 

iii


         Page  
ARTICLE 19. CLASS D PROFITS INTEREST UNITS      95   

Section 19.1

  Designation and Number      95   

Section 19.2

  Terms of Class D Units      95   
ARTICLE 20. [Intentionally Omitted]      96   
ARTICLE 21. SERIES E PREFERRED UNITS      97   

Section 21.1

  Designation and Number      97   

Section 21.2

  Distributions      97   

Section 21.3

  Liquidation Proceeds      98   

Section 21.4

  Redemption      99   

Section 21.5

  Ranking      100   

Section 21.6

  Voting Rights      100   

Section 21.7

  Transfer Restrictions      100   

Section 21.8

  Conversion      101   

Section 21.9

  No Sinking Fund      101   
ARTICLE 22. SERIES F PREFERRED UNITS      101   

Section 22.1

  Designation and Number      101   

Section 22.2

  Distributions      101   

Section 22.3

  Liquidation Proceeds      103   

Section 22.4

  Redemption      103   

Section 22.5

  Ranking      105   

Section 22.6

  Voting Rights      105   

Section 22.7

  Transfer Restrictions      105   

Section 22.8

  Conversion      105   

Section 22.9

  No Sinking Fund      105   
ARTICLE 23. SERIES G PREFERRED UNITS      106   

Section 23.1

  Designation and Number      106   

Section 23.2

  Distributions      106   

Section 23.3

  Liquidation Proceeds      107   

Section 23.4

  Redemption      108   

Section 23.5

  Ranking      109   

Section 23.6

  Voting Rights      109   

Section 23.7

  Transfer Restrictions      109   

Section 23.8

  Conversion      110   

Section 23.9

  No Sinking Fund      110   

 

iv


TWELFTH AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

OF

DIGITAL REALTY TRUST, L.P.

THIS TWELFTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of Digital Realty Trust, L.P., dated as of February 11, 2014, is entered into by and among Digital Realty Trust, Inc., a Maryland corporation (the “ Company ”), as the General Partner and the Persons whose names are set forth on Exhibit A attached hereto, as the Limited Partners, together with any other Persons who become Partners in the Partnership as provided herein.

WHEREAS, the General Partner and the Limited Partners have entered into that certain Eleventh Amended and Restated Agreement of Limited Partnership of Digital Realty Trust, L.P., dated as of April 9, 2013 (the “ Eleventh Amended and Restated Partnership Agreement ”);

WHEREAS, pursuant to Sections 7.3.C(2) and 7.3.C(3) thereof, the Eleventh Amended and Restated Partnership Agreement may be amended by the General Partner to reflect the issuance of additional Partnership Interests pursuant to Sections 4.3 , 4.4 , 4.5 , 5.4 and 6.2.B thereof and to set forth or amend the designations, rights, powers, duties and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4 thereof; and

WHEREAS, the General Partner and the Partnership believe it is desirable and in the best interest of the Partnership to amend and restate the Eleventh Amended and Restated Partnership Agreement as set forth herein.

NOW, THEREFORE, pursuant to Sections 2.4 , 7.3.C(2) and 7.3.C(3) of the Eleventh Amended and Restated Partnership Agreement, the General Partner, on its own behalf and as attorney-in-fact for the Limited Partners, hereby amends and restates the Eleventh Amended and Restated Partnership Agreement as follows:

ARTICLE 1.

DEFINED TERMS

Section 1.1 Definitions.

The following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in this Agreement.

Act ” means the Maryland Revised Uniform Limited Partnership Act, as it may be amended from time to time, and any successor to such statute.


Additional Funds ” shall have the meaning set forth in Section 4.3.A .

Additional Limited Partner ” means a Person admitted to the Partnership as a Limited Partner pursuant to Section 12.2 and who is shown as such on the books and records of the Partnership.

Adjusted Capital Account Deficit ” means, with respect to any Partner, the deficit balance, if any, in such Partner’s Capital Account as of the end of the relevant fiscal year, after giving effect to the following adjustments:

 

  (i) decrease such deficit by any amounts which such Partner is obligated to restore pursuant to this Agreement or is deemed to be obligated to restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c) or the penultimate sentence of each of Regulations Sections 1.704-2(i)(5) and 1.704-2(g); and

 

  (ii) increase such deficit by the items described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).

The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith. A positive balance in a Partner’s Capital Account, after giving effect to the adjustments described above in clauses (i) and (ii), is referred to in this Agreement as an “Adjusted Capital Account Balance.”

Adjusted Net Income ” means for each fiscal year of the Partnership, an amount equal to the Partnership’s Net Income or Net Loss for such fiscal year, computed without regard to the items set forth below, provided if the Adjusted Net Income for such fiscal year is a negative number (i.e., a net loss), then the Adjusted Net Income for that fiscal year shall be treated as if it was zero:

(a) Depreciation; and

(b) Net capital gain or loss realized in connection with the actual or hypothetical sale of all or substantially all of the assets of the Partnership, including but not limited to net capital gain or loss treated as realized in connection with an adjustment to the Gross Asset Value of the Partnership’s assets as set forth in the definition of such term.

Adjustment Date ” means, with respect to any Capital Contribution, the close of business on the Business Day last preceding the date of the Capital Contribution, provided , that if such Capital Contribution is being made by the General Partner in respect of the proceeds from the issuance of REIT Shares (or the issuance of the General Partner’s securities exercisable for, convertible into or exchangeable for REIT Shares), then the Adjustment Date shall be as of the close of business on the Business Day last preceding the date of the issuance of such securities.

 

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Adjustment Event ” shall have the meaning set forth in Section 4.5.A .

Affiliate ” means, with respect to any Person, any Person directly or indirectly controlling, controlled by or under common control with such Person. “Control” of any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

Agreed Value ” means (i) in the case of any Contributed Property set forth in Exhibit A and as of the time of its contribution to the Partnership, the Agreed Value of such property as set forth in Exhibit A ; (ii) in the case of any Contributed Property not set forth in Exhibit A and as of the time of its contribution to the Partnership, the fair market value of such property or other consideration as determined by the General Partner, reduced by any liabilities either assumed by the Partnership upon such contribution or to which such property is subject when contributed; and (iii) in the case of any property distributed to a Partner by the Partnership, the fair market value of such property as determined by the General Partner at the time such property is distributed, reduced by any liabilities either assumed by such Partner upon such distribution or to which such property is subject at the time of the distribution as determined under Section 752 of the Code and the Regulations thereunder.

Agreement ” means this Twelfth Amended and Restated Agreement of Limited Partnership, as it may be amended, modified, supplemented or restated from time to time.

Appraisal ” means with respect to any assets, the opinion of an independent third party experienced in the valuation of similar assets, selected by the General Partner in good faith; such opinion may be in the form of an opinion by such independent third party that the value for such property or asset as set by the General Partner is fair, from a financial point of view, to the Partnership.

Assignee ” means a Person to whom one or more Common-Equivalent Units have been transferred in a manner permitted under this Agreement, but who has not become a Substituted Limited Partner, and who has the rights set forth in Section 11.5 .

Available Cash ” means, with respect to any period for which such calculation is being made,

 

  (i) the sum of:

a. the Partnership’s Net Income or Net Loss (as the case may be) for such period,

b. Depreciation and all other noncash charges deducted in determining Net Income or Net Loss for such period,

 

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c. the amount of any reduction in reserves of the Partnership referred to in clause (ii)(f) below (including, without limitation, reductions resulting because the General Partner determines such amounts are no longer necessary),

d. the excess of the net proceeds from the sale, exchange, disposition, or refinancing of Partnership property for such period over the gain (or loss, as the case may be) recognized from any such sale, exchange, disposition, or refinancing during such period (excluding any sale or other disposition of all or substantially all of the assets of the Partnership or a related series of transactions that, taken together, result in the sale or other disposition of all or substantially all of the assets of the Partnership), and

e. all other cash received by the Partnership for such period that was not included in determining Net Income or Net Loss for such period;

 

  (ii) less the sum of:

a. all principal Debt payments made during such period by the Partnership,

b. capital expenditures made by the Partnership during such period,

c. investments in any entity (including loans made thereto) to the extent that such investments are not otherwise described in clauses (ii)(a) or (b),

d. all other expenditures and payments not deducted in determining Net Income or Net Loss for such period,

e. any amount included in determining Net Income or Net Loss for such period that was not received by the Partnership during such period,

f. the amount of any increase in reserves established during such period which the General Partner determines are necessary or appropriate in its sole and absolute discretion,

g. the amount of any working capital accounts and other cash or similar balances which the General Partner determines to be necessary or appropriate in its sole and absolute discretion, and

h. any amount paid in redemption of any Limited Partner Interest or Partnership Units, including any Cash Amount paid.

 

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Notwithstanding the foregoing, Available Cash shall not include any cash received or reductions in reserves, or take into account any disbursements made or reserves, established, after commencement of the dissolution and liquidation of the Partnership.

Base Amount ” shall have the meaning set forth in Section 8.6.C(2) .

Board of Directors ” means the board of directors of the General Partner.

Business Day ” means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to be closed.

Capital Account ” means, with respect to any Partner, the Capital Account maintained for such Partner in accordance with the following provisions:

(a) To each Partner’s Capital Account there shall be added such Partner’s Capital Contributions, such Partner’s share of Net Income and any items in the nature of income or gain which are specially allocated pursuant to Section 6.3 , and the amount of any Partnership liabilities assumed by such Partner or which are secured by any property distributed to such Partner.

(b) From each Partner’s Capital Account there shall be subtracted the amount of cash and the Gross Asset Value of any property distributed to such Partner pursuant to any provision of this Agreement, such Partner’s distributive share of Net Losses and any items in the nature of expenses or losses which are specially allocated pursuant to Section 6.3 , and the amount of any liabilities of such Partner assumed by the Partnership or which are secured by any property contributed by such Partner to the Partnership (except to the extent already reflected in the amount of such Partner’s Capital Contribution).

(c) In the event any interest in the Partnership is transferred in accordance with the terms of this Agreement (which does not result in a termination of the Partnership for federal income tax purposes), the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred interest.

(d) In determining the amount of any liability for purposes of subsections (a) and (b) hereof, there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and Regulations.

(e) The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Regulations Sections 1.704-1(b) and 1.704-2, and shall be interpreted and applied in a manner consistent with such Regulations. In the event the General Partner shall determine that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto (including, without limitation, debits or credits relating to liabilities which are secured by contributed or distributed property or which are assumed by the Partnership, the General Partner, or the Limited Partners)

 

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are computed in order to comply with such Regulations, the General Partner may make such modification, provided that it is not likely to have a material effect on the amounts distributable to any Person pursuant to Article 13 of this Agreement upon the dissolution of the Partnership. The General Partner also shall (i) make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Partners and the amount of Partnership capital reflected on the Partnership’s balance sheet, as computed for book purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(q), and (ii) make any appropriate modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Regulations Section 1.704-1(b), Section 1.704-2, Regulations Sections 1.704-1(b)(2)(iv)(h)(2) and (s).

Capital Account Limitation ” shall have the meaning set forth in Section 8.7.B .

Capital Contribution ” means, with respect to any Partner, the amount of money and the initial Gross Asset Value of any property (other than money) contributed to the Partnership by such Partner (net of any liabilities assumed by the Partnership relating to such property and any liability to which such property is subject).

Cash Amount ” means, with respect to any Common Units subject to a Redemption, an amount of cash equal to the Deemed Partnership Interest Value attributable to such Common Units.

Certificate ” means the Certificate of Limited Partnership relating to the Partnership filed in the office of the Maryland State Department of Assessments and Taxation on July 20, 2004, as amended from time to time in accordance with the terms hereof and the Act.

Charter ” means the Articles of Amendment and Restatement of the General Partner filed with the Maryland State Department of Assessments and Taxation on October 26, 2004, as amended and restated from time to time.

Class C Unitholder ” means a Partner that holds Class C Units issued pursuant to one or more Class C Units Agreements.

Class C Units ” shall have the meaning set forth in Section 18.1 .

Class C Units Agreement ” shall mean the applicable Class C Profits Interest Units Agreement between the Partnership and the applicable Class C Unitholder with respect to the Class C Units.

Class C Units Change in Control ” means, with respect to the Class C Units issued to a Partner pursuant to a Class C Units Agreement, a “Change in Control” as defined in that Class C Units Agreement.

 

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Class C Units Performance Condition ” means, with respect to the Class C Units issued to a Partner pursuant to a Class C Units Agreement, the Performance Condition as defined in that Class C Units Agreement.

Class D Unitholder ” means a Partner that holds Class D Units issued pursuant to one or more Class D Units Agreements.

Class D Unitholder Percentage Interest ” shall have the meaning set forth in Section 19.2.E.

Class D Units ” shall have the meaning set forth in Section 19.1 .

Class D Units Agreement ” shall mean the applicable Class D Profits Interest Units Agreement between the Partnership and the applicable Class D Unitholder with respect to the Class D Units.

Class D Units Change in Control ” means, with respect to the Class D Units issued to a Partner pursuant to a Class D Units Agreement, a “Change in Control” as defined in the Plan or a succesor plan adopted by the Company, as applicable.

Class D Performance Vested Units ” means, with respect to the Class D Units issued to a Partner pursuant to a Class D Units Agreement, the Performance Vested Units as defined in that Class D Units Agreement.

Class D Units Sharing Percentage ” means ten percent (10%).

Code ” means the Internal Revenue Code of 1986, as amended from time to time or any successor statute thereto. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of future law.

Common Unit Economic Balance ” shall have the meaning set forth in Section 6.2.C .

Common Units ” means Partnership Units that are not entitled to any preferences with respect to any other class or series of Partnership Units as to distribution or voluntary or involuntary liquidation, dissolution or winding-up of the Partnership and shall not include any Profits Interest Units.

Common-Equivalent Units ” means Partnership Units that are either Common Units or Profits Interest Units.

Consent ” means the consent to, approval of, or vote on a proposed action by a Partner given in accordance with Article 14 .

 

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Consent of the Limited Partners ” means the Consent of a Majority in Interest of the Limited Partners, which Consent shall be obtained prior to the taking of any action for which it is required by this Agreement and may be given or withheld by a Majority in Interest of the Limited Partners, unless otherwise expressly provided herein, in their sole and absolute discretion.

Consent of the Partners ” means the Consent of Holders of Common-Equivalent Units holding Percentage Interests that in the aggregate are equal to or greater than thirty-five percent (35%) of the aggregate Percentage Interests of all Holders of Common-Equivalent Units, which Consent shall be obtained prior to the taking of any action for which it is required by this Agreement and may be given or withheld by such Holders of Common-Equivalent Units, in their sole and absolute discretion.

Constituent Person ” shall have the meaning set forth in Section 8.7.F .

Constructively Own ” means ownership under the constructive ownership rules described in Exhibit C .

Contributed Property ” means each property or other asset, in such form as may be permitted by the Act, but excluding cash, contributed or deemed contributed to the Partnership (or, to the extent provided in applicable Regulations, deemed contributed to the Partnership on termination and reconstitution thereof pursuant to Section 708 of the Code).

Conversion Date ” shall have the meaning set forth in Section 8.7.B .

Conversion Notice ” shall have the meaning set forth in Section 8.7.B .

Conversion Right ” shall have the meaning set forth in Section 8.7.A .

Debt ” means, as to any Person, as of any date of determination, (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services; (ii) all amounts owed by such Person to banks or other Persons in respect of reimbursement obligations under letters of credit, surety bonds, guarantees and other similar instruments guaranteeing payment by such Person; (iii) all indebtedness for borrowed money or for the deferred purchase price of property or services secured by any lien on any property owned by such Person, to the extent attributable to such Person’s interest in such property, even though such Person has not assumed or become liable for the payment thereof; and (iv) lease obligations of such Person which, in accordance with generally accepted accounting principles, should be capitalized.

Deemed Partnership Interest Value ” means, as of any date with respect to any class of Partnership Interests, the Deemed Value of the Partnership Interests of such class multiplied by the applicable Percentage Interest of such class.

 

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Deemed Value of the Partnership Interests ” means, as of any date with respect to any class or series of Partnership Interests, (i) the total number of Partnership Units of the General Partner in such class or series of Partnership Interests (as provided for in Sections 4.1 and 4.3.B ) issued and outstanding as of the close of business on such date multiplied by the Fair Market Value determined as of such date of a share of capital stock of the General Partner which corresponds to such class or series of Partnership Interests, as adjusted (x) pursuant to Section 7.5 (in the event the General Partner acquires material assets, other than on behalf of the Partnership) and (y) for stock dividends and distributions, stock splits and subdivisions, reverse stock splits and combinations, distribution of warrants or options and distributions of evidences of indebtedness or assets not received by the General Partner pursuant to a pro rata distribution by the Partnership; (ii)  divided by the Percentage Interest of the General Partner in such class or series of Partnership Interests on such date; provided , that if no outstanding shares of capital stock of the General Partner correspond to a class of series of Partnership Interests, the Deemed Value of the Partnership Interests with respect to such class or series shall be equal to an amount reasonably determined by the General Partner.

Depreciation ” means, for each fiscal year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an asset for such year or other period, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such year or other period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided , however , that if the federal income tax depreciation, amortization or other cost recovery deduction for such year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the General Partner.

Distribution Payment Date ” means the dates upon which the General Partner makes distributions in accordance with Section 5.1 .

Distribution Period ” means the period from the day immediately following a Distribution Payment Date through the date that is the subsequent Distribution Payment Date.

Economic Capital Account Balance ” shall have the meaning set forth in Section 6.2.C .

Effective Date ” means November 3, 2004.

Eleventh Amended and Restated Partnership Agreement ” shall have the meaning set forth in the recitals.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

 

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Excess Units ” means Common Units that have been tendered for Redemption to the extent the issuance of REIT Shares in exchange for such units would violate the restrictions on ownership or transfer of the REIT Shares set forth in the Charter.

Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder and any successor statute thereto.

Fair Market Value ” means, with respect to any share of capital stock of the General Partner, the average of the daily market price for the ten (10) consecutive trading days immediately preceding the date with respect to which “Fair Market Value” must be determined hereunder or, if such date is not a Business Day, the immediately preceding Business Day. The market price for each such trading day shall be: (i) if such shares are listed or admitted to trading on any securities exchange, the closing price, regular way, on such day, or if no such sale takes place on such day, the average of the closing bid and asked prices on such day, (ii) if such shares are not listed or admitted to trading on any securities exchange, the last reported sale price on such day or, if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reliable quotation source designated by the General Partner, or (iii) if such shares are not listed or admitted to trading on any securities exchange and no such last reported sale price or closing bid and asked prices are available, the average of the reported high bid and low asked prices on such day, as reported by a reliable quotation source designated by the General Partner, or if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than ten (10) days prior to the date in question) for which prices have been so reported; provided that , if there are no bid and asked prices reported during the ten (10) days prior to the date in question, the Fair Market Value of such shares shall be determined by the General Partner acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate. In the event the REIT Shares Amount for such shares includes rights that a holder of such shares would be entitled to receive, then the Fair Market Value of such rights shall be determined by the General Partner acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate; and provided , further that , in connection with determining the Deemed Value of the Partnership Interests for purposes of determining the number of additional Partnership Units issuable upon a Capital Contribution funded by any offering of shares of capital stock of the General Partner by the General Partner, whether registered under the Securities Act or exempt from such registration, underwritten, offered and sold directly to investors or through agents or other intermediaries or otherwise distributed, the Fair Market Value of such shares shall be the gross offering price per share of such class of capital stock sold. Notwithstanding the foregoing, the General Partner in its reasonable discretion may use a different “Fair Market Value” for purposes of making the determinations under subparagraph (b) of the definition of “Gross Asset Value” and Section 4.3.D in connection with the contribution of property or cash to the Partnership by a third party, provided such value shall be based upon the value per REIT Share (or per Partnership Unit) agreed upon by the General Partner and such third party for purposes of such contribution.

 

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Notwithstanding the foregoing, the General Partner, in its reasonable discretion, may use the “Common Stock Price” as defined in the Series E Articles Supplementary, the Series F Articles Supplementary or Series G Articles Supplementary, as applicable (or such other price for the REIT Shares that was used to determine the number of REIT Shares issued upon the conversion of REIT Series E Preferred Shares, Series F Preferred Shares or Series G Preferred Shares, as applicable, into REIT Shares) for purposes of making the determinations under subparagraph (b) of the definition of “Gross Asset Value” in connection with the conversion of the Series E Preferred Units, Series F Preferred Units or Series G Preferred Units pursuant to Sections 21.8 , 22.8 and 23.8 , as applicable.

Forced Conversion ” shall have the meaning set forth in Section 8.7.C .

Forced Conversion Notice ” shall have the meaning set forth in Section 8.7.C .

General Partner ” means the Company or its successor as general partner of the Partnership.

General Partner Interest ” means a Partnership Interest held by the General Partner. A General Partner Interest may be expressed as a number of Partnership Units.

Gross Asset Value ” means, with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:

(a) The initial Gross Asset Value of any asset contributed by a Partner to the Partnership shall be the gross fair market value of such asset (subject to any adjustments required with respect to the conversion feature of the Series E Preferred Units, Series F Preferred Units, Series G Preferred Units and any other securities issued by the Company that are exercisable or convertible into Common Units, as determined by the General Partner in its sole discretion), as determined by the contributing Partner and the General Partner (as set forth on Exhibit A attached hereto, as such Exhibit may be amended from time to time); provided , that if the contributing Partner is the General Partner then, except with respect to the General Partner’s initial Capital Contribution which shall be determined as set forth on Exhibit A, the determination of the fair market value of the contributed asset shall be determined (i) by the price paid by the General Partner if the asset is acquired by the General Partner contemporaneously with its contribution to the Partnership, (ii) by Appraisal, if otherwise acquired by the General Partner, (iii) by the amount of cash if the asset is cash, and (iv) as reasonably determined by the General Partner if the asset is REIT Shares or other shares of capital stock of the Company.

(b) The Gross Asset Values of all Partnership assets shall be adjusted to equal their respective gross fair market values, as determined by the General Partner using such reasonable method of valuation as it may adopt, provided , however , that for such purpose, the net value of all of the Partnership assets, in the aggregate, shall be equal to the Deemed Value of the Partnership Interests of all classes of Partnership Interests then outstanding, regardless of the method of valuation adopted by the General Partner, immediately prior to the times listed below:

 

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  (i) the acquisition of an additional interest in the Partnership by a new or existing Partner in exchange for more than a de minimis Capital Contribution, if the General Partner reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Partners in the Partnership;

 

  (ii) the distribution by the Partnership to a Partner of more than a de minimis amount of Partnership property as consideration for an interest in the Partnership if the General Partner reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Partners in the Partnership;

 

  (iii) the liquidation of the Partnership within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g);

 

  (iv) in connection with the grant of an interest in the Partnership (other than a de minimis interest) as consideration for the performance of services to or for the benefit of the Partnership by an existing Partner acting in a capacity as a Partner of the Partnership or by a new Partner acting in a capacity as a Partner of the Partnership or in anticipation of being a Partner of the Partnership (including the grant of a Profits Interest Unit) if the General Partner reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Partners in the Partnership;

 

  (v) the issuance by the Partnership of a Noncompensatory Option which is not treated as a partnership interest pursuant to Regulations Section 1.761-3(a);

 

  (vi) the acquisition of a Partnership Interest upon the exercise of a Noncompensatory Option in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(s); and

 

  (vii) at such other times as the General Partner shall reasonably determine necessary or advisable in order to comply with Regulations Sections 1.704-1(b) and 1.704-2.

provided further , if any Noncompensatory Options are outstanding upon the occurrence of an event described in this paragraph (b)(i) through (b)(vi), the Partnership shall adjust the Gross Asset Values of its properties in accordance with Regulations Sections 1.704-1(b)(2)(iv)(f)(1) and 1.704-1(b)(2)(iv)(h)(2).

(c) The Gross Asset Value of any Partnership asset distributed to a Partner shall be the gross fair market value of such asset on the date of distribution as determined by the

 

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distributee and the General Partner, or if the distributee and the General Partner cannot agree on such a determination, by Appraisal.

(d) The Gross Asset Values of Partnership assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m); provided , however , that Gross Asset Values shall not be adjusted pursuant to this subparagraph (d) to the extent that the General Partner reasonably determines that an adjustment pursuant to subparagraph (b) is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (d).

(e) If the Gross Asset Value of a Partnership asset has been determined or adjusted pursuant to subparagraph (a), (b), (d) or (f), such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Net Income and Net Losses.

(f) If any unvested Profit Interest Units are forfeited, as described in Section 4.5.C(b) , upon such forfeiture, the Gross Asset Value of the Partnership’s assets shall be reduced by the amount of any reduction of such Partner’s Capital Account attributable to the forfeiture of such Profit Interest Units.

Holder ” means either the Partner or Assignee owning a Partnership Unit.

Immediate Family ” means, with respect to any natural Person, such natural Person’s estate or heirs or current spouse or former spouse, parents, parents-in-law, children (whether natural, adopted or by marriage), siblings and grandchildren and any trust or estate, all of the beneficiaries of which consist of such Person or such Person’s spouse, or former spouse, parents, parents-in-law, children, siblings or grandchildren.

Incapacity ” or “ Incapacitated ” means, (i) as to any individual Partner, death, total physical disability or entry by a court of competent jurisdiction adjudicating him or her incompetent to manage his or her Person or his or her estate; (ii) as to any corporation which is a Partner, the filing of a certificate of dissolution, or its equivalent, for the corporation or the revocation of its charter; (iii) as to any partnership which is a Partner, the dissolution and commencement of winding up of the partnership; (iv) as to any estate which is a Partner, the distribution by the fiduciary of the estate’s entire interest in the Partnership; (v) as to any trustee of a trust which is a Partner, the termination of the trust (but not the substitution of a new trustee); or (vi) as to any Partner, the bankruptcy of such Partner. For purposes of this definition, bankruptcy of a Partner shall be deemed to have occurred when (a) the Partner commences a voluntary proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or other similar law now or hereafter in effect, (b) the Partner is adjudged as bankrupt or insolvent, or a final and nonappealable order for relief under any bankruptcy, insolvency or

 

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similar law now or hereafter in effect has been entered against the Partner, (c) the Partner executes and delivers a general assignment for the benefit of the Partner’s creditors, (d) the Partner files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the Partner in any proceeding of the nature described in clause (b) above, (e) the Partner seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator for the Partner or for all or any substantial part of the Partner’s properties, (f) any proceeding seeking liquidation, reorganization or other relief of or against such Partner under any bankruptcy, insolvency or other similar law now or hereafter in effect has not been dismissed within 120 days after the commencement thereof, (g) the appointment without the Partner’s consent or acquiescence of a trustee, receiver or liquidator has not been vacated or stayed within 90 days of such appointment, or (h) an appointment referred to in clause (g) is not vacated within 90 days after the expiration of any such stay.

Indemnitee ” means (i) any Person subject to a claim or demand or made or threatened to be made a party to, or involved or threatened to be involved in, an action, suit or proceeding by reason of his or her status as (A) the General Partner or (B) a director or officer, employee or agent of the Partnership or the General Partner, and (ii) such other Persons (including Affiliates of the General Partner or the Partnership) as the General Partner may designate from time to time (whether before or after the event giving rise to potential liability), in its sole and absolute discretion.

IRS ” means the Internal Revenue Service, which administers the internal revenue laws of the United States.

Junior Units ” means Partnership Units representing any class or series of Partnership Interest ranking, as to distributions or voluntary or involuntary liquidation, dissolution or winding-up of the Partnership, junior to the Series E Preferred Units, the Series F Preferred Units or the Series G Preferred Units.

Limited Partner ” means any Person named as a Limited Partner in Exhibit A attached hereto, as such Exhibit may be amended from time to time, or any Substituted Limited Partner or Additional Limited Partner, in such Person’s capacity as a Limited Partner in the Partnership.

Limited Partner Interest ” means a Partnership Interest of a Limited Partner representing a fractional part of the Partnership Interests of all Limited Partners and includes any and all benefits to which the Holder of such a Partnership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. A Limited Partner Interest may be expressed as a number of Partnership Units.

Liquidating Event ” shall have the meaning set forth in Section 13.1 .

Liquidator ” shall have the meaning set forth in Section 13.2.A .

 

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Majority in Interest of the Limited Partners ” means Limited Partners (other than any Limited Partner fifty percent (50%) or more of whose equity is owned, directly or indirectly, by the General Partner) holding in the aggregate Percentage Interests that are greater than fifty percent (50%) of the aggregate Percentage Interests of all Limited Partners (other than any Limited Partner fifty percent (50%) or more of whose equity is owned, directly or indirectly, by the General Partner).

Net Income ” or “ Net Loss ” means for each fiscal year of the Partnership, an amount equal to the Partnership’s taxable income or loss for such fiscal year, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:

(a) Any income of the Partnership that is exempt from federal income tax and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition of Net Income or Net Loss shall be added to such taxable income or loss;

(b) Any expenditures of the Partnership described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition of Net Income or Net Loss shall be subtracted from such taxable income or loss;

(c) In the event the Gross Asset Value of any Partnership asset is adjusted pursuant to subparagraph (b) or subparagraph (c) of the definition of Gross Asset Value, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Income or Net Loss;

(d) Gain or loss resulting from any disposition of property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;

(e) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such fiscal year;

(f) To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Code Section 734(b) or Code Section 743(b) is required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Partner’s interest in the Partnership, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from

 

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the disposition of the asset and shall be taken into account for purposes of computing Net Income or Net Loss; and

(g) Notwithstanding any other provision of this definition of Net Income or Net Loss, any items which are specially allocated pursuant to Section 6.3 shall not be taken into account in computing Net Income or Net Loss. The amounts of the items of Partnership income, gain, loss, or deduction available to be specially allocated pursuant to Section 6.3 shall be determined by applying rules analogous to those set forth in this definition of Net Income or Net Loss.

Net Proceeds ” shall have the meaning set forth in Section 8.6.C(2) .

New Securities ” means (i) any rights, options, warrants or convertible or exchangeable securities having the right to subscribe for or purchase REIT Shares or other shares of capital stock of the General Partner, excluding in each case, grants under any Stock Plan, or (ii) any Debt issued by the General Partner that provides any of the rights described in clause (i).

Noncompensatory Option ” means a “noncompensatory option” within the meaning of Regulations Sections 1.721-2(f) and 1.761-3(b)(2). For purposes of clarification, the Series E Preferred Units, the Series F Preferred Units and the Series G Preferred Units shall be treated as Noncompensatory Options.

Nonrecourse Deductions ” shall have the meaning set forth in Regulations Section 1.704-2(b)(1), and the amount of Nonrecourse Deductions for a Partnership Year shall be determined in accordance with the rules of Regulations Section 1.704-2(c).

Nonrecourse Liability ” shall have the meaning set forth in Regulations Section 1.752-1(a)(2).

Notice of Redemption ” means the Notice of Redemption substantially in the form of Exhibit B to this Agreement.

Offered Shares ” shall have the meaning set forth in Section 8.6.C(1) .

Option Agreement ” means that certain option agreement by and between the Partnership and Global Innovation Partners, LLC, whereby such entity granted the Partnership an option to acquire the Option Interests.

Option Agreement Effective Date ” means the date the Partnership acquires an Option Interest pursuant to the Option Agreement in exchange for Common Units.

Option Interests ” means that certain property or interest in entities which own certain real property.

 

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Parity Preferred Unit ” means any class or series of Partnership Interests of the Partnership now or hereafter authorized, issued or outstanding expressly designated by the Partnership to rank on a parity with the Series E Preferred Units, the Series F Preferred Units and the Series G Preferred Units with respect to distributions or rights upon voluntary or involuntary liquidation, winding-up or dissolution of the Partnership, or both, as the context may require.

Partner ” means a General Partner or a Limited Partner, and “ Partners ” means the General Partner and the Limited Partners.

Partner Minimum Gain ” means an amount, with respect to each Partner Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if such Partner Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Regulations Section 1.704-2(i)(3).

Partner Nonrecourse Debt ” shall have the meaning set forth in Regulations Section 1.704-2(b)(4).

Partner Nonrecourse Deductions ” shall have the meaning set forth in Regulations Section 1.704-2(i)(2), and the amount of Partner Nonrecourse Deductions with respect to a Partner Nonrecourse Debt for a Partnership Year shall be determined in accordance with the rules of Regulations Section 1.704-2(i)(2).

Partnership ” means the limited partnership formed under the Act and pursuant to this Agreement, and any successor thereto.

Partnership Interest ” means an ownership interest in the Partnership of a Limited Partner or the General Partner and includes any and all benefits to which the Holder of such a Partnership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. There may be one or more classes or series of Partnership Interests as provided in Section 4.3 , 4.4 or 4.5 . A Partnership Interest may be expressed as a number of Partnership Units. Unless otherwise expressly provided for by the General Partner at the time of the original issuance of any Partnership Interests, all Partnership Interests (whether of a Limited Partner or a General Partner) shall be of the same class or series. The Partnership Interests represented by the Common Units, the Profits Interest Units, the Series E Preferred Units, the Series F Preferred Units and Series G Preferred Units are the only Partnership Interests and each such type of Unit is a separate class of Partnership Interest for all purposes of this Agreement.

Partnership Minimum Gain ” shall have the meaning set forth in Regulations Section 1.704-2(b)(2), and the amount of Partnership Minimum Gain, as well as any net increase or decrease in Partnership Minimum Gain, for a Partnership Year shall be determined in accordance with the rules of Regulations Section 1.704-2(d).

 

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Partnership Record Date ” means the record date established by the General Partner for the distribution of Available Cash pursuant to Section 5.1 , which record date shall be the same as the record date established by the General Partner for a distribution to its stockholders of some or all of its portion of such distribution.

Partnership Unit ” or “ Unit ” means, with respect to any class of Partnership Interest, a fractional, undivided share of such class of Partnership Interest issued pursuant to Sections 4.1 and 4.3 , 4.4 or 4.5 . The ownership of Partnership Units may be evidenced by a certificate for units substantially in the form of Exhibit D hereto or as the General Partner may determine with respect to any class of Partnership Units issued from time to time under Section 4.1 , 4.3 , 4.4 and 4.5 .

Partnership Year ” means the fiscal year of the Partnership, which shall be the calendar year.

Percentage Interest ” means, as to a Partner holding a class or series of Partnership Interests, its interest in such class or series as determined by dividing the Partnership Units of such class or series owned by such Partner by the total number of Partnership Units of such class then outstanding as specified in Exhibit A attached hereto, as such Exhibit may be amended from time to time. If the Partnership issues more than one class or series of Partnership Interests, the interest in the Partnership among the classes or series of Partnership Interests shall be determined as set forth in the amendment to the Partnership Agreement setting forth the rights and privileges of such additional classes or series of Partnership Interest, if any, as contemplated by Section 4.3.C .

Person ” means an individual or a corporation, partnership, limited liability company, trust, unincorporated organization, association or other entity.

Plan ” means the First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan, as amended.

Plan Asset Regulation ” means the regulations promulgated by the United States Department of Labor in Title 29, Code of Federal Regulations, Part 2510, Section 101.3, and any successor regulations thereto.

Pledge ” shall have the meaning set forth in Section 11.3.A .

Preferred Distribution Shortfall ” means, with respect to any Partnership Interests that are entitled to any preference in distributions of Available Cash pursuant to this Agreement, the aggregate amount of the required distributions for such outstanding Partnership Interests for all prior Distribution Periods minus the aggregate amount of the distributions made with respect to such outstanding Partnership Interests pursuant to this Agreement.

Pricing Agreements ” shall have the meaning set forth in Section 8.6.C(3)(b) .

 

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Primary Offering Notice ” shall have the meaning set forth in Section 8.6.F(4) .

Profits Interest Unitholder ” means a Partner that holds Profits Interest Units.

Profits Interest Units ” means long term incentive partnership units of the Partnership having the rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption and conversion set forth herein and in the Plan (including the Class C Units and Class D Units). Profits Interest Units can be issued in one or more classes, or one or more series of any such classes bearing such relationship to one another as to allocations, distributions, and other rights as the General Partner shall determine in its sole and absolute discretion subject to Maryland law.

Properties ” means such interests in real property and personal property including without limitation, fee interests, interests in ground leases, interests in joint ventures, interests in mortgages, and Debt instruments as the Partnership may hold from time to time.

Proposed Section 83 Safe Harbor Regulation ” shall have the meaning set forth in Section 4.5.D.

Qualified REIT Subsidiary ” means any Subsidiary of the General Partner that is a “qualified REIT subsidiary” within the meaning of Section 856(i) of the Code.

Qualified Transferee ” means an “Accredited Investor” as such term is defined in Rule 501 promulgated under the Securities Act.

Redemption ” shall have the meaning set forth in Section 8.6.A .

Regulations ” means the Income Tax Regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

Regulatory Allocations ” shall have the meaning set forth in Section 6.3.A(viii) .

REIT ” means a real estate investment trust, as defined under Sections 856 through 860 of the Code.

REIT Requirements ” shall have the meaning set forth in Section 5.1 .

REIT Series E Preferred Share ” means a share of 7.000% Series E Cumulative Redeemable Preferred Stock, par value $0.01 per share, liquidation preference $25 per share, of the General Partner, with such rights, priorities and preferences as shall be designated by the Board of Directors in accordance with the Charter.

 

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REIT Series F Preferred Share ” means a share of 6.625% Series F Cumulative Redeemable Preferred Stock, par value $0.01 per share, liquidation preference $25 per share, of the General Partner, with such rights, priorities and preferences as shall be designated by the Board of Directors in accordance with the Charter.

REIT Series G Preferred Share ” means a share of 5.875% Series G Cumulative Redeemable Preferred Stock, par value $0.01 per share, liquidation preference $25 per share, of the General Partner, with such rights, priorities and preferences as shall be designated by the Board of Directors in accordance with the Charter.

REIT Share ” means a share of common stock, par value $0.01 per share, of the General Partner.

REIT Share Market Value ” means, with respect to a REIT Share, the average of the daily market price for the ten (10) consecutive trading days immediately preceding the Specified Redemption Date. The market price for each such trading day shall be: (i) if the REIT Shares are listed or admitted to trading on any securities exchange, the closing price, regular way, on such day, or if no such sale takes place on such day, the average of the closing bid and asked prices on such day, in either case as reported in the principal consolidated transaction reporting system, (ii) if the REIT Shares are not listed or admitted to trading on any securities exchange, the last reported sale price on such day or, if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reliable quotation source designated by the Company, or (iii) if the REIT Shares are not listed or admitted to trading on any securities exchange and no such last reported sale price or closing bid and asked prices are available, the average of the reported high bid and low asked prices on such day, as reported by a reliable quotation source designated by the Company, or if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than ten (10) days prior to the date in question) for which prices have been so reported; provided that if there are no bid and asked prices reported during the ten (10) days prior to the date in question, the REIT Share Market Value of the REIT Share shall be determined by the Board of Directors of the Company acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate.

REIT Shares Amount ” means, as of any date, an aggregate number of REIT Shares equal to the number of Tendered Units, as adjusted (x) pursuant to Section 7.5 (in the event the General Partner acquires material assets, other than on behalf of the Partnership) and (y) for stock dividends and distributions, stock splits and subdivisions, reverse stock splits and combinations, distributions of rights, warrants or options, and distributions of evidences of indebtedness or assets relating to assets not received by the General Partner pursuant to a pro rata distribution by the Partnership.

 

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ROFO Agreement ” means those certain Right of First Offer Agreements by and between the Partnership and Global Innovation Partners, LLC, whereby Global Innovation Partners, LLC granted the Partnership the right to acquire the ROFO Interests.

ROFO Agreement Effective Date ” means the date the Partnership acquires the ROFO Interests pursuant to the respective ROFO Agreements in exchange for Common-Equivalent Units.

ROFO Interests ” means those certain properties or interests in entities which own certain real property described in the respective ROFO Agreements.

Section 83 Safe Harbor ” shall have the meaning set forth in Section 4.5.D.

Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder and any successor statute thereto.

Series E Articles Supplementary ” means the Articles Supplementary of the General Partner in connection with its REIT Series E Preferred Shares, as filed with the Maryland State Department of Assessments and Taxation on September 14, 2011.

Series E Preferred Capital ” means a Capital Account balance equal to the product of (i) the number of Series E Preferred Units then held by the General Partner multiplied by (ii) the sum of $25, any Preferred Distribution Shortfall per Series E Preferred Unit and any accrued and unpaid distribution per Series E Preferred Unit for the current Distribution Period.

Series E Preferred Unit Distribution Payment Date ” shall have the meaning set forth in Section 21.2.A .

Series E Preferred Units ” shall have the meaning set forth in Section 21.1 .

Series E Priority Return ” shall mean an amount equal to 7.000% per annum on the stated value of $25 per Series E Preferred Unit (equivalent to the fixed annual amount of $1.75 per Series E Preferred Unit), commencing on the date of original issuance of the Series E Preferred Units. For any partial quarterly period, the amount of the Series E Priority Return shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months.

Series F Articles Supplementary ” means the Articles Supplementary of the General Partner in connection with its REIT Series F Preferred Shares, as filed with the Maryland State Department of Assessments and Taxation on April 4, 2012.

Series F Preferred Capital ” means a Capital Account balance equal to the product of (i) the number of Series F Preferred Units then held by the General Partner multiplied

 

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by (ii) the sum of $25, any Preferred Distribution Shortfall per Series F Preferred Unit and any accrued and unpaid distribution per Series F Preferred Unit for the current Distribution Period.

Series F Preferred Unit Distribution Payment Date ” shall have the meaning set forth in Section 22.2.A .

Series F Preferred Units ” shall have the meaning set forth in Section 22.1 .

Series F Priority Return ” shall mean an amount equal to 6.625% per annum on the stated value of $25 per Series F Preferred Unit (equivalent to the fixed annual amount of $1.65625 per Series F Preferred Unit), commencing on the date of original issuance of the Series F Preferred Units. For any partial quarterly period, the amount of the Series F Priority Return shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months.

Series G Articles Supplementary ” means the Articles Supplementary of the General Partner in connection with its REIT Series G Preferred Shares, as filed with the Maryland State Department of Assessments and Taxation on April 8, 2013.

Series G Preferred Capital ” means a Capital Account balance equal to the product of (i) the number of Series G Preferred Units then held by the General Partner multiplied by (ii) the sum of $25, any Preferred Distribution Shortfall per Series G Preferred Unit and any accrued and unpaid distribution per Series G Preferred Unit for the current Distribution Period.

Series G Preferred Unit Distribution Payment Date ” shall have the meaning set forth in Section 23.2.A .

Series G Preferred Units ” shall have the meaning set forth in Section 23.1 .

Series G Priority Return ” shall mean an amount equal to 5.875% per annum on the stated value of $25 per Series G Preferred Unit (equivalent to the fixed annual amount of $1.46875 per Series G Preferred Unit), commencing on the date of original issuance of the Series G Preferred Units. For any partial quarterly period, the amount of the Series G Priority Return shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months.

Single Funding Notice ” shall have the meaning set forth in Section 8.6.C(1)(b) .

Specified Redemption Date ” means the day of receipt by the General Partner of a Notice of Redemption; provided that in the event the General Partner elects a Stock Offering Funding pursuant to Section 8.6.C , such Specified Redemption Date shall be deferred until the next Business Day following the date of the closing of the Stock Offering Funding.

Stock Offering Funding ” shall have the meaning set forth in Section 8.6.C(1)(a) .

 

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Stock Plan ” means any stock incentive, stock option, stock ownership or employee benefits plan of the General Partner.

Subsequent Redemption ” shall have the meaning set forth in Section 8.6.F(4) .

Subsidiary ” means, with respect to any Person, any corporation, partnership, limited liability company, joint venture or other entity of which a majority of (i) the voting power of the voting equity securities or (ii) the outstanding equity interests is owned, directly or indirectly, by such Person.

Subsidiary Partnership ” means any partnership or limited liability company that is a Subsidiary of the Partnership.

Substituted Limited Partner ” means a Person who is admitted as a Limited Partner to the Partnership pursuant to Section 11.4 .

Surviving Partnership ” shall have the meaning set forth in Section 11.2.B(2)(b) .

Tax Items ” shall have the meaning set forth in Section 6.4.A .

Tenant ” means any tenant from which the General Partner derives rent either directly or indirectly through partnerships, including the Partnership.

Tendered Units ” shall have the meaning set forth in Section 8.6.A .

Tendering Partner ” shall have the meaning set forth in Section 8.6.A .

Termination Transaction ” shall have the meaning set forth in Section 11.2.B .

Transaction ” shall have the meaning set forth in Section 8.7.F .

Twelve-Month Period ” means a twelve-month period ending on the first anniversary of the Effective Date or on each subsequent anniversary thereof.

Twelfth Amended and Restated Partnership Agreement ” shall have the meaning set forth in the recitals.

Unvested Profits Interest Units ” shall have the meaning set forth in Section 4.5.C(a) .

Vested Profits Interest Units ” shall have the meaning set forth in Section 4.5.C .

Vesting Agreement ” means each or any, as the context implies, vesting agreement entered into by a Profits Interest Unitholder upon acceptance of an award of Unvested Profits Interest Units under the Plan (as such agreement may be amended, modified or

 

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supplemented from time to time), including any Class C Units Agreements and Class D Units Agreements.

Withdrawing Partner ” shall have the meaning set forth in Section 8.6.C(3)(c) .

Section 1.2 Rules of Construction

Unless otherwise indicated, all references herein to “ REIT ,” “ REIT Requirements ,” “ REIT Shares ” and “ REIT Shares Amount ” with respect to the General Partner shall apply only with reference to the Company.

ARTICLE 2.

ORGANIZATIONAL MATTERS

Section 2.1 Organization

The Partnership is a limited partnership formed pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement. Except as expressly provided herein, the rights and obligations of the Partners and the administration and termination of the Partnership shall be governed by the Act. The Partnership Interest of each Partner shall be personal property for all purposes.

Section 2.2 Name

The name of the Partnership is Digital Realty Trust, L.P. The Partnership’s business may be conducted under any other name or names deemed advisable by the General Partner, including the name of the General Partner or any Affiliate thereof. The words “Limited Partnership,” “L.P.,” “Ltd.” or similar words or letters shall be included in the Partnership’s name where necessary for the purposes of complying with the laws of any jurisdiction that so requires. The General Partner in its sole and absolute discretion may change the name of the Partnership at any time and from time to time and shall notify the Limited Partners of such change in the next regular communication to the Limited Partners.

Section 2.3 Registered Office and Agent; Principal Office

The name and address of the registered office and registered agent of the Partnership in the State of Maryland is CSC-Lawyers Incorporating Service Company, 7 St. Paul Street, Suite 1660, Baltimore, MD 21202. The address of the principal office of the Partnership in the State of Maryland is c/o CSC-Lawyers Incorporating Service Company, 7 St. Paul Street, Suite 1660, Baltimore, MD 21202. The principal office of the Partnership is located at Four Embarcadero Center, Suite 3200, San Francisco, California 94111, or such other place as the General Partner may from time to time designate by notice to the other Partners. The Partnership may maintain offices at such other place or places within or outside the State of Maryland as the General Partner deems advisable.

 

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Section 2.4 Power of Attorney

A. Each Limited Partner and each Assignee constitutes and appoints the General Partner, any Liquidator, and authorized officers and attorneys-in-fact of each, and each of those acting singly, in each case with full power of substitution, as its true and lawful agent and attorney-in-fact, with full power and authority in its name, place and stead to:

(1) execute, swear to, acknowledge, deliver, file and record in the appropriate public offices (a) all certificates, documents and other instruments (including, without limitation, this Agreement and the Certificate and all amendments or restatements thereof) that the General Partner or the Liquidator deems appropriate or necessary to form, qualify or continue the existence or qualification of the Partnership as a limited partnership (or a partnership in which the Limited Partners have limited liability) in the State of Maryland and in all other jurisdictions in which the Partnership may conduct business or own property; (b) all instruments that the General Partner or any Liquidator deems appropriate or necessary to reflect any amendment, change, modification or restatement of this Agreement in accordance with its terms; (c) all conveyances and other instruments or documents that the General Partner or any Liquidator deems appropriate or necessary to reflect the dissolution and liquidation of the Partnership pursuant to the terms of this Agreement, including, without limitation, a certificate of cancellation; (d) all instruments relating to the admission, withdrawal, removal or substitution of any Partner pursuant to, or other events described in, Articles 11 , 12 or 13 or the Capital Contribution of any Partner; and (e) all certificates, documents and other instruments relating to the determination of the rights, preferences and privileges of Partnership Interests; and

(2) execute, swear to, acknowledge and file all ballots, consents, approvals, waivers, certificates and other instruments appropriate or necessary, in the sole and absolute discretion of the General Partner or any Liquidator, to make, evidence, give, confirm or ratify any vote, consent, approval, agreement or other action which is made or given by the Partners hereunder or is consistent with the terms of this Agreement or appropriate or necessary, in the sole discretion of the General Partner or any Liquidator, to effectuate the terms or intent of this Agreement.

Nothing contained herein shall be construed as authorizing the General Partner or any Liquidator to amend this Agreement except in accordance with Article 14 or as may be otherwise expressly provided for in this Agreement.

B. The foregoing power of attorney is hereby declared to be irrevocable and a power coupled with an interest, in recognition of the fact that each of the Partners will be relying upon the power of the General Partner and any Liquidator to act as contemplated by this Agreement in any filing or other action by it on behalf of the Partnership, and it shall survive and not be affected by the subsequent Incapacity of any Limited Partner or Assignee and the transfer of all or any portion of such Limited Partner’s or Assignee’s Common-Equivalent Units and shall extend to such Limited Partner’s or Assignee’s heirs, successors, assigns and personal

 

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representatives. Each such Limited Partner or Assignee hereby agrees to be bound by any representation made by the General Partner or any Liquidator, acting in good faith pursuant to such power of attorney; and each such Limited Partner or Assignee hereby waives any and all defenses which may be available to contest, negate or disaffirm the action of the General Partner or any Liquidator, taken in good faith under such power of attorney. Each Limited Partner or Assignee shall execute and deliver to the General Partner or any Liquidator, within 15 days after receipt of the General Partner’s or Liquidator’s request therefor, such further designation, powers of attorney and other instruments as the General Partner or the Liquidator, as the case may be, deems necessary to effectuate this Agreement and the purposes of the Partnership.

Section 2.5 Term

The term of the Partnership commenced on July 21, 2004 and shall continue until December 31, 2104 unless it is dissolved sooner pursuant to the provisions of Article 13 or as otherwise provided by law.

ARTICLE 3.

PURPOSE

Section 3.1 Purpose and Business

The purpose and nature of the business to be conducted by the Partnership is (i) to conduct any business that may be lawfully conducted by a limited partnership organized pursuant to the Act, (ii) to enter into any partnership, joint venture or other similar arrangement to engage in any business described in the foregoing clause (i) or to own interests in any entity engaged, directly or indirectly, in any such business and (iii) to do anything necessary or incidental to the foregoing; provided , however , that such business shall be limited to and conducted in such a manner as to permit the General Partner at all times to be classified as a REIT for federal income tax purposes, unless the General Partner ceases to qualify as a REIT for reasons other than the conduct of the business of the Partnership. In connection with the foregoing, and without limiting the General Partner’s right in its sole discretion to cease qualifying as a REIT, the Partners acknowledge that the General Partner’s current status as a REIT inures to the benefit of all the Partners and not solely the General Partner.

Section 3.2 Powers

The Partnership is empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of the purposes and business described herein and for the protection and benefit of the Partnership, including, without limitation, full power and authority, directly or through its ownership interest in other entities, to enter into, perform and carry out contracts of any kind, borrow money and issue evidences of indebtedness, whether or not secured by mortgage, deed of trust, pledge or other lien, acquire, own, manage, improve and develop real property, and lease, sell, transfer and dispose of real property; provided , however , notwithstanding anything to the

 

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contrary in this Agreement, the Partnership shall not, absent the consent of the General Partner, which may be given or withheld in its sole and absolute discretion, take, or refrain from taking, any action which, in the judgment of the General Partner, in its sole and absolute discretion, could (i) adversely affect the ability of the General Partner to continue to qualify as a REIT, (ii) subject the General Partner to any taxes under Section 857 or Section 4981 of the Code, or (iii) violate any law or regulation of any governmental body or agency having jurisdiction over the General Partner or its securities, unless any such action (or inaction) under (i), (ii) or (iii) shall have been specifically consented to by the General Partner in writing.

Section 3.3 Partnership Only for Purposes Specified

The Partnership shall be a partnership only for the purposes specified in Section 3.1 , and this Agreement shall not be deemed to create a partnership among the Partners with respect to any activities whatsoever other than the activities within the purposes of the Partnership as specified in Section 3.1 . Except as otherwise provided in this Agreement, no Partner shall have any authority to act for, bind, commit or assume any obligation or responsibility on behalf of the Partnership, its Properties or any other Partner. No Partner, in its capacity as a Partner under this Agreement, shall be responsible or liable for any indebtedness or obligation of another Partner, nor shall the Partnership be responsible or liable for any indebtedness or obligation of any Partner, incurred either before or after the execution and delivery of this Agreement by such Partner, except as to those responsibilities, liabilities, indebtedness or obligations incurred pursuant to and as limited by the terms of this Agreement and the Act.

Section 3.4 Representations and Warranties by the Parties

A. Each Partner that is an individual represents and warrants to each other Partner that (i) such Partner has the legal capacity to enter into this Agreement and perform such Partner’s obligations hereunder, (ii) the consummation of the transactions contemplated by this Agreement to be performed by such Partner will not result in a breach or violation of, or a default under, any agreement by which such Partner or any of such Partner’s property is or are bound, or any statute, regulation, order or other law to which such Partner is subject, (iii) such Partner is a “United States person” within the meaning of Section 7701(a)(30) of the Code, and (iv) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms.

B. Each Partner that is not an individual represents and warrants to each other Partner that (i) its execution and delivery of this Agreement and all transactions contemplated by this Agreement to be performed by it have been duly authorized by all necessary action, including without limitation, that of its general partner(s), member(s), committee(s), trustee(s), beneficiaries, directors and/or stockholder(s), as the case may be, as required, (ii) the consummation of such transactions shall not result in a breach or violation of, or a default under, its certificate of limited partnership, partnership agreement, trust agreement, limited liability

 

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company operating agreement, charter or bylaws, as the case may be, any agreement by which such Partner or any of such Partner’s properties or any of its partners, members, beneficiaries, trustees or stockholders, as the case may be, is or are bound, or any statute, regulation, order or other law to which such Partner or any of its partners, members, trustees, beneficiaries or stockholders, as the case may be, is or are subject, (iii) such Partner is a “United States person” within the meaning of Section 7701(a)(30) of the Code and (iv) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms.

C. Each Partner represents, warrants, and agrees that it has acquired and continues to hold its interest in the Partnership for its own account for investment only and not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof, nor with a view toward selling or otherwise distributing such interest or any part thereof at any particular time or under any predetermined circumstances. Each Partner further represents and warrants that it is a sophisticated investor, able and accustomed to handling sophisticated financial matters for itself, particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the funds it has invested in the Partnership in what it understands to be a highly speculative and illiquid investment. Each Partner represents, warrants and agrees that such Partner is an “accredited investor” (as such term is defined in Rule 501(a) of Regulation D under the Securities Act).

D. Each Partner acknowledges that (i) the Partnership Units (and any REIT Shares that might be exchanged therefor) have not been registered under the Securities Act and may not be transferred unless they are subsequently registered under the Securities Act or an exemption from such registration is available (it being understood that the Partnership has no intention of so registering the Partnership Units), (ii) a restrictive legend in the form set forth in Exhibit D shall be placed on the certificates representing the Partnership Units, and (iii) a notation shall be made in the appropriate records of the Partnership indicating that the Partnership Units are subject to restrictions on transfer.

E. Each Limited Partner further represents, warrants, covenants and agrees as follows:

(1) Except as provided in Exhibit E , at any time such Partner actually or Constructively Owns a 25% or greater capital interest or profits interest in the Partnership, it does not and will not, without the prior written consent of the General Partner, actually own or Constructively Own (a) with respect to any Tenant that is a corporation, any stock of such Tenant, and (b) with respect to any Tenant that is not a corporation, any interests in either the assets or net profits of such Tenant.

(2) Except as provided in Exhibit F , at any time such Partner actually or Constructively Owns a 25% or greater capital interest or profits interest in the Partnership, it does not, and agrees that it will not without the prior written consent of the General Partner, actually own or Constructively Own, any stock in the General Partner, other than any REIT

 

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Shares or other shares of capital stock of the General Partner such Partner may acquire (a) as a result of an exchange of Tendered Units pursuant to Section 8.6 or (b) upon the exercise of options granted or delivery of REIT Shares pursuant to any Stock Plan, in each case subject to the ownership limitations set forth in the General Partner’s Charter.

(3) Upon request of the General Partner, it will disclose to the General Partner the amount of REIT Shares or other shares of capital stock of the General Partner, or shares of capital stock or other interests in Tenants, that it actually owns or Constructively Owns.

(4) It understands that if, for any reason, (a) the representations, warranties or agreements set forth in E(1) or (2)  above are violated, or (b) the Partnership’s actual or Constructive Ownership of REIT Shares or other shares of capital stock of the General Partner violates the limitations set forth in the Charter, then (x) some or all of the Redemption rights of the Partners may become non-exercisable, and (y) some or all of the REIT Shares owned by the Partners may be automatically transferred to a trust for the benefit of a charitable beneficiary, as provided in the Charter.

(5) Without the consent of the General Partner, which may be given or withheld in its sole discretion, no Partner shall take any action that would cause (i) the Partnership at any time to have more than 100 partners, including as partners (“ flow through partners ”) those persons indirectly owning an interest in the Partnership through a partnership, limited liability company, S corporation or grantor trust (such entity, a “ flow through entity ”), but only if substantially all of the value of such person’s interest in the flow through entity is attributable to the flow through entity’s interest (direct or indirect) in the Partnership; or (ii) the Partnership Interest initially issued to such Partner or its predecessors to be held by more than seven (7) partners, including as partners any flow through partners.

F. The representations and warranties contained in this Section 3.4 shall survive the execution and delivery of this Agreement by each Partner and the dissolution and winding-up of the Partnership.

G. Each Partner hereby acknowledges that no representations as to potential profit, cash flows, funds from operations or yield, if any, in respect of the Partnership or the General Partner have been made by any Partner or any employee or representative or Affiliate of any Partner, and that projections and any other information, including, without limitation, financial and descriptive information and documentation, which may have been in any manner submitted to such Partner shall not constitute any representation or warranty of any kind or nature, express or implied.

Section 3.5 Certain ERISA Matters

Each Partner acknowledges that the Partnership is intended to qualify as a “real estate operating company” (as such term is defined in the Plan Asset Regulation). The General Partner may structure the investments in, relationships with and conduct with respect to

 

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Properties and any other assets of the Partnership so that the Partnership will be a “real estate operating company” (as such term is defined in the Plan Asset Regulation).

ARTICLE 4.

CAPITAL CONTRIBUTIONS

Section 4.1 Capital Contributions of the Partners

At the time of their respective execution of this Agreement, the Partners shall make or shall have made Capital Contributions as set forth in Exhibit A to this Agreement. The Partners shall own Partnership Units of the class or series and in the amounts set forth in Exhibit A and shall have a Percentage Interest in the Partnership as set forth in Exhibit A , which Percentage Interest shall be adjusted in Exhibit A from time to time by the General Partner to the extent necessary to reflect accurately exchanges, redemptions, Capital Contributions, the issuance of additional Partnership Units or similar events having an effect on a Partner’s Percentage Interest. Except as required by law, as otherwise provided in Sections 4.3 , 4.4 , 4.5 and 10.5 , or as otherwise agreed to by a Partner and the Partnership, no Partner shall be required or permitted to make any additional Capital Contributions or loans to the Partnership. Unless otherwise specified by the General Partner at the time of the creation of any class of Partnership Interests, the corresponding class or series of capital stock for any Partnership Units issued shall be REIT Shares.

Section 4.2 Loans by Third Parties

Subject to Section 4.3 , the Partnership may incur Debt, or enter into other similar credit, guarantee, financing or refinancing arrangements for any purpose (including, without limitation, in connection with any further acquisition of Properties) with any Person that is not the General Partner upon such terms as the General Partner determines appropriate; provided that , the Partnership shall not incur any Debt that is recourse to the General Partner, except to the extent otherwise agreed to by the General Partner in its sole discretion.

Section 4.3 Additional Funding and Capital Contributions

A. General . The General Partner may, at any time and from time to time determine that the Partnership requires additional funds (“ Additional Funds ”) for the acquisition of additional Properties or for such other Partnership purposes as the General Partner may determine. Additional Funds may be raised by the Partnership, at the election of the General Partner, in any manner provided in, and in accordance with, the terms of this Section 4.3 . No Person shall have any preemptive, preferential or similar right or rights to subscribe for or acquire any Partnership Interest, except as set forth in this Section 4.3 .

B. Issuance of Additional Partnership Interests . The General Partner, in its sole and absolute discretion, may raise all or any portion of the Additional Funds by accepting additional Capital Contributions of cash. The General Partner may also accept additional Capital

 

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Contributions of real property or any other non-cash assets. In connection with any such additional Capital Contributions (of cash or property), the General Partner is hereby authorized to cause the Partnership from time to time to issue to Partners (including the General Partner) or other Persons (including, without limitation, in connection with the contribution of tangible or intangible property, services, or other consideration permitted by the Act to the Partnership) additional Partnership Units or other Partnership Interests, which may be Common Units or other Partnership Units issued in one or more classes, or one or more series of any of such classes, with such designations, preferences and relative, participating, optional, conversion, exchange or other special rights, powers, and duties, including rights, powers, and duties senior to then existing Limited Partner Interests, all as shall be determined by the General Partner in its sole and absolute discretion subject to Maryland law, including without limitation, (i) the allocations of items of Partnership income, gain, loss, deduction, and credit to such class or series of Partnership Interests; (ii) the right of each such class or series of Partnership Interests to share in Partnership distributions; (iii) the rights of each such class or series of Partnership Interests upon dissolution and liquidation of the Partnership; and (iv) the right to vote, including, without limitation, the Limited Partner approval rights set forth in Section 11.2.A ; provided , that no such additional Partnership Units or other Partnership Interests shall be issued to the General Partner unless either (a) (1) the additional Partnership Interests are issued in connection with the grant, award, or issuance of shares of the General Partner pursuant to Section 4.3.C below, which shares have designations, preferences, and other rights (except voting rights) such that the economic interests attributable to such shares are substantially similar to the designations, preferences and other rights of the additional Partnership Interests issued to the General Partner in accordance with this Section 4.3.B , and (2) the General Partner shall make a Capital Contribution to the Partnership in an amount equal to any net proceeds raised in connection with such issuance, or (b) the additional Partnership Interests are issued to all Partners holding Partnership Interests in the same class in proportion to their respective Percentage Interests in such class or (c) the additional Partnership Interests are issued pursuant to a Stock Plan. The General Partner’s determination that consideration is adequate shall be conclusive insofar as the adequacy of consideration relates to whether the Partnership Interests are validly issued and paid. In the event that the Partnership issues additional Partnership Interests pursuant to this Section 4.3.B , the General Partner shall make such revisions to this Agreement (including but not limited to the revisions described in Section 5.4 , Section 6.2.B , and Section 8.6 ) as it determines are necessary to reflect the issuance of such additional Partnership Interests.

C. Issuance of REIT Shares or Other Securities by the General Partner . Except as provided in the next following paragraph of this Section 4.3C , the General Partner shall not issue any additional REIT Shares, other shares of capital stock of the General Partner or New Securities (other than REIT Shares issued pursuant to Section 8.6 or such shares, stock or securities pursuant to a dividend or distribution (including any stock split) to all of its stockholders or all of its stockholders who hold a particular class of stock of the General Partner), unless (i) the General Partner shall cause the Partnership to issue to the General Partner, Partnership Interests or rights, options, warrants or convertible or exchangeable securities of the Partnership having designations, preferences and other rights, all such that the economic interests

 

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thereof are substantially similar to those of the REIT Shares, other shares of capital stock of the General Partner or New Securities issued by the General Partner and (ii) the General Partner shall make a Capital Contribution of any net proceeds from the issuance of such additional REIT Shares, other shares of capital stock or New Securities, as the case may be, and from any exercise of the rights contained in such additional New Securities, as the case may be. Without limiting the foregoing, the General Partner is expressly authorized to issue REIT Shares, other shares of capital stock of the General Partner or New Securities for no tangible value or for less than fair market value, and the General Partner is expressly authorized to cause the Partnership to issue to the General Partner corresponding Partnership Interests, so long as (x) the General Partner concludes in good faith that such issuance of Partnership Interests is in the interests of the Partnership; and (y) the General Partner contributes all proceeds, if any, from such issuance and exercise to the Partnership.

In connection with the General Partner’s initial public offering of REIT Shares, any other issuance of REIT Shares, other capital stock of the General Partner or New Securities, the General Partner shall contribute to the Partnership, any net proceeds raised in connection with such issuance; provided , that the General Partner may use a portion of the net proceeds from any offering to acquire Partnership Units or other assets ( provided such other assets are contributed to the Partnership pursuant to the terms of this Agreement); and provided , further , that if the net proceeds actually received by the General Partner are less than the gross proceeds of such issuance as a result of any underwriter’s discount or other expenses paid or incurred in connection with such issuance then, except to the extent such net proceeds are used to acquire Partnership Units, the General Partner shall be deemed to have made a Capital Contribution to the Partnership in the amount equal to the sum of the net proceeds of such issuance plus the amount of such underwriter’s discount and other expenses paid by the General Partner (which discount and expense shall be treated as an expense for the benefit of the Partnership for purposes of Section 7.4 ). In the case of issuance of REIT Shares by the General Partner in any offering, whether registered under the Securities Act or exempt from such registration, underwritten, offered and sold directly to investors or through agents or other intermediaries, or otherwise distributed, for purposes of determining the number of additional Common Units issuable upon a Capital Contribution funded by the net proceeds thereof consistently with the immediately preceding sentence, any discount from the then current market price of REIT Shares shall be disregarded such that an equal number of Common Units can be issued to the General Partner as the number of REIT Shares sold by the General Partner in such offering, consistently with the determination of Partners’ Percentage Interests as provided in Section 4.3.D . In the case of issuances of REIT Shares, other capital stock of the General Partner or New Securities pursuant to any Stock Plan at a discount from fair market value or for no value, the amount of such discount representing compensation to the employee, as determined by the General Partner, shall be treated as an expense for the benefit of the Partnership for purposes of Section 7.4 and, as a result, the General Partner shall be deemed to have made a Capital Contribution to the Partnership in an amount equal to the sum of any net proceeds of such issuance plus the amount of such expense.

 

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D. Percentage Interest Adjustments in the Case of Capital Contributions for Partnership Units . Upon the acceptance of additional Capital Contributions in exchange for any class or series of Partnership Units, the Percentage Interest of each Partner in such class or series of Partnership Units shall be equal to a fraction, the numerator of which is equal to the sum of (i) the Deemed Partnership Interest Value of the Partnership Interest of such Partner in respect of such class or series (computed as of the Business Day immediately preceding the Adjustment Date) and (ii) the Agreed Value of additional Capital Contributions, if any, made by such Partner to the Partnership in such class or series of Partnership Interests as of such Adjustment Date, and the denominator of which is equal to the sum of (i) the Deemed Value of the Partnership Interests of such class or series (computed as of the Business Day immediately preceding the Adjustment Date), plus (ii) the aggregate Agreed Value of additional Capital Contributions contributed by all Partners and/or third parties to the Partnership on such Adjustment Date in such class or series. Provided , however , solely for purposes of calculating a Partner’s Percentage Interest pursuant to this Section 4.3.D , (i) in the case of cash Capital Contributions by the General Partner funded by an offering of REIT Shares or other shares of capital stock of the General Partner and (ii) in the case of the contribution of Properties by the General Partner which were acquired by the General Partner in exchange for REIT Shares or other shares of capital stock of the General Partner immediately prior to such contribution, the General Partner shall be issued a number of Partnership Units equal and corresponding to the number of such shares issued by the General Partner in exchange for such cash or Properties, the Partnership Units held by the other Partners shall not be adjusted, and the Partners’ Percentage Interests shall be adjusted accordingly. The General Partner shall promptly give each Partner written notice of its Percentage Interest, as adjusted. This Section 4.3.D shall not apply to the issuance of Profits Interest Units, which shall be governed by Section 4.5 , and the General Partner may adjust Percentage Interests in a manner that is different from the provisions of this Section 4.3.D to the extent it reasonably determines it is appropriate to do so to reflect the value of the respective Capital Contributions made to the Partnership and the number of Partnership Units issued with respect thereto.

Section 4.4 Other Contribution Provisions .

In the event that any Partner is admitted to the Partnership and is given (or is treated as having received) a Capital Account at the time of admission in exchange for services rendered to the Partnership, such transaction shall be treated by the Partnership and the affected Partner as if the Partnership had compensated such Partner in cash, and the Partner had contributed such cash to the capital of the Partnership. In addition, with the consent of the General Partner, in its sole discretion, one or more Limited Partners may enter into agreements with the Partnership, in the form of a guarantee or contribution agreement, which have the effect of providing a guarantee of certain obligations of the Partnership.

 

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Section 4.5 Profit Interest Units .

The General Partner may from time to time issue Profits Interest Units to Persons who provide services to the Partnership, for such consideration or for no consideration as the General Partner may determine to be appropriate, and admit such Persons as Limited Partners. Subject to the following provisions of this Section 4.5 and the special provisions of Sections 4.3.D, 6.2.C, 8.7, 8.8, Article 18 and Article 19 , Profits Interest Units shall be treated as Common Units, with all of the rights, privileges and obligations attendant thereto. Subject to Section 18.2.A(4) and 19.2A(4) , for purposes of computing the Partners’ Percentage Interests, Profits Interest Units shall be treated as Common Units. In particular, the Partnership shall maintain at all times a one-to-one correspondence between Profits Interest Units and Common Units for conversion, distribution and other purposes, including without limitation complying with the following procedures:

A. If an Adjustment Event occurs, then the General Partner shall make a corresponding adjustment to the Profits Interest Units to maintain a one-for-one conversion and economic equivalence ratio between Common Units and Profits Interest Units. The following shall be “ Adjustment Events ”: (i) the Partnership makes a distribution on all outstanding Common Units in Partnership Units, (ii) the Partnership subdivides the outstanding Common Units into a greater number of units or combines the outstanding Common Units into a smaller number of units, or (iii) the Partnership issues any Partnership Units in exchange for its outstanding Common Units by way of a reclassification or recapitalization of its Common Units. If more than one Adjustment Event occurs, the adjustment to the Profits Interest Units need be made only once using a single formula that takes into account each and every Adjustment Event as if all Adjustment Events occurred simultaneously. For the avoidance of doubt, the following shall not be Adjustment Events: (x) the issuance of Partnership Units in a financing, reorganization, acquisition or other similar business transaction, (y) the issuance of Partnership Units pursuant to any employee benefit or compensation plan or distribution reinvestment plan, or (z) the issuance of any Partnership Units to the Company in respect of a Capital Contribution to the Partnership of proceeds from the sale of securities by the Company. If the Partnership takes an action affecting the Common Units other than actions specifically described above as “Adjustment Events” and in the opinion of the General Partner such action would require an adjustment to the Profits Interest Units to maintain the one-to-one correspondence described above, the General Partner shall have the right to make such adjustment to the Profits Interest Units, to the extent permitted by law and by any applicable Stock Plan or other compensatory arrangement or incentive program pursuant to which Profits Interest Units are issued, in such manner and at such time as the General Partner, in its sole discretion, may determine to be reasonably appropriate under the circumstances. If an adjustment is made to the Profits Interest Units as herein provided the Partnership shall promptly file in the books and records of the Partnership an officer’s certificate setting forth such adjustment and a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment absent manifest error. Promptly after filing of such certificate, the Partnership

 

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shall mail a notice to each Profits Interest Unitholder setting forth the adjustment to his or her Profits Interest Units and the effective date of such adjustment.

B. Except as otherwise provided in this Agreement (including, without limitation, Article 18 with respect the Class C Units and Article 19 with respect to Class D Units) or by the General Partner with respect to any particular class or series of Profits Interest Units, (a) the Profits Interest Unitholders shall, in respect of each Distribution Payment Date, when, as and if authorized and declared by the General Partner out of assets legally available for that purpose, be entitled to receive distributions in an amount per Profits Interest Unit equal to the distributions per Common Unit, paid to holders of record on the same record date established by the General Partner with respect to such Distribution Payment Date; (b) references to additional Partnership Interests in Section 5.4 shall be deemed to include Profits Interest Units issued during a Distribution Period and such Section 5.4 shall apply in full to Profits Interest Units; (c) during any Distribution Period, so long as any Profits Interest Units are outstanding, no distributions (whether in cash or in kind) shall be authorized, declared or paid on Common Units, unless equal distributions have been or contemporaneously are authorized, declared and paid on the Profits Interest Units for such Distribution Period, (d) the Profits Interest Units shall rank pari passu with the Common Units as to the payment of regular and special periodic or other distributions and distribution of assets, and (e) any class or series of Partnership Units or Partnership Interests which by its terms specifies that it shall rank junior to, on a parity with, or senior to the Common Units with respect to distributions shall also rank junior to, on a parity with, or senior to, as the case may be, the Profits Interest Units. Notwithstanding the foregoing provisions of this Section 4.5.B , proceeds from a Liquidating Event shall be distributed to Holders of Partnership Units as set forth in Sections 5.3 and 13.2 . Subject to the terms of any Vesting Agreement, a Profits Interest Unitholder shall be entitled to transfer his or her Profits Interest Units to the same extent, and subject to the same restrictions as holders of Common Units are entitled to transfer their Common Units pursuant to Article 11 .

C. Profits Interest Units shall be subject to the following special provisions:

(a) Vesting Agreements . Profits Interest Units may, in the sole discretion of the General Partner, be issued subject to vesting, forfeiture and additional restrictions on transfer pursuant to the terms of a Vesting Agreement. The terms of any Vesting Agreement may be modified by the General Partner from time to time in its sole discretion, subject to any restrictions on amendment imposed by the relevant Vesting Agreement or by the Plan, if applicable. Profits Interest Units that were fully vested when issued or that have vested under the terms of a Vesting Agreement are referred to as “ Vested Profits Interest Units ”; all other Profits Interest Units shall be treated as “ Unvested Profits Interest Units .”

(b) Forfeiture . Unless otherwise specified in the Vesting Agreement or in any applicable Stock Plan or other compensatory arrangement or incentive program pursuant to which Profits Interest Units are issued, upon the occurrence of any event specified

 

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in such Vesting Agreement, Stock Plan, arrangement or program as resulting in either the right of the Partnership or the General Partner to repurchase Profits Interest Units at a specified purchase price or some other forfeiture of any Profits Interest Units, then if the Partnership or the General Partner exercises such right to repurchase or forfeiture or upon the occurrence of the event causing forfeiture in accordance with the applicable Vesting Agreement, Stock Plan, arrangement or program, then the relevant Profits Interest Units shall immediately, and without any further action, be treated as cancelled and no longer outstanding for any purpose. Unless otherwise specified in the applicable Vesting Agreement, Stock Plan, arrangement or program, no consideration or other payment shall be due with respect to any Profits Interest Units that have been forfeited, other than any distributions declared with respect to a Partnership Record Date and with respect to such units, prior to the effective date of the forfeiture. Except as otherwise provided in this Agreement or any agreement relating to the grant of Profits Interest Units (including each Class C Units Agreement and Class D Units Agreement), in connection with any repurchase or forfeiture of such units, the balance of the portion of the Capital Account of the Profits Interest Unitholder that is attributable to all of his or her Profits Interest Units shall be reduced by the amount, if any, by which it exceeds the target balance contemplated by Section 6.2.C , calculated with respect to the Profits Interest Unitholder’s remaining Profits Interest Units, if any.

(c) Allocations . Profits Interest Unitholders shall be entitled to certain special allocations of gain under Section 6.2.C and of income under Article 19 .

(d) Redemption . The Redemption Right provided to Limited Partners under Section 8.6 shall not apply with respect to Profits Interest Units unless and until they are converted to Common Units as provided in clause (f) below and Section 8.7 .

(e) Legend . Any certificate evidencing an Profits Interest Unit shall bear an appropriate legend indicating that additional terms, conditions and restrictions on transfer, including without limitation any Vesting Agreement, apply to the Profits Interest Unit.

(f) Conversion to Common Units . Vested Profits Interest Units are eligible to be converted into Common Units under Section 8.7 .

(g) Voting . Profits Interest Units shall have the voting rights provided in Section 8.8 .

D. Each Partner authorizes the General Partner to elect to apply the safe harbor (the “ Section 83 Safe Harbor ”) set forth in proposed Regulations Section 1.83-3(l) and proposed IRS Revenue Procedure published in Notice 2005-43 (together, the “ Proposed Section 83 Safe Harbor Regulation ”) (under which the fair market value of a Partnership Interest that is transferred in connection with the performance of services is treated as being equal to the liquidation value of the interest) if such Proposed Section 83 Safe Harbor Regulation or similar Regulations are promulgated as a final or temporary Regulations. If the General Partner determines that the Partnership should make such election, the General Partner is hereby

 

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authorized to amend this Agreement without the consent of any other Partner to provide that (i) the Partnership is authorized and directed to elect the Section 83 Safe Harbor, (ii) the Partnership and each of its Partners (including any Person to whom a Partnership Interest, including a Profits Interest Unit, is transferred in connection with the performance of services) will comply with all requirements of the Section 83 Safe Harbor with respect to all Partnership Interests transferred in connection with the performance of services while such election remains in effect and (iii) the Partnership and each of its Partners will take all actions necessary, including providing the Partnership with any required information, to permit the Partnership to comply with the requirements set forth or referred to in the applicable Regulations for such election to be effective until such time (if any) as the General Partner determines, in its sole discretion, that the Partnership should terminate such election. The General Partner is further authorized to amend this Agreement to modify Article 6 to the extent the General Partner determines in its discretion that such modification is necessary or desirable as a result of the issuance of any applicable law, Regulations, notice or ruling relating to the tax treatment of the transfer of a Partnership Interests in connection with the performance of services. Notwithstanding anything to the contrary in this Agreement, each Partner expressly confirms that it will be legally bound by any such amendment.

Section 4.6 No Preemptive Rights

Except to the extent expressly granted by the Partnership pursuant to another agreement, no Person shall have any preemptive, preferential or other similar right with respect to (i) additional Capital Contributions or loans to the Partnership or (ii) issuance or sale of any Partnership Units or other Partnership Interests.

ARTICLE 5.

DISTRIBUTIONS

Section 5.1 Requirement and Characterization of Distributions

The General Partner shall cause the Partnership to distribute quarterly all, or such portion as the General Partner may in its discretion determine, of Available Cash generated by the Partnership to the Partners who are Partners on the applicable Partnership Record Date with respect to such distribution, (1) first, with respect to any class or series of Partnership Interests that are entitled to any preference in distributions, in accordance with the rights of such class or series of Partnership Interests (and within such class or series, pro rata in proportion to the respective Percentage Interests on the applicable Partnership Record Date), and (2) second, with respect to any class or series of Partnership Interests that are not entitled to any preference in distributions, pro rata to each such class or series in accordance with the terms of such class or series to the Partners who are Partners of such class or series on the Partnership Record Date with respect to such distribution (and within each such class or series, pro rata in proportion to the respective Percentage Interests on such Partnership Record Date), subject to any limitations on distributions with respect to any class of Profits Interest Units. Unless otherwise expressly

 

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provided for herein or in an agreement, if any, entered into in connection with the creation of a new class or series of Partnership Interests created in accordance with Article 4 , no Partnership Interest shall be entitled to a distribution in preference to any other Partnership Interest. The General Partner shall take such reasonable efforts, as determined by it in its sole and absolute discretion and consistent with its qualification as a REIT, to cause the Partnership to distribute sufficient amounts to enable the General Partner, for so long as the General Partner has determined to qualify as a REIT, to pay stockholder dividends that will (a) satisfy the requirements for qualifying as a REIT under the Code and Regulations (“ REIT Requirements ”), and (b) except to the extent otherwise determined by the General Partner, avoid the imposition of any federal income or excise tax liability on the General Partner, except to the extent that a distribution pursuant to clause (b) would prevent the Partnership from making a distribution to the Holders of Series E Preferred Units in accordance with Section 21.2, Series F Preferred Units in accordance with Section 22.2 and Series G Preferred Units in accordance with Section 23.2 .

Section 5.2 Distributions in Kind

Except as expressly provided herein, no right is given to any Partner to demand and receive property other than cash. The General Partner may determine, in its sole and absolute discretion, to make a distribution in-kind to the Partners of Partnership assets, and such assets shall be distributed in such a fashion as to ensure that the fair market value is distributed and allocated in accordance with Articles 5 , 6 and 10 .

Section 5.3 Distributions Upon Liquidation

Notwithstanding Section 5.1 , proceeds from a Liquidating Event shall be distributed to the Partners in accordance with Section 13.2 .

Section 5.4 Distributions to Reflect Issuance of Additional Partnership Interests

In the event that the Partnership issues additional Partnership Interests to the General Partner or any Additional Limited Partner pursuant to Section 4.3.B , 4.3.C or 4.5 , the General Partner shall make such revisions to this Article 5 as it determines are necessary to reflect the issuance of such additional Partnership Interests. In the absence of any agreement to the contrary, an Additional Limited Partner shall be entitled to the distributions set forth in Section 5.1 (without regard to this Section 5.4 ) with respect to the period during which the closing of its contribution to the Partnership occurs, multiplied by a fraction the numerator of which is the number of days from and after the date of such closing through the end of the applicable period, and the denominator of which is the total number of days in such period.

 

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ARTICLE 6.

ALLOCATIONS

Section 6.1 Timing and Amount of Allocations of Net Income and Net Loss

Net Income and Net Loss of the Partnership shall be determined and allocated with respect to each Partnership Year of the Partnership as of the end of each such year. Subject to the other provisions of this Article 6 , an allocation to a Partner of a share of Net Income or Net Loss shall be treated as an allocation of the same share of each item of income, gain, loss or deduction that is taken into account in computing Net Income or Net Loss.

Section 6.2 General Allocations

Except as otherwise provided in this Article 6 , Net Income and Net Loss allocable with respect to a class of Partnership Interests shall be allocated to each of the Holders holding such class of Partnership Interests in accordance with their respective Percentage Interest of such class.

A. Allocation of Net Income and Net Losses .

(1) Net Income . Except as otherwise provided in Section 6.3 , Net Income for any Partnership Year shall be allocated to the Partners in the following manner and order of priority:

(a) First , to the General Partner in an amount equal to the remainder, if any, of the cumulative Net Losses allocated to the General Partner pursuant to Section 6.2.A.2(d) for all prior Partnership Years minus the cumulative Net Income allocated to the General Partner pursuant to this Section 6.2.A.(1)(a) for all prior Partnership Years;

(b) Second , to each Limited Partner in an amount equal to the remainder, if any, of the cumulative Net Losses allocated to each such Limited Partner pursuant to Section 6.2.A.2(c) for all prior Partnership Years minus the cumulative Net Income allocated to such Limited Partner pursuant to this Section 6.2.A.(1)(b) for all prior Partnership Years;

(c) Third , to the General Partner in an amount equal to the remainder, if any, of the cumulative Net Losses allocated to the General Partner pursuant to Section 6.2.A.2(b) for all prior Partnership Years minus the cumulative Net Income allocated to such Partner pursuant to this Section 6.2.A.1(c) for all prior Partnership Years;

(d) Fourth , to the General Partner in an amount equal to the sum of (i) the excess of the cumulative Series E Priority Return on the Series E Preferred Units to the last day of the current Partnership Year or to the date of redemption or conversion of the Series E Preferred Units, to the extent such Series E Preferred Units are redeemed or converted during

 

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such year over the cumulative Net Income allocated to the General Partner pursuant to this clause (i)  of this Section 6.2.A.1(d) for all prior Partnership Years, (ii) the excess of the cumulative Series F Priority Return on the Series F Preferred Units to the last day of the current Partnership Year or to the date of redemption or conversion of the Series F Preferred Units, to the extent such Series F Preferred Units are redeemed or converted during such year over the cumulative Net Income allocated to the General Partner pursuant to this clause (ii)  of this Section 6.2.A.1(d) for all prior Partnership Years, (iii) the excess of the cumulative Series G Priority Return on the Series G Preferred Units to the last day of the current Partnership Year or to the date of redemption or conversion of the Series G Preferred Units, to the extent such Series G Preferred Units are redeemed or converted during such year over the cumulative Net Income allocated to the General Partner pursuant to this clause (iii)  of this Section 6.2.A.1(d) for all prior Partnership Years, provided however that notwithstanding clauses (i)-(iii) of this Section 6.2.A.1(d) , in connection with any conversion of any such Partnership Units, the General Partner shall be permitted to make allocations of income or loss with respect to such Partnership Units and the Common Units issued upon such conversion that are consistent with the distributions payable with respect to such Partnership Units and Common Units;

(e) Fifth, to the General Partner and the Limited Partners in an amount equal to the remainder, if any, of the cumulative Net Losses allocated to each such Partner pursuant to Section 6.2.A.2(a) for all prior Partnership Years minus the cumulative Net Income allocated to each Partner pursuant to this Section 6.2.A.(1)(e) for all prior Partnership Years; and

(f) Sixth , to each of the Partners in accordance with their respective Percentage Interests in the Common-Equivalent Units, subject to any limitations on allocations with respect to any class of Profits Interest Units.

To the extent the allocations of Net Income set forth above in any paragraph of this Section 6.2.A.(1) are not sufficient to entirely satisfy the allocation set forth in such paragraph, such allocation shall be made in proportion to the total amount that would have been allocated pursuant to such paragraph without regard to such shortfall.

(2) Net Losses . Except as otherwise provided in Section 6.3 , Net Losses for any Partnership Year shall be allocated to the Partners in the following manner and order of priority:

(a) First , to the General Partner and the Limited Partners in accordance with their respective Percentage Interests in the Common-Equivalent Units (to the extent consistent with this Section 6.2.A(2)(a) ) until the Adjusted Capital Account Balance (ignoring for this purpose any amounts a Partner is obligated to contribute to the capital of the Partnership or is deemed obligated to contribute pursuant to Regulations Section 1.704-1(b)(2)(ii)(c)(2) and ignoring the General Partner’s Series E Preferred Capital, Series F Preferred Capital and Series G Preferred Capital) of each such Partner is zero;

 

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(b) Second , to the General Partner (ignoring for this purpose any amounts the General Partner is obligated to contribute to the capital of the Partnership or is deemed obligated to contribute pursuant to Regulations Section 1.704-1(b)(2)(ii)(c)(2)), until the Adjusted Capital Account (as so modified) of the General Partner is zero;

(c) Third, to the Limited Partners to the extent of, and in proportion to, the positive balance (if any) in their Adjusted Capital Accounts; and

(d) Fourth, to the General Partner.

B. Allocations to Reflect Issuance of Additional Partnership Interests . In the event that the Partnership issues additional Partnership Interests to the General Partner, a Limited Partner or any Additional Limited Partner pursuant to Section 4.3 , the General Partner shall make such revisions to this Section 6.2 as it determines are necessary to reflect the terms of the issuance of such additional Partnership Interests, including making preferential allocations to certain classes of Partnership Interests, subject to the terms of the Series E Preferred Units, the Series F Preferred Units and Series G Preferred Units, in accordance with any method selected by the General Partner.

C. Special Allocation of Gain or Loss to Profits Interest Unitholders . Notwithstanding the allocations set forth in Section 6.2.A(1) above, any net capital gains or net capital losses realized in connection with the actual or hypothetical sale of all or substantially all of the assets of the Partnership, including but not limited to net capital gain treated as realized in connection with an adjustment to the Gross Asset Value of Partnership assets as set forth in the definition of such term, shall first be allocated to the Profits Interest Unitholders until the Economic Capital Account Balances of such Limited Partners, to the extent attributable to their ownership of Profits Interest Units, are equal to (i) the Common Unit Economic Balance, multiplied by (ii) the number of their Profits Interest Units. For this purpose, the “ Economic Capital Account Balances ” of the Profits Interest Unitholders will be equal to their Capital Account balances, plus the amount of their shares of any Partner Minimum Gain or Partnership Minimum Gain, in each case to the extent attributable to their ownership of Profits Interest Units. Similarly, the “ Common Unit Economic Balance ” shall mean (i) the Capital Account balance of the Company, plus the amount of the Company’s share of any Partner Minimum Gain or Partnership Minimum Gain, in either case to the extent attributable to the Company’s ownership of Common Units and computed on a hypothetical basis after taking into account all allocations through the date on which any allocation is made under this Section 6.2.C , divided by (ii) the number of the Company’s Common Units. Any such allocations shall be made among the Profits Interest Unitholders in proportion to the amounts required to be allocated to each under this Section 6.2.C . The parties agree that the intent of this Section 6.2.C is to make the Capital Account balances of the Profits Interest Unitholders with respect to their

 

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Profits Interest Units economically equivalent to the Capital Account balance of the Company with respect to its Common Units.

D. Allocations in Connection with a Liquidating Event . Except as otherwise provided in Section 6.3, the allocations of Net Income and Net Loss set forth in the foregoing provisions of this Section 6.2 shall be adjusted to the extent necessary so as to result in the Capital Account balance of each Partner being such that distributions to the Partners pursuant to Section 13.2 upon the occurrence of a Liquidating Event shall be made first to the General Partner in an amount equal to the sum of the Series E Preferred Capital, the Series F Preferred Capital and the Series G Preferred Capital, and thereafter to Holders of Common-Equivalent Units in accordance with their Percentage Interests in such Units.

Section 6.3 Additional Allocation Provisions

Notwithstanding the foregoing provisions of this Article 6 :

A. Regulatory Allocations .

(i) Minimum Gain Chargeback . Except as otherwise provided in Regulations Section 1.704-2(f), notwithstanding the provisions of Section 6.2 , or any other provision of this Article 6 , if there is a net decrease in Partnership Minimum Gain during any Partnership Year, each Holder shall be specially allocated items of Partnership income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Holder’s share of the net decrease in Partnership Minimum Gain, as determined under Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Holder pursuant thereto. The items to be allocated shall be determined in accordance with Regulations Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 6.3.A(i) is intended to qualify as a “minimum gain chargeback” within the meaning of Regulation Section 1.704-2(f) which shall be controlling in the event of a conflict between such Regulation and this Section 6.3.A(i) .

(ii) Partner Minimum Gain Chargeback . Except as otherwise provided in Regulations Section 1.704-2(i)(4), and notwithstanding the provisions of Section 6.2 , or any other provision of this Article 6 (except Section 6.3.A(i) ), if there is a net decrease in Partner Minimum Gain attributable to a Partner Nonrecourse Debt during any Partnership Year, each Holder who has a share of the Partner Minimum Gain attributable to such Partner Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(5), shall be specially allocated items of Partnership income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Holder’s share of the net decrease in Partner Minimum Gain attributable to such Partner Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Holder pursuant thereto.

 

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The items to be so allocated shall be determined in accordance with Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 6.3.A(ii) is intended to qualify as a “chargeback of partner nonrecourse debt minimum gain” within the meaning of Regulation Section 1.704-2(i) which shall be controlling in the event of a conflict between such Regulation and this Section 6.3.A(ii) .

(iii) Nonrecourse Deductions and Partner Nonrecourse Deductions . Any Nonrecourse Deductions for any Partnership Year shall be specially allocated to the Holders in accordance with their respective Percentage Interests in Common-Equivalent Units. Any Partner Nonrecourse Deductions for any Partnership Year shall be specially allocated to the Holder(s) who bears the economic risk of loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable, in accordance with Regulations Sections 1.704-2(b)(4) and 1.704-2(i).

(iv) Qualified Income Offset . If any Holder unexpectedly receives an adjustment, allocation or distribution described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Partnership income and gain shall be allocated, in accordance with Regulations Section 1.704-1(b)(2)(ii)(d), to the Holder in an amount and manner sufficient to eliminate, to the extent required by such Regulations, the Adjusted Capital Account Deficit of the Holder as quickly as possible provided that an allocation pursuant to this Section 6.3.A(iv) shall be made if and only to the extent that such Holder would have an Adjusted Capital Account Deficit after all other allocations provided in this Article 6 have been tentatively made as if this Section 6.3.A(iv) were not in this Agreement. It is intended that this Section 6.3.A(iv) qualify and be construed as a “qualified income offset” within the meaning of Regulations 1.704-1(b)(2)(ii)(d), which shall be controlling in the event of a conflict between such Regulations and this Section 6.3.A(iv) .

(v) Gross Income Allocation . In the event any Holder has a deficit Capital Account at the end of any Partnership Year which is in excess of the sum of (1) the amount (if any) such Holder is obligated to restore to the Partnership, and (2) the amount such Holder is deemed to be obligated to restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c) or the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Holder shall be specially allocated items of Partnership income and gain in the amount of such excess as quickly as possible, provided , that an allocation pursuant to this Section 6.3.A(v) shall be made if and only to the extent that such Holder would have a deficit Capital Account in excess of such sum after all other allocations provided in this Article 6 have been tentatively made as if this Section 6.3.A(v) and Section 6.3.A(iv) were not in this Agreement.

(vi) Limitation on Allocation of Net Loss . To the extent any allocation of Net Loss would cause or increase an Adjusted Capital Account Deficit as to any Holder, such allocation of Net Loss shall be reallocated among the other Holders in accordance

 

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with their respective Percentage Interests in Common-Equivalent Units subject to the limitations of this Section 6.3.A(vi) .

(vii) Section 754 Adjustment . To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as the result of a distribution to a Holder in complete liquidation of his interest in the Partnership, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Holders in accordance with their interests in the Partnership in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Holders to whom such distribution was made in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.

(viii) Noncompensatory Options . If, as a result of an exercise of a Noncompensatory Option to acquire an interest in the Partnership, a Capital Account reallocation is required under Regulations Section 1.704-1(b)(2)(iv)(s)(3), the Partnership shall make corrective allocations pursuant to Regulations Section 1.704-1(b)(4)(x).

(ix) Curative Allocation . The allocations set forth in Sections 6.3.A(i) , (ii) , (iii) , (iv) , (v) , (vi) , and (vii)  (the “ Regulatory Allocations ”) are intended to comply with certain regulatory requirements, including the requirements of Regulations Sections 1.704-1(b) and 1.704-2. Notwithstanding the provisions of Sections 6.1 and 6.2 (but subject to Section 6.2.D), the Regulatory Allocations shall be taken into account in allocating other items of income, gain, loss and deduction among the Holders so that, to the extent possible, the net amount of such allocations of other items and the Regulatory Allocations to each Holder shall be equal to the net amount that would have been allocated to each such Holder if the Regulatory Allocations had not occurred.

B. For purposes of determining a Holder’s proportional share of the “excess nonrecourse liabilities” of the Partnership within the meaning of Regulations Section 1.752-3(a)(3), each Holder’s interest in Partnership profits shall be such Holder’s Percentage Interest in Common-Equivalent Units.

Section 6.4 Tax Allocations

A. In General . Except as otherwise provided in this Section 6.4 , for income tax purposes each item of income, gain, loss and deduction (collectively, “ Tax Items ”) shall be allocated among the Holders in the same manner as its correlative item of “book” income, gain, loss or deduction is allocated pursuant to Sections 6.2 and 6.3 .

B. Allocations Respecting Section 704(c) Revaluations . Notwithstanding Section 6.4.A , Tax Items with respect to Partnership property that is contributed to the Partnership by a

 

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Partner shall be shared among the Holders for income tax purposes pursuant to Regulations promulgated under Section 704(c) of the Code, so as to take into account the variation, if any, between the basis of the property to the Partnership and its initial Gross Asset Value. With respect to Partnership property that is contributed to the Partnership in connection with the General Partner’s initial public offering or pursuant to the Partnership’s exercise of rights under any Option Agreement or ROFO Agreement, such variation between basis and initial Gross Asset Value shall be taken into account under the “traditional method” as described in Regulations Section 1.704-3(b). With respect to other Properties contributed to the Partnership, the Partnership shall account for such variation under any method consistent with Section 704(c) of the Code and the applicable regulations as chosen by the General Partner. In the event the Gross Asset Value of any Partnership asset is adjusted pursuant to subparagraph (b) of the definition of Gross Asset Value (provided in Article 1 ), subsequent allocations of Tax Items with respect to such asset shall take account of the variation, if any, between the adjusted basis of such asset and its Gross Asset Value in the same manner as under Section 704(c) of the Code and the applicable regulations consistent with the requirements of Regulations Section 1.704-1(b)(2)(iv)(g) using any method approved under Section 704(c) of the Code and the applicable regulations as chosen by the General Partner, provided , however , that the “traditional method” as described in Regulations Section 1.704-3(b) shall be used with respect to Partnership property that is contributed to the Partnership in connection with the General Partner’s initial public offering or pursuant to the Partnership’s exercise of rights under any Option Agreement or ROFO Agreement.

Section 6.5 Special Allocations

A. Notwithstanding the provisions in Section 6.2.A but subject to the other provisions of this Article 6 , if the Partnership has positive Adjusted Net Income for a fiscal year, such Adjusted Net Income shall first be allocated to the General Partner under Section 6.2.A(1)(d) for such fiscal year, with the remaining items of Net Income or Net Loss allocated to the Partners pursuant to Section 6.2.A .

B. Notwithstanding the provisions of Section 6.2.A , but subject to Sections 6.3 and 6.5.A , in the event Net Income, Net Loss or items thereof are being allocated to a Partner to offset prior Net Loss, Net Income or items thereof which have been allocated to such Partner, the General Partner shall attempt to allocate such offsetting Net Income, Net Loss or items thereof which are of the same or similar character (including without limitation Section 704(b) book items versus tax items) to the original allocations with respect to such Partner.

ARTICLE 7.

MANAGEMENT AND OPERATIONS OF BUSINESS

Section 7.1 Management

A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the

 

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General Partner, and no Limited Partner shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Sections 7.3 and 11.2 , shall have full power and authority to do all things deemed necessary or desirable by it to conduct the business of the Partnership (including, without limitation, all actions consistent with allowing the General Partner at all times to qualify as a REIT unless the General Partner voluntarily terminates its REIT status), to exercise all powers set forth in Section 3.2 and to effectuate the purposes set forth in Section 3.1 , including, without limitation:

(1) the making of any expenditures, the lending or borrowing of money (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on all or any of the Partnership’s assets) and the incurring of any obligations it deems necessary for the conduct of the activities of the Partnership;

(2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act, and the listing of any debt securities of the Partnership on any exchange;

(3) subject to the provisions of Section 11.2 , the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any assets of the Partnership or the merger or other combination of the Partnership with or into another entity;

(4) the acquisition, disposition, mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct or the operations of the General Partner or the Partnership, the lending of funds to other Persons (including, without limitation, the General Partner or any Subsidiaries of the Partnership) and the repayment of obligations of the Partnership, any of its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;

 

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(5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;

(6) the negotiation, execution, and performance of any contracts, leases, conveyances or other instruments that the General Partner considers useful or necessary to the conduct of the Partnership’s operations or the implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;

(7) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement;

(8) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;

(9) the maintenance of such insurance for the benefit of the Partnership and the Partners and directors and officers of the Partnership or the General Partner as it deems necessary or appropriate;

(10) the formation of, or acquisition of an interest in, and the contribution of property to, any further limited or general partnerships, limited liability companies, joint ventures, corporations or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to any Subsidiary and any other Person in which it has an equity investment from time to time); provided , that , as long as the General Partner has determined to continue to qualify as a REIT, the Partnership may not engage in any such formation, acquisition or contribution that could cause the General Partner to fail to qualify as a REIT;

(11) the control of any matters affecting the rights and obligations of the Partnership, including the settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, Debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense, and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;

 

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(12) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Person (including, without limitation, contributing or loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);

(13) subject to the other provisions in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided , that such methods are otherwise consistent with requirements of this Agreement;

(14) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;

(15) holding, managing, investing and reinvesting cash and other assets of the Partnership;

(16) the collection and receipt of revenues and income of the Partnership;

(17) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;

(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;

(19) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;

(20) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;

(21) the issuance of additional Partnership Interests as provided in Sections 4.3 , 4.4 or 4.5 ;

 

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(22) the distribution of cash to acquire Common Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption Right under Section 8.6 ;

(23) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;

(24) the taking of any and all acts and things necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” taxable as a corporation under Section 7704 of the Code; and

(25) the delegation to another Person of any powers now or hereafter granted to the General Partner.

B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3 or 11.2 ), the Act or any applicable law, rule or regulation to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.

C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the benefit of any or all Indemnitees.

D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.

E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by the General Partner. The General Partner and the Partnership shall not have liability to a Partner under this Agreement as a result

 

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of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.

F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.

Section 7.2 Certificate of Limited Partnership

To the extent that such action is determined by the General Partner to be reasonable and necessary or appropriate, the General Partner shall file amendments to and restatements of the Certificate and do all the things to maintain the Partnership as a limited partnership (or a partnership in which the limited partners have limited liability) under the laws of the State of Maryland and to maintain the Partnership’s qualification to do business as a foreign limited partnership in each other state, the District of Columbia or other jurisdiction, in which the Partnership may elect to do business or own property. Subject to the terms of Section 8.5.A(4) , the General Partner shall not be required, before or after filing, to deliver or mail a copy of the Certificate or any amendment thereto to any Limited Partner. The General Partner shall use all reasonable efforts to cause to be filed such other certificates or documents as may be reasonable and necessary or appropriate for the formation, continuation, qualification and operation of a limited partnership (or a partnership in which the limited partners have limited liability) in the State of Maryland, any other state, or the District of Columbia or other jurisdiction, in which the Partnership may elect to do business or own property.

Section 7.3 Restrictions on General Partner’s Authority

A. The General Partner may not take any action in contravention of an express prohibition or limitation of this Agreement without the written Consent of the Limited Partners and may not (i) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any liability not contemplated herein or under the Act; or (ii) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of a Limited Partner to exercise its rights to a Redemption as provided in Section 8.6 , except in each case with the written consent of such Limited Partner.

B. The General Partner shall not, without the prior Consent of the Limited Partners, or except as provided in Section 7.3.C , amend, modify or terminate this Agreement.

C. Notwithstanding Section 7.3.B , the General Partner shall have the exclusive power to amend this Agreement as may be required to facilitate or implement any of the following purposes:

 

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(1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;

(2) to reflect the issuance of additional Partnership Interests pursuant to Sections 4.3 , 4.4 , 4.5 , 5.4 and 6.2.B or the admission, substitution, termination, or withdrawal of Partners in accordance with this Agreement (which may be effected through the replacement of Exhibit A with an amended Exhibit A );

(3) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4 ;

(4) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;

(5) to satisfy any requirements, conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;

(6) to reflect such changes as are reasonably necessary for the General Partner to maintain its status as a REIT, including changes which may be necessitated due to a change in applicable law (or an authoritative interpretation thereof) or a ruling of the IRS; and

(7) to modify, as set forth in the definition of “ Capital Account ,” the manner in which Capital Accounts are computed.

The General Partner will provide notice to the Limited Partners when any action under this Section 7.3.C is taken.

D. Notwithstanding Sections 7.3.B and 7.3.C , this Agreement shall not be amended with respect to any Partner adversely affected, and no action may be taken by the General Partner, without the Consent of such Partner adversely affected if such amendment or action would (i) convert a Limited Partner’s interest in the Partnership into a general partner’s interest (except as the result of the General Partner acquiring such interest), (ii) modify the limited liability of a Limited Partner, (iii) alter rights of the Partner to receive distributions pursuant to Article 5 , Section 13.2.A(4) , Article 21 , Article 22 or Article 23 or the allocations specified in Article 6 (except as permitted pursuant to Sections 4.3 , 4.4 , 4.5 , 5.4 , 6.2.B and Section 7.3.C(3) ), (iv) adversely alter or modify the rights to a Redemption or the REIT Shares Amount as set forth in Section 8.6 , and related definitions hereof, (v) alter the protections of the Limited Partners as set forth in Section 11.2.B or (vi) amend this Section 7.3.D . Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without

 

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the Consent specified in such section. This Section 7.3D does not require unanimous consent of all Partners adversely affected unless the amendment is to be effective against all partners adversely affected.

Section 7.4 Reimbursement of the General Partner

A. Except as provided in this Section 7.4 and elsewhere in this Agreement (including the provisions of Articles 5 and 6 regarding distributions, payments and allocations to which it may be entitled), the General Partner shall not be compensated for its services as general partner of the Partnership.

B. The Partnership shall be responsible for and shall pay all expenses relating to the Partnership’s and the General Partner’s organization, the ownership of its assets and its operations. The General Partner is hereby authorized to cause the Partnership to pay compensation for accounting, administrative, legal, technical, management and other services rendered to the Partnership. Except to the extent provided in this Agreement, the General Partner and its Affiliates shall be reimbursed on a monthly basis, or such other basis as the General Partner may determine in its sole and absolute discretion, for all expenses that the General Partner and its Affiliates incur relating to the ownership and operation of, or for the benefit of, the Partnership (including, without limitation, administrative expenses); provided , that the amount of any such reimbursement shall be reduced by any interest earned by the General Partner with respect to bank accounts or other instruments or accounts held by it on behalf of the Partnership. The Partners acknowledge that all such expenses of the General Partner are deemed to be for the benefit of the Partnership. Such reimbursement shall be in addition to any reimbursement made as a result of indemnification pursuant to Section 7.7 . In the event that certain expenses are incurred for the benefit of the Partnership and other entities (including the General Partner), such expenses will be allocated to the Partnership and such other entities in such a manner as the General Partner in its sole and absolute discretion deems fair and reasonable. All payments and reimbursements hereunder shall be characterized for federal income tax purposes as expenses of the Partnership incurred on its behalf, and not as expenses of the General Partner.

C. If the General Partner shall elect to purchase from its stockholders REIT Shares for the purpose of delivering such REIT Shares to satisfy an obligation under any dividend reinvestment program adopted by the General Partner, any employee stock purchase plan adopted by the General Partner, or any similar obligation or arrangement undertaken by the General Partner in the future or for the purpose of retiring such REIT Shares, the purchase price paid by the General Partner for such REIT Shares and any other expenses incurred by the General Partner in connection with such purchase shall be considered expenses of the Partnership and shall be advanced by the Partnership to the General Partner or reimbursed by the Partnership to the General Partner, subject to the condition that: (i) if such REIT Shares subsequently are sold by the General Partner, the General Partner shall pay to the Partnership any proceeds received by the General Partner for such REIT Shares (which sales proceeds shall

 

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include the amount of dividends reinvested under any dividend reinvestment or similar program; provided , that a transfer of REIT Shares for Common Units pursuant to Section 8.6 would not be considered a sale for such purposes); and (ii) if such REIT Shares are not retransferred by the General Partner within thirty (30) days after the purchase thereof, or the General Partner otherwise determines not to retransfer such REIT Shares, the General Partner, shall cause the Partnership to redeem a number of Common Units held by the General Partner equal to the number of such REIT Shares, as adjusted (x) pursuant to Section 7.5 (in the event the General Partner acquires material assets, other than on behalf of the Partnership) and (y) for stock dividends and distributions, stock splits and subdivisions, reverse stock splits and combinations, distributions of rights, warrants or options, and distributions of evidences of indebtedness or assets relating to assets not received by the General Partner pursuant to a pro rata distribution by the Partnership (in which case such advancement or reimbursement of expenses shall be treated as having been made as a distribution in redemption of such number of Common Units held by the General Partner).

D. As set forth in Section 4.3 , the General Partner shall be treated as having made a Capital Contribution in the amount of all expenses that it incurs relating to the General Partner’s offering of REIT Shares, other shares of capital stock of the General Partner or New Securities.

E. If and to the extent any reimbursements to the General Partner pursuant to this Section 7.4 constitute gross income of the General Partner (as opposed to the repayment of advances made by the General Partner on behalf of the Partnership), such amounts shall constitute guaranteed payments within the meaning of Section 707(c) of the Code, shall be treated consistently therewith by the Partnership and all Partners, and shall not be treated as distributions for purposes of computing the Partners’ Capital Accounts.

Section 7.5 Outside Activities of the General Partner

A. Except in connection with a transaction authorized in Section 11.2 , without the Consent of the Limited Partners, the General Partner shall not, directly or indirectly, enter into or conduct any business, other than in connection with the ownership, acquisition and disposition of Partnership Interests as a General Partner and the management of the business of the Partnership, its operation as a public reporting company with a class (or classes) of securities registered under the Exchange Act, its operation as a REIT and such activities as are incidental to the same. Except as otherwise expressly provided in this Section 7.5 , without the Consent of the Limited Partners, the General Partner shall not, directly or indirectly, participate in or otherwise acquire any interest in any real or personal property, except its General Partner Interest, its minority interest in any Subsidiary Partnership(s) that the General Partner holds in order to maintain such Subsidiary Partnership’s status as a partnership, and such bank accounts, similar instruments or other short-term investments as it deems necessary to carry out its responsibilities contemplated under this Agreement and the Charter. In the event the General Partner desires to contribute cash to any Subsidiary Partnership to acquire or maintain an interest of 1% or less in the capital of such partnership, the General Partner may acquire or maintain an interest of 1% or less in the

 

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capital of such partnership, and the General Partner may acquire such cash from the Partnership as a loan or in exchange for a reduction in the General Partner’s Partnership Units, in an amount equal to the amount of such cash divided by the Fair Market Value of a REIT Share on the day such cash is received by the General Partner. Notwithstanding the foregoing, the General Partner may acquire Properties or other assets in exchange for REIT Shares or cash, to the extent such Properties or other assets are immediately contributed by the General Partner to the Partnership, pursuant to the terms described in Section 4.3.D . Any Limited Partner Interests acquired by the General Partner, whether pursuant to exercise by a Limited Partner of its right of Redemption, or otherwise, shall be automatically converted into a General Partner Interest comprised of an identical number of Partnership Units with the same rights, priorities and preferences as the class or series so acquired. The General Partner may also own one-hundred percent (100%) of the stock or interests of one or more Qualified REIT Subsidiaries or limited liability companies, respectively, provided that any such entity shall be subject to the limitations of this Section 7.5.A . If, at any time, the General Partner acquires material assets (other than Partnership Interests or other assets on behalf of the Partnership), the definition of “ REIT Shares Amount ” and the definition of “Deemed Value of the Partnership Interests” shall be adjusted, as reasonably determined by the General Partner, to reflect the relative Fair Market Value of a share of capital stock of the General Partner relative to the Deemed Partnership Interest Value of the related Partnership Unit. The General Partner’s General Partner Interest in the Partnership, its minority interest in any Subsidiary Partnership(s) (held directly or indirectly through a Qualified REIT Subsidiary) that the General Partner holds in order to maintain such Subsidiary Partnership’s status as a partnership, and interests in such short-term liquid investments, bank accounts or similar instruments as the General Partner deems necessary to carry out its responsibilities contemplated under this Agreement and the Charter are interests which the General Partner is permitted to acquire and hold for purposes of this Section 7.5.A .

B. In the event the General Partner exercises its rights under the Charter to purchase REIT Shares, other capital stock of the General Partner or New Securities, as the case may be, then the General Partner shall cause the Partnership to purchase from it a number of Partnership Units equal to the number of REIT Shares, other capital stock of the General Partner or New Securities, as the case may be, so purchased on the same terms that the General Partner purchased such REIT Shares, other capital stock of the General Partner or New Securities, as the case may be.

Section 7.6 Contracts with Affiliates

A. The Partnership may lend or contribute to, and borrow funds from, Persons in which it has an equity investment, and such Persons may borrow funds from, and lend or contribute funds to, the Partnership, on terms and conditions established in the sole and absolute discretion of the General Partner. The foregoing authority shall not create any right or benefit in favor of any Person.

 

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B. Except as provided in Section 7.5.A , the Partnership may transfer assets to joint ventures, other partnerships, corporations or other business entities in which it is or thereby becomes a participant upon such terms and subject to such conditions consistent with this Agreement and applicable law as the General Partner in its sole discretion deems advisable.

C. The General Partner, in its sole and absolute discretion and without the approval of the Limited Partners, may propose and adopt on behalf of the Partnership employee benefit plans (including without limitation plans that contemplate the issuance of Profits Interest Units) funded by the Partnership for the benefit of employees of the General Partner, the Partnership, Subsidiaries of the Partnership or any Affiliate of any of them in respect of services performed or to be performed, directly or indirectly, for the benefit of such entities. The General Partner also is expressly authorized to cause the Partnership to issue to it Common Units corresponding to REIT Shares issued by the General Partner pursuant to any Stock Plan or any similar or successor plan and to repurchase such Partnership Units from the General Partner to the extent necessary to permit the General Partner to repurchase such REIT Shares in accordance with such plan.

D. Except as expressly permitted by this Agreement, neither the General Partner nor any of its Affiliates shall sell, transfer or convey any property to, or purchase any property from, the Partnership, directly or indirectly, except pursuant to transactions that are determined by the General Partner in good faith to be fair and reasonable.

E. The General Partner is expressly authorized to enter into, in the name and on behalf of the Partnership, a right of first opportunity arrangement and other conflict avoidance agreements with various Affiliates of the Partnership and the General Partner, on such terms as the General Partner, in its sole and absolute discretion, believes are advisable.

Section 7.7 Indemnification

A. To the fullest extent permitted by law, the Partnership shall indemnify an Indemnitee from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, settlements, and other amounts arising from any and all claims, demands, subpoenas, requests for information, formal or informal investigations, actions, suits or proceedings, civil, criminal, administrative or investigative, that relate to the operations of the Partnership or the General Partner as set forth in this Agreement in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, unless it is established that: (i) the act or omission of the Indemnitee was material to the matter giving rise to the proceeding and either was committed in bad faith, constituted fraud or was the result of active and deliberate dishonesty; (ii) the Indemnitee actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal proceeding, the Indemnitee had reasonable cause to believe that the act or omission was unlawful. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnitee, pursuant to a loan guaranty or otherwise, for any indebtedness of the

 

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Partnership or any Subsidiary of the Partnership (including, without limitation, any indebtedness which the Partnership or any Subsidiary of the Partnership has assumed or taken subject to), and the General Partner is hereby authorized and empowered, on behalf of the Partnership, to enter into one or more indemnity agreements consistent with the provisions of this Section 7.7 in favor of any Indemnitee having or potentially having liability for any such indebtedness. The termination of any proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standard of conduct set forth in this Section 7.7.A . The termination of any proceeding by conviction or upon a plea of nolo contendere or its equivalent, or any entry of an order of probation prior to judgment, creates a rebuttable presumption that the Indemnitee acted in a manner contrary to that specified in this Section 7.7.A . Any indemnification pursuant to this Section 7.7 shall be made only out of the assets of the Partnership, and any insurance proceeds from liability policies covering the General Partner and any Indemnitee, and neither the General Partner nor any Limited Partner shall have any obligation to contribute to the capital of the Partnership or otherwise provide funds to enable the Partnership to fund its obligations under this Section 7.7 , except to the extent otherwise expressly agreed to by such Partner and the Partnership.

B. Reasonable expenses incurred by an Indemnitee who is a party to a proceeding or the recipient of a subpoena or request for information with respect to a proceeding to which such Indemnitee is not a party may be paid or reimbursed by the Partnership in advance of the final disposition of the proceeding upon receipt by the Partnership of (i) a written affirmation by the Indemnitee of the Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the Partnership as authorized in this Section 7.7 has been met, and (ii) a written undertaking by or on behalf of the Indemnitee to repay the amount if it shall ultimately be determined that the standard of conduct has not been met.

C. The indemnification provided by this Section 7.7 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any vote of the Partners, as a matter of law or otherwise, and shall continue as to an Indemnitee who has ceased to serve in such capacity unless otherwise provided in a written agreement pursuant to which such Indemnitee is indemnified.

D. The Partnership may, but shall not be obligated to, purchase and maintain insurance, on behalf of the Indemnitees and such other Persons as the General Partner shall determine, against any liability that may be asserted against or expenses that may be incurred by such Person in connection with the Partnership’s activities, regardless of whether the Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.

E. For purposes of this Section 7.7 , the Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an

 

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Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute fines within the meaning of Section 7.7 ; and actions taken or omitted by the Indemnitee with respect to an employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Partnership.

F. In no event may an Indemnitee subject the Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.

G. An Indemnitee shall not be denied indemnification in whole or in part under this Section 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.

H. The provisions of this Section 7.7 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons. Any amendment, modification or repeal of this Section 7.7 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Partnership’s liability to any Indemnitee under this Section 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.

I. If and to the extent any reimbursements to the General Partner pursuant to this Section 7.7 constitute gross income of the General Partner (as opposed to the repayment of advances made by the General Partner on behalf of the Partnership) such amounts shall constitute guaranteed payments within the meaning of Section 707(c) of the Code, shall be treated consistently therewith by the Partnership and all Partners, and shall not be treated as distributions for purposes of computing the Partners’ Capital Accounts.

J. Any indemnification hereunder is subject to, and limited by, the provisions of Section 10-107 of the Act.

K. In the event the Partnership is made a party to any litigation or otherwise incurs any loss or expense as a result of or in connection with any Partner’s personal obligations or liabilities unrelated to Partnership business, such Partner shall indemnify and reimburse the Partnership for all such loss and expense incurred, including legal fees, and the Partnership interest of such Partner may be charged therefor. The liability of a Partner under this Section 7.7.K shall not be limited to such Partner’s Partnership Interest, but shall be enforceable against such Partner personally.

 

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Section 7.8 Liability of the General Partner

A. Notwithstanding anything to the contrary set forth in this Agreement, none of the General Partner nor any of its officers, directors, agents or employees shall be liable or accountable in damages or otherwise to the Partnership, any Partners or any Assignees, or their successors or assigns, for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or any act or omission if the General Partner acted in good faith.

B. The Limited Partners expressly acknowledge that the General Partner is acting for the benefit of the Partnership, the Limited Partners and the General Partner’s stockholders collectively. Neither the General Partner generally nor the Board of Directors of the General Partner specifically is under any obligation to give priority to the separate interests of the Limited Partners or the General Partner’s stockholders (including, without limitation, the tax consequences to Limited Partners or Assignees or to stockholders) in deciding whether to cause the Partnership to take (or decline to take) any actions. If there is a conflict between the interests of the stockholders of the General Partner on one hand and the Limited Partners on the other, the General Partner shall endeavor in good faith to resolve the conflict in a manner not adverse to either the stockholders of the General Partner or the Limited Partners; provided , however , that for so long as the General Partner owns a controlling interest in the Partnership, any such conflict that cannot be resolved in a manner not adverse to either the stockholders of the General Partner or the Limited Partners shall be resolved in favor of the stockholders of the General Partner. The General Partner shall not be liable under this Agreement to the Partnership or to any Partner for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Limited Partners in connection with such decisions; provided , that the General Partner has acted in good faith.

C. Subject to its obligations and duties as General Partner set forth in Section 7.1.A , the General Partner may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its agents. The General Partner shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.

D. Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the General Partner and any of its officers, directors, agents and employee’s liability to the Partnership and the Limited Partners under this Section 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.

 

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Section 7.9 Other Matters Concerning the General Partner

A. The General Partner may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties.

B. The General Partner may consult with legal counsel, accountants, appraisers, management consultants, investment bankers and other consultants and advisers selected by it, and any act taken or omitted to be taken in reliance upon the opinion of such Persons as to matters which such General Partner reasonably believes to be within such Person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such opinion.

C. The General Partner shall have the right, in respect of any of its powers or obligations hereunder, to act through any of its duly authorized officers and a duly appointed attorney or attorneys-in-fact. Each such attorney shall, to the extent provided by the General Partner in the power of attorney, have full power and authority to do and perform all and every act and duty which is permitted or required to be done by the General Partner hereunder.

D. Notwithstanding any other provisions of this Agreement or any non-mandatory provision of the Act, any action of the General Partner on behalf of the Partnership or any decision of the General Partner to refrain from acting on behalf of the Partnership, undertaken in the good faith belief that such action or omission is necessary or advisable in order to protect the ability of the General Partner, for so long as the General Partner has determined to qualify as a REIT, to (i) continue to qualify as a REIT or (ii) avoid the General Partner incurring any taxes under Section 857 or Section 4981 of the Code, is expressly authorized under this Agreement and is deemed approved by all of the Limited Partners.

Section 7.10 Title to Partnership Assets

Title to Partnership assets, whether real, personal or mixed and whether tangible or intangible, shall be deemed to be owned by the Partnership as an entity, and no Partners, individually or collectively, shall have any ownership interest in such Partnership assets or any portion thereof. Title to any or all of the Partnership assets may be held in the name of the Partnership, the General Partner or one or more nominees, as the General Partner may determine, including Affiliates of the General Partner. The General Partner hereby declares and warrants that any Partnership assets for which legal title is held in the name of the General Partner or any nominee or Affiliate of the General Partner shall be held by the General Partner for the use and benefit of the Partnership in accordance with the provisions of this Agreement; provided , however , that the General Partner shall use its best efforts to cause beneficial and record title to such assets to be vested in the Partnership as soon as reasonably practicable. All Partnership assets shall be recorded as the property of the Partnership in its books and records, irrespective of the name in which legal title to such Partnership assets is held.

 

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Section 7.11 Reliance by Third Parties

Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Partnership shall be entitled to assume that the General Partner has full power and authority to encumber, sell or otherwise use in any manner any and all assets of the Partnership and to enter into any contracts on behalf of the Partnership, and such Person shall be entitled to deal with the General Partner as if it were the Partnership’s sole party in interest, both legally and beneficially. Each Limited Partner hereby waives any and all defenses or other remedies which may be available against such Person to contest, negate or disaffirm any action of the General Partner in connection with any such dealing. In no event shall any Person dealing with the General Partner or its representatives be obligated to ascertain that the terms of this Agreement have been complied with or to inquire into the necessity or expedience of any act or action of the General Partner or its representatives. Each and every certificate, document or other instrument executed on behalf of the Partnership by the General Partner or its representatives shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (i) at the time of the execution and delivery of such certificate, document or instrument, this Agreement was in full force and effect, (ii) the Person executing and delivering such certificate, document or instrument was duly authorized and empowered to do so for and on behalf of the Partnership and (iii) such certificate, document or instrument was duly executed and delivered in accordance with the terms and provisions of this Agreement and is binding upon the Partnership.

ARTICLE 8.

RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS

Section 8.1 Limitation of Liability

The Limited Partners shall have no liability under this Agreement except as expressly provided in this Agreement or under the Act.

Section 8.2 Management of Business

No Limited Partner or Assignee (other than the General Partner, any of its Affiliates or any officer, director, employee, partner, agent or trustee of the General Partner, the Partnership or any of their Affiliates, in their capacity as such) shall take part in the operations, management or control (within the meaning of the Act) of the Partnership’s business transact any business in the Partnership’s name or have the power to sign documents for or otherwise bind the Partnership. The transaction of any such business by the General Partner, any of its Affiliates or any officer, director, employee, partner, agent or trustee of the General Partner, the Partnership or any of their Affiliates, in their capacity as such, shall not affect, impair or eliminate the limitations on the liability of the Limited Partners or Assignees under this Agreement.

 

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Section 8.3 Outside Activities of Limited Partners

Subject to any agreements entered into by a Limited Partner or its Affiliates with the General Partner, Partnership or a Subsidiary, any Limited Partner and any officer, director, employee, agent, trustee, Affiliate or stockholder of any Limited Partner shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Partnership, including business interests and activities in direct competition with the Partnership or that are enhanced by the activities of the Partnership. Neither the Partnership nor any Partners shall have any rights by virtue of this Agreement in any business ventures of any Limited Partner or Assignee. Subject to such agreements, none of the Limited Partners nor any other Person shall have any rights by virtue of this Agreement or the partnership relationship established hereby in any business ventures of any other Person, other than the Limited Partners benefiting from the business conducted by the General Partner, and such Person shall have no obligation pursuant to this Agreement to offer any interest in any such business ventures to the Partnership, any Limited Partner or any such other Person, even if such opportunity is of a character which, if presented to the Partnership, any Limited Partner or such other Person, could be taken by such Person.

Section 8.4 Return of Capital

Except pursuant to the rights of Redemption set forth in Section 8.6 , no Limited Partner shall be entitled to the withdrawal or return of his or her Capital Contribution, except to the extent of distributions made pursuant to this Agreement or upon termination of the Partnership as provided herein. Except as expressly set forth herein, no Limited Partner or Assignee shall have priority over any other Limited Partner or Assignee either as to the return of Capital Contributions or as to profits, losses, distributions or credits.

Section 8.5 Rights of Limited Partners Relating to the Partnership

A. In addition to other rights provided by this Agreement or by the Act, and except as limited by Section 8.5.C , each Limited Partner shall have the right, for a purpose reasonably related to such Limited Partner’s interest as a limited partner in the Partnership, upon written demand with a statement of the purpose of such demand and at such Limited Partner’s expense:

(1) to obtain a copy of the most recent annual and quarterly reports filed with the Securities and Exchange Commission by the General Partner pursuant to the Exchange Act, and each communication sent to the stockholders of the General Partner;

(2) to obtain a copy of the Partnership’s federal, state and local income tax returns for each Partnership Year;

(3) to obtain a current list of the name and last known business, residence or mailing address of each Partner;

 

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(4) to obtain a copy of this Agreement and the Certificate and all amendments thereto, together with executed copies of all powers of attorney pursuant to which this Agreement, the Certificate and all amendments thereto have been executed; and

(5) to obtain true and full information regarding the amount of cash and a description and statement of any other property or services contributed by each Partner and which each Partner has agreed to contribute in the future, and the date on which each became a Partner.

B. The Partnership shall notify each Limited Partner in writing of any adjustment made in the calculation of the REIT Shares Amount within a reasonable time after the date such change becomes effective.

C. Notwithstanding any other provision of this Section 8.5 , the General Partner may keep confidential from the Limited Partners, for such period of time as the General Partner determines in its sole and absolute discretion to be reasonable, any information that (i) the General Partner believes to be in the nature of trade secrets or other information the disclosure of which the General Partner in good faith believes is not in the best interests of the Partnership or (ii) the Partnership or the General Partner is required by law or by agreements with unaffiliated third parties to keep confidential.

Section 8.6 Limited Partner Redemption Rights

A. On or after the date fourteen (14) months after (i) the Effective Date, with respect to the Common Units acquired prior to, on or contemporaneously with the Effective Date, (ii) the Option Agreement Effective Date, with respect to the Common Units received pursuant to the Option Agreement, (iii) the ROFO Agreement Effective Date, with respect to the Common Units received pursuant to the ROFO Agreement, and (iv) the date of issuance of any other Common Units, in each case unless a different date is expressly provided in an agreement entered into between the Partnership and any Limited Partner, each Limited Partner shall have the right (subject to the terms and conditions set forth herein and in any other such agreement, as applicable) to require the Partnership to redeem all or a portion of the Common Units held by such Limited Partner (such Common Units being hereafter referred to as “ Tendered Units ”) in exchange for the Cash Amount (a “ Redemption ”); provided that the terms of such Common Units do not provide that such Common Units are not entitled to a right of Redemption. Unless otherwise expressly provided in this Agreement or in a separate agreement entered into between the Partnership and the holders of such Common Units, all Common Units shall be entitled to a right of Redemption hereunder. The Tendering Partner shall have no right, with respect to any Common Units so redeemed, to receive any distributions paid on or after the Specified Redemption Date. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Limited Partner who is exercising the right (the “ Tendering Partner ”). The Cash Amount shall be payable in accordance with the instructions set

 

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forth in the Notice of Redemption to the Tendering Partner within ten (10) days of the Specified Redemption Date, except as provided below.

B. REIT Share Election

(1) Notwithstanding Section 8.6.A above, if a Limited Partner has delivered to the General Partner a Notice of Redemption then the General Partner may, in its sole and absolute discretion, (subject to the limitations on ownership and transfer of REIT Shares set forth in the Charter) elect to acquire some or all of the Tendered Units from the Tendering Partner in exchange for the REIT Shares Amount (as of the Specified Redemption Date) and, if the General Partner so elects, the Tendering Partner shall sell the Tendered Units to the General Partner in exchange for the REIT Shares Amount. In such event, the Tendering Partner shall have no right to cause the Partnership to redeem such Tendered Units. The General Partner shall promptly give such Tendering Partner written notice of its election, and subject to Section 8.6.C below, the Tendering Partner may elect to withdraw its redemption request at any time prior to the receipt of cash pursuant to Section 8.6.A or REIT Shares Amount pursuant to this Section 8.6.B by such Tendering Partner.

(2) The REIT Shares Amount, if applicable, shall be delivered as duly authorized, validly issued, fully paid and nonassessable REIT Shares and, if applicable, free of any pledge, lien, encumbrance or restriction, other than those provided in the Charter, the Bylaws of the General Partner, the Securities Act, relevant state securities or blue sky laws and any applicable registration rights agreement with respect to such REIT Shares entered into by the Tendering Partner. Notwithstanding anything herein to the contrary, with respect to any Redemption pursuant to this Section 8.6 , the Tendering Partner shall continue to own all Tendered Units subject to any Redemption (and be treated as a Limited Partner, an Assignee or a Person who is the transferee of a Limited Partner Interest in a permitted transfer pursuant to Section 11.3 , as the case may be, with respect to such Tendered Units for all purposes of this Agreement) until such Tendered Units are Transferred to the Partnership and such Tendering Partner has received the Cash Amount or REIT Shares Amount, as the case may be, in exchange for such Tendered Units. Unless and until the Tendering Partner has received the REIT Shares Amount in exchange for such Tendered Units pursuant to this Section 8.6.B , the Tendering Partner shall have no rights as a stockholder of the General Partner with respect to the REIT Shares issuable in connection with such Redemption (including, without limitation, rights to vote or consent, receive dividends and exercise other rights).

In addition, the REIT Shares for which the Common Units might be exchanged shall also bear a legend which generally provides the following:

THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON BENEFICIAL AND CONSTRUCTIVE OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE CORPORATION’S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT

 

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TRUST (“REIT”) UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”). SUBJECT TO CERTAIN FURTHER RESTRICTIONS AND EXCEPT AS EXPRESSLY PROVIDED IN THE CORPORATION’S ARTICLES OF AMENDMENT AND RESTATEMENT, (i) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCK OF THE CORPORATION IN EXCESS OF 9.8% OF THE VALUE OF THE TOTAL OUTSTANDING SHARES OF CAPITAL STOCK OF THE CORPORATION AND NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF THE CORPORATION’S COMMON STOCK IN EXCESS OF 9.8% (BY VALUE OR BY NUMBER OF SHARES, WHICHEVER IS MORE RESTRICTIVE) OF THE OUTSTANDING COMMON STOCK OF THE CORPORATION; (ii) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCK THAT WOULD RESULT IN THE CORPORATION BEING “CLOSELY HELD” UNDER SECTION 856(h) OF THE CODE OR OTHERWISE CAUSE THE CORPORATION TO FAIL TO QUALIFY AS A REIT; AND (iii) NO PERSON MAY TRANSFER SHARES OF CAPITAL STOCK IF SUCH TRANSFER WOULD RESULT IN THE CAPITAL STOCK OF THE CORPORATION BEING OWNED BY FEWER THAN 100 PERSONS. ANY PERSON WHO BENEFICIALLY OR CONSTRUCTIVELY OWNS OR ATTEMPTS TO BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCK IN VIOLATION OF THE ABOVE LIMITATIONS MUST IMMEDIATELY NOTIFY THE CORPORATION. IF ANY OF THE RESTRICTIONS ON TRANSFER OR OWNERSHIP SET FORTH IN (i) OR (ii) IS VIOLATED, THE SHARES OF COMMON STOCK REPRESENTED HEREBY WILL BE AUTOMATICALLY TRANSFERRED TO THE TRUSTEE OF A TRUST FOR THE BENEFIT OF ONE OR MORE CHARITABLE BENEFICIARIES, AND ANY TRANSFER THAT WOULD RESULT IN THE CAPITAL STOCK OF THE CORPORATION BEING OWNED BY FEWER THAN 100 PERSONS SHALL BE VOID AB INITIO . IN ADDITION, THE CORPORATION MAY REDEEM SHARES UPON THE TERMS AND CONDITIONS SPECIFIED BY THE BOARD OF DIRECTORS IN ITS SOLE DISCRETION IF THE BOARD OF DIRECTORS DETERMINES THAT OWNERSHIP OR A TRANSFER OR OTHER EVENT MAY VIOLATE THE RESTRICTIONS DESCRIBED ABOVE. FURTHERMORE, UPON THE OCCURRENCE OF CERTAIN EVENTS, ATTEMPTED TRANSFERS IN VIOLATION OF THE RESTRICTIONS DESCRIBED ABOVE MAY BE VOID AB INITIO. ALL TERMS IN THIS LEGEND THAT ARE DEFINED IN THE CHARTER OF THE CORPORATION SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN THE CHARTER OF THE CORPORATION, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER AND OWNERSHIP, WILL BE FURNISHED TO EACH HOLDER OF SHARES OF COMMON STOCK ON REQUEST AND WITHOUT CHARGE. REQUESTS FOR SUCH A COPY MAY BE DIRECTED TO THE SECRETARY OF THE CORPORATION AT ITS PRINCIPAL OFFICE.

 

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C. Stock Offering Funding Option

(1)(a) Notwithstanding Section 8.6.A or Section 8.6.B above, if a Limited Partner has delivered to the General Partner a Notice of Redemption with respect to Excess Units, and (i) the number of Excess Units plus the number of Tendered Units such Limited Partner agrees to treat as Excess Units (the “ Offering Units ”) exceeds (A) 9.8% of the REIT Shares, calculated in accordance with the methodology for calculating the percentage of ownership of a Person for purposes of the ownership limit pursuant to Article VI of the Charter (subject to adjustment in connection with any Adjustment Event), and (B) $50,000,000 gross value based on a Partnership Unit price equal to the REIT Share Market Value, and (ii) the General Partner is eligible to file a registration statement under Form S-3 (or any successor form similar thereto), then the General Partner may, at its election, either (x) cause the Partnership to redeem the Offering Units with the proceeds of an offering, whether registered under the Securities Act or exempt from such registration, underwritten, offered and sold directly to investors or through agents or other intermediaries, or otherwise distributed (a “ Stock Offering Funding ”) of a number of REIT Shares (“ Offered Shares ”) equal to the REIT Shares Amount with respect to the Offering Units pursuant to the terms of this Section 8.6.C ; or (y) cause the Partnership to pay the Cash Amount with respect to the Excess Units pursuant to the terms of Section 8.6.A ; or (z) acquire the Excess Units in exchange for the REIT Shares Amount pursuant to the terms of Section 8.6.B , but only if the Tendering Partner provides the General Partner with any representations or undertakings which the General Partner has determined, in its sole and absolute discretion, are sufficient to prevent a violation of the Charter. In the event that the General Partner fails to give notice of its exercise of the election described in clause (i) above within the period of time specified in Section 8.6.B for an election to deliver the REIT Share Amount, it will be deemed to have elected not to purchase the Tendered Units through a Stock Offering Funding.

(b) In the event that the General Partner elects a Stock Offering Funding with respect to a Notice of Redemption, it may at such time give notice (a “ Single Funding Notice ”) of such election to all Limited Partners and require that all Limited Partners elect whether or not to effect a Redemption to be funded through such Stock Offering Funding. In the event a Limited Partner elects to effect such a Redemption, it shall give notice thereof and of the number of Common Units to be made subject thereto in writing to the General Partner within 10 Business Days after receipt of the Single Funding Notice, and such Limited Partner shall be treated as a Tendering Partner for all purposes of this Section 8.6.C . In the event that a Limited Partner does not so elect, it shall be deemed to have waived its right to effect a Redemption for the current Twelve-Month Period, except that it may effect a Redemption for no more than 1.0% of the REIT Shares, calculated in accordance with the methodology for calculating the percentage of ownership of a Person for purposes of the ownership limit pursuant to Article VI of the Charter (subject to adjustment in connection with any Adjustment Event) during such Twelve-Month Period.

 

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(2) In the event that the General Partner elects a Stock Offering Funding, on the Specified Redemption Date determined pursuant to the proviso in the definition thereof it shall purchase each Offering Unit that is still a Tendered Unit on such date for cash in immediately available funds in the amount equal to the lesser of (i) the Cash Amount per Common Unit, calculated pursuant to Section 8.6.A as of the original Specified Redemption Date assuming the General Partner did not elect to conduct a Stock Offering Funding pursuant to Section 8.6.C (the “ Base Amount ”) or (ii) the net proceeds per Offered Share received by the General Partner from the Stock Offering Funding, determined after deduction of reasonable expenses related thereto, including underwriting discounts and commissions, legal and accounting fees and expenses, Securities and Exchange Commission registration fees, state blue sky and securities laws fees and expenses, printing expenses, NASD filing fees and listing fees (the “ Net Proceeds ”).

(3) If the General Partner elects a Stock Offering Funding, the following additional terms and conditions shall apply:

(a) As soon as practicable after the General Partner gives the Tendering Partner notice of its election pursuant to Section 8.6.C(1)(a)(i) , the General Partner shall use its reasonable efforts to effect as promptly as possible a registration, qualification or compliance (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as would permit or facilitate the sale and distribution of the Offered Shares; provided , that , the General Partner shall not by reason hereof, be required to submit to jurisdiction or taxation, or qualify to do business in any jurisdiction in which such submission or qualification would not be otherwise required; provided , further , that if the General Partner shall deliver a certificate to the Tendering Partner stating that the General Partner has determined in the good faith judgment of the Board of Directors of the General Partner that such filing, registration or qualification would require disclosure of material non-public information, the disclosure of which would have a material adverse effect on the General Partner, then the General Partner may delay making any filing or delay the effectiveness of any registration or qualification for the shorter of (a) the period ending on the date upon which such information is disclosed to the public or ceases to be material or (b) an aggregate period of ninety (90) days in connection with any Stock Offering Funding.

(b) The General Partner shall advise each Tendering Partner, regularly and promptly upon any request, of the status of the Stock Offering Funding process, including the timing of all filings, the selection of and understandings with underwriters, agents, dealers and brokers, the nature and contents of all communications with the Securities and Exchange Commission and other governmental bodies, the expenses related to the Stock Offering Funding as they are being incurred, the nature of marketing activities, and any other matters reasonably related to the timing, price and expenses relating to the Stock Offering

 

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Funding and the compliance by the General Partner with its obligations with respect thereto. In addition, the General Partner and each Tendering Partner may, but shall be under no obligation to, enter into understandings in writing (“ Pricing Agreements ”) whereby the Tendering Partner will agree in advance as to the acceptability of a Net Proceeds amount at or below the Base Amount. Furthermore, the General Partner shall establish pricing notification procedures with each such Tendering Partner, such that the Tendering Partner will have the maximum opportunity practicable to determine whether to become a Withdrawing Partner pursuant to Section 8.6.C(3)(c) below.

(c) The General Partner, upon notification of the price per REIT Share in the Stock Offering Funding from the managing underwriter(s), in the case of a registered public offering, or lead placement agent(s), in the event of an unregistered offering, engaged by the General Partner in order to sell the Offered Shares, shall immediately use its reasonable efforts to notify each Tendering Partner of the price per REIT Share in the Stock Offering Funding and resulting Net Proceeds. Each Tendering Partner shall have one hour (as such time may be extended by the General Partner) to elect to withdraw its Redemption (a Tendering Partner making such an election being a “ Withdrawing Partner ”), and Common Units with a REIT Shares Amount equal to such excluded Offered Shares shall be considered to be withdrawn from the related Redemption; provided , however , that if Tendering Partners withdraw in excess of 20% of the Offered Shares, all Offered Shares will, at the General Partner’s option, be deemed to have been withdrawn by all Tendering Partners. If a Tendering Partner, within such time period, does not notify the General Partner of such Tendering Partner’s election not to become a Withdrawing Partner, then such Tendering Partner shall, except as otherwise provided in a Pricing Agreement, be deemed not to have withdrawn from the Redemption, without liability to the General Partner. To the extent that the General Partner is unable to notify any Tendering Partner, such unnotified Tendering Partner shall, except as otherwise provided in any Pricing Agreement, be deemed not to have elected to become a Withdrawing Partner. Each Tendering Partner whose Redemption is being funded through the Stock Offering Funding who does not become a Withdrawing Partner shall have the right, subject to the approval of the managing underwriter(s) or placement agent(s) and restrictions of any applicable securities laws, to submit for Redemption additional Common Units in a number no greater than the number of Common Units withdrawn. If more than one Tendering Partner so elects to redeem additional Common Units, then such Common Units shall be redeemed on a pro rata basis, based on the number of additional Common Units sought to be so redeemed. To the extent that the Net Proceeds would be below the Base Amount, and to the extent that other Partners have not elected to redeem additional Common Units, then the Withdrawing Partners shall bear their pro rata shares of the expenses described in Section 8.6.C(2) (such shares calculated as if such Limited Partners had not been Withdrawing Partners) as reasonably determined by the General Partner.

(d) The General Partner shall take all reasonable action in order to effectuate the sale of the Offered Shares including, but not limited to, the entering into of an underwriting or placement agreement in customary form with the managing underwriter(s) or

 

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placement agent(s) selected for such underwriting by the General Partner. Notwithstanding any other provision of this Agreement, if the managing underwriter(s) or placement agent(s) advises the General Partner in writing that marketing factors require a limitation of the number of shares to be offered, then the General Partner shall so advise all Tendering Partners and the number of Common Units to be sold to the General Partner pursuant to the Redemption shall be allocated among all Tendering Partners in proportion, as nearly as practicable, to the respective number of Common Units as to which each Tendering Partner elected to effect a Redemption. No Offered Shares excluded from the underwriting by reason of the managing underwriter’s or placement agent’s marketing limitation shall be included in such offering.

(e) The General Partner may include securities for its own account in any offering made pursuant to Section 8.6.C.1 and, if the managing underwriter or placement agent has not limited the number of Registrable Shares to be offered, the General Partner may include securities for the account of others in such offering, in each case only if and to the extent that the managing underwriter or placement agent, the General Partner and Tendering Partners owning Common Units representing at least seventy-five percent (75%) of the Common Units with respect to which the Stock Offering Funding is being effected so agree in writing.

D. Each Limited Partner covenants and agrees with the General Partner that all Tendered Units shall be delivered to the General Partner free and clear of all liens, claims and encumbrances whatsoever and should any such liens, claims and/or encumbrances exist or arise with respect to such Tendered Units, the General Partner shall be under no obligation to acquire the same. Each Limited Partner further agrees that, in the event any state or local property transfer tax is payable as a result of the transfer of its Tendered Units to the General Partner (or its designee), such Limited Partner shall assume and pay such transfer tax.

E. Notwithstanding the provisions of Section 8.6.A , 8.6.B , 8.6.C or any other provision of this Agreement, a Limited Partner (i) shall not be entitled to effect a Redemption for cash pursuant to Section 8.6.A or an exchange for REIT Shares pursuant to Section 8.6.B to the extent the ownership or right to acquire REIT Shares pursuant to such exchange by such Partner on the Specified Redemption Date could cause such Partner or any other Person, or, in the opinion of counsel selected by the General Partner, may cause such Partner or any other Person, to violate the restrictions on ownership and transfer of REIT Shares set forth in the Charter and (ii) shall have no rights under this Agreement to acquire REIT Shares which would otherwise be prohibited under the Charter. The limitation set forth in Section 8.6.E(i) above shall not limit the ability of a Limited Partner to require a Stock Offering Funding pursuant to the terms of Section 8.6.C if (A) the Offering Units exceed (a) 9.8% of the REIT Shares, calculated in accordance with the methodology for calculating the percentage of ownership of a Person for purposes of the ownership limit pursuant to Article VI of the Charter (subject to adjustment in connection with any Adjustment Event) and (b) $50,000,000 gross value based on a Common Unit price equal to the REIT Share Market Value, and (B) the General Partner is eligible to file a registration statement under Form S-3 (or any successor form similar thereto). To the extent any attempted

 

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Redemption or exchange for REIT Shares would be in violation of this Section 8.6.E , it shall be null and void ab initio and such Limited Partner shall not acquire any rights or economic interest in the cash otherwise payable upon such Redemption or the REIT Shares otherwise issuable upon such exchange.

F. Notwithstanding anything herein to the contrary (but subject to Section 8.6.E , with respect to any Redemption or exchange for REIT Shares pursuant to this Section 8.6 ):

(1) All Common Units acquired by the General Partner pursuant thereto shall automatically, and without further action required, be converted into and deemed to be General Partner Interests comprised of the same number and class of Common Units.

(2) Without the consent of the General Partner, each Limited Partner may not effect a Redemption for less than 1,000 Common Units or, if the Limited Partner holds less than 1,000 Common Units, all of the Common Units held by such Limited Partner.

(3) Without the consent of the General Partner, each Limited Partner may not effect a Redemption during the period after the Partnership Record Date with respect to a distribution and before the record date established by the General Partner for a distribution to its common stockholders of some or all of its portion of such distribution.

(4) Notwithstanding anything herein to the contrary, in the event the General Partner gives notice to all Limited Partners (a “ Primary Offering Notice ”) that it desires to effect a primary offering of its equity securities for cash (other than an offering in connection with a merger, consolidation or similar transaction, or employee benefit or similar plans) then, unless the General Partner otherwise consents, the actions described in Section 8.6.C as to a Stock Offering Funding with respect to any Notice of Redemption with respect to Excess Units thereafter received may be delayed until the earlier of (a) the completion of the primary offering or (b) 120 days following the giving of the Primary Offering Notice; provided that , to the extent that the managing underwriter(s) of such primary offering advise that the inclusion of such additional REIT Shares will not adversely affect the offering, additional REIT Shares the proceeds of which are to be used to satisfy a Redemption with respect to such Excess Units (a “ Subsequent Redemption ”) (without regard to the limitations of subparagraph (2) of this paragraph F) shall be included in such offering, and the procedures of this Section 8.6 shall otherwise be followed as closely as practicable; provided , further that a Primary Offering Notice may be given no more than twice in any Twelve-Month Period without the Consent of the Limited Partners.

(5) The General Partner may delay a Stock Offering Funding, such that it will not occur (a) during the same Twelve-Month Period as the General Partner has effected a “Demand Registration” pursuant to the Registration Rights Agreements dated as of October 27, 2004, among the General Partner and certain Limited Partners (it being understood that in the event a Notice of Redemption is received prior to the receipt of requisite requests for a Demand

 

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Registration, such Notice of Redemption shall control, and vice versa) or (b) within 120 days following the closing of any prior public offering of similar securities by the General Partner.

(6) The consummation of any Redemption or exchange for REIT Shares shall be subject to the expiration or termination of the applicable waiting period, if any, under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

(7) Each Tendering Partner shall continue to own all Common Units subject to any Redemption or exchange for REIT Shares, and be treated as a Limited Partner with respect to such Common Units for all purposes of this Agreement, until such Common Units are transferred to the General Partner and paid for or exchanged on the Specified Redemption Date. Until a Specified Redemption Date, and provided the General Partner has issued REIT shares pursuant to Section 8.6.B , the Tendering Partner shall have no rights as a stockholder of the General Partner with respect to such Tendering Partner’s Common Units.

G. Notwithstanding the provisions of this Section 8.6 permitting the General Partner to delay a Public Offering Funding by virtue of an event described in Section 8.6.C , the giving of a Primary Offering Notice, or a delay referred to in Section 8.6.F(5) , the General Partner shall use its reasonable efforts to take all such actions, as are consistent with the purposes of such delay provisions, to effect a Stock Offering Funding at the earliest time practicable. It is understood that such periods of delay shall run, to the extent practicable, concurrently, and shall not limit the right of a Limited Partner to deliver a Notice of Redemption.

H. In the event that the Partnership issues additional Partnership Interests to any Additional Limited Partner pursuant to Section 4.3.B , the General Partner shall make such revisions to this Section 8.6 as it determines are necessary to reflect the issuance of such additional Partnership Interests.

Section 8.7 Conversion of Profits Interest Units.

A. A Profits Interest Unitholder shall have the right (the “ Conversion Right ”), at his or her option, at any time to convert all or a portion of his or her Vested Profits Interest Units into Common Units; provided , however , that a holder may not exercise the Conversion Right for less than one thousand (1,000) Vested Profits Interest Units or, if such holder holds less than one thousand Vested Profits Interest Units, all of the Vested Profits Interest Units held by such holder. Profits Interest Unitholders shall not have the right to convert Unvested Profits Interest Units into Common Units until they become Vested Profits Interest Units; provided , however , that when a Profits Interest Unitholder is notified of the expected occurrence of an event that will cause his or her Unvested Profits Interest Units to become Vested Profits Interest Units, such Profits Interest Unitholder may give the Partnership a Conversion Notice conditioned upon and effective as of the time of vesting and such Conversion Notice, unless subsequently revoked by the Profits Interest Unitholder, shall be accepted by the Partnership subject to such condition. In all cases, the conversion of any Profits Interest Units into Common Units shall be subject to the conditions and procedures set forth in this Section 8.7 .

 

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B. A holder of Vested Profits Interest Units may convert such Units into an equal number of fully paid and non-assessable Common Units, giving effect to all adjustments (if any) made pursuant to Section 4.5 . Notwithstanding the foregoing, in no event may a holder of Vested Profits Interest Units convert a number of Vested Profits Interest Units that exceeds (x) the Economic Capital Account Balance of such Limited Partner, to the extent attributable to his or her ownership of Profits Interest Units, divided by (y) the Common Unit Economic Balance, in each case as determined as of the effective date of conversion (the “ Capital Account Limitation ”). In order to exercise his or her Conversion Right, a Profits Interest Unitholder shall deliver a notice (a “ Conversion Notice ”) in the form attached as Exhibit G to the Partnership (with a copy to the General Partner) not less than 10 nor more than 60 days prior to a date (the “ Conversion Date ”) specified in such Conversion Notice; provided , however , that if the General Partner has not given to the Profits Interest Unitholders notice of a proposed or upcoming Transaction (as defined below) at least thirty (30) days prior to the effective date of such Transaction, then Profits Interest Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Transaction or (y) the third Business Day immediately preceding the effective date of such Transaction. A Conversion Notice shall be provided in the manner provided in Section 15.1 . Each Profits Interest Unitholder covenants and agrees with the Partnership that all Vested Profits Interest Units to be converted pursuant to this Section 8.7.A shall be free and clear of all liens. Notwithstanding anything herein to the contrary, a holder of Profits Interest Units may deliver a Redemption Notice pursuant to Section 8.6.A relating to those Common Units that will be issued to such holder upon conversion of such Profits Interest Units into Common Units in advance of the Conversion Date; provided , however , that the redemption of such Common Units by the Partnership shall in no event take place until on or after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put a Profits Interest Unitholder in a position where, if he or she so wishes, the Common Units into which his or her Vested Profits Interest Units will be converted can be redeemed by the Partnership pursuant to Section 8.6.A simultaneously with such conversion, with the further consequence that, if the Company elects to assume the Partnership’s redemption obligation with respect to such Common Units under Section 8.6.B by delivering to such holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to him or her simultaneously with the conversion of his or her Vested Profits Interest Units into Common Units. The General Partner shall cooperate with a Profits Interest Unitholder to coordinate the timing of the different events described in the foregoing sentence.

C. The Partnership, at any time at the election of the General Partner, may cause any number of Vested Profits Interest Units held by a Profits Interest Unitholder to be converted (a “ Forced Conversion ”) into an equal number of Common Units, giving effect to all adjustments (if any) made pursuant to Section 4.5 ; provided , however , that the Partnership may not cause a Forced Conversion of any Profits Interest Units that would not at the time be eligible for conversion at the option of such Profits Interest Unitholder pursuant to Section 8.7.B . In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “ Forced Conversion Notice ”) in the form attached as Exhibit H to the applicable Profits Interest

 

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Unitholder not less than 10 nor more than 60 days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 15.1 .

D. A conversion of Vested Profits Interest Units for which the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such Profits Interest Unitholder, as of which time such Profits Interest Unitholder shall be credited on the books and records of the Partnership with the issuance as of the opening of business on the next day of the number of Common Units issuable upon such conversion. After the conversion of Profits Interest Units as aforesaid, the Partnership shall deliver to such Profits Interest Unitholder, upon his or her written request, a certificate of the General Partner certifying the number of Common Units and remaining Profits Interest Units, if any, held by such person immediately after such conversion. The Assignee of any Limited Partner pursuant to Article 11 may exercise the rights of such Limited Partner pursuant to this Section 8.7 and such Limited Partner shall be bound by the exercise of such rights by the Assignee.

E. For purposes of making future allocations under Section 6.2.C and applying the Capital Account Limitation, the portion of the Economic Capital Account Balance of the applicable Profits Interest Unitholder that is treated as attributable to his or her Profits Interest Units shall be reduced, as of the date of conversion, by the product of the number of Profits Interest Units converted and the Common Unit Economic Balance.

F. If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, unit exchange, self tender offer for all or substantially all Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event) in each case as a result of which Common Units shall be exchanged for or converted into the right, or the Holders shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “ Transaction ”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of Profits Interest Units then eligible for conversion, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or, if applicable, at a value determined by the General Partner in good faith using the value attributed to the Common Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction). In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each Profits Interest Unitholder to be afforded the right to receive in connection with such Transaction in consideration for the Common Units into which his or her Profits Interest Units will be converted the same kind and amount of cash, securities and other property (or any combination thereof) receivable upon the consummation of such Transaction by a Holder of the same number of

 

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Common Units, assuming such Holder is not a Person with which the Partnership consolidated or into which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “ Constituent Person ”), or an Affiliate of a Constituent Person. In the event that Holders have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each Profits Interest Unitholder of such election, and shall use commercially reasonable efforts to afford the Profits Interest Unitholders the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of each Profits Interest Unit held by such holder into Common Units in connection with such Transaction. If a Profits Interest Unitholder fails to make such an election, such holder (and any of its transferees) shall receive upon conversion of each Profits Interest Unit held by him or her (or by any of his or her transferees) the same kind and amount of consideration that a Holder would receive if such Holder failed to make such an election. Subject to the rights of the Partnership and the Company under any Vesting Agreement and the relevant terms of any applicable Stock Plan, the Partnership shall use commercially reasonable effort to cause the terms of any Transaction to be consistent with the provisions of this Section 8.7.F and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any Profits Interest Unitholders whose Profits Interest Units will not be converted into Common Units in connection with the Transaction that will (i) contain provisions enabling the holders of Profits Interest Units that remain outstanding after such Transaction to convert their Profits Interest Units into securities as comparable as reasonably possible under the circumstances to the Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement for the benefit of the Profits Interest Unitholders.

Section 8.8 Voting Rights of Profits Interest Units

Profits Interest Unitholders shall (a) have those voting rights required from time to time by applicable law, if any, (b) have the same voting rights as a Holder, with the Profits Interest Units voting as a single class with the Common Units and having one vote per Profits Interest Unit; and (c) have the additional voting rights that are expressly set forth below. So long as any Profits Interest Units remain outstanding, the Partnership shall not, without the affirmative vote of the holders of at least a majority of the Profits Interest Units outstanding at the time, given in person or by proxy, either in writing or at a meeting (voting separately as a class), amend, alter or repeal, whether by merger, consolidation or otherwise, the provisions of the Agreement applicable to Profits Interest Units so as to materially and adversely affect any right, privilege or voting power of the Profits Interest Units or the Profits Interest Unitholders as such, unless such amendment, alteration, or repeal affects equally, ratably and proportionately the rights, privileges and voting powers of the holders of Common Units; but subject, in any event, to the following provisions: (i) with respect to any Transaction, so long as the Profits Interest Units are treated in accordance with Section 8.7.F , the consummation of such Transaction shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers of the Profits Interest Units or the Profits Interest Unitholders as such; and (ii) any

 

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creation or issuance of any Partnership Units or of any class or series of Partnership Interest including without limitation additional Partnership Units or Profits Interest Units, whether ranking senior to, junior to, or on a parity with the Profits Interest Units with respect to distributions and the distribution of assets upon liquidation, dissolution or winding up, shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers of the Profits Interest Units or the Profits Interest Unitholders as such. The foregoing voting provisions will not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required will be effected, all outstanding Profits Interest Units shall have been converted into Common Units.

ARTICLE 9.

BOOKS, RECORDS, ACCOUNTING AND REPORTS

Section 9.1 Records and Accounting

The General Partner shall keep or cause to be kept at the principal office of the Partnership appropriate books and records with respect to the Partnership’s business, including without limitation, all books and records necessary to provide to the Limited Partners any information, lists and copies of documents required to be provided pursuant to Section 9.3 . Any records maintained by or on behalf of the Partnership in the regular course of its business may be kept on, or be in the form of any information storage device, provided , that the records so maintained are convertible into clearly legible written form within a reasonable period of time. The books of the Partnership shall be maintained, for financial and tax reporting purposes, on an accrual basis in accordance with generally accepted accounting principles.

Section 9.2 Fiscal Year

The fiscal year of the Partnership shall be the calendar year.

Section 9.3 Reports

A. As soon as practicable, but in no event later than 105 days after the close of each Partnership Year, or such earlier date as they are filed with the Securities and Exchange Commission, the General Partner shall cause to be mailed to each Limited Partner as of the close of the Partnership Year, an annual report containing financial statements of the Partnership, or of the General Partner if such statements are prepared solely on a consolidated basis with the General Partner, for such Partnership Year, presented in accordance with generally accepted accounting principles, such statements to be audited by a nationally recognized firm of independent public accountants selected by the General Partner.

B. As soon as practicable, but in no event later than 45 days after the close of each calendar quarter (except the last calendar quarter of each year), or such earlier date as they are filed with the Securities and Exchange Commission, the General Partner shall cause to be mailed to each Limited Partner as of the last day of the calendar quarter, a report containing unaudited

 

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financial statements of the Partnership, or of the General Partner, if such statements are prepared solely on a consolidated basis with the applicable law or regulation, or as the General Partner determines to be appropriate.

Section 9.4 Nondisclosure of Certain Information

Notwithstanding the provisions of Sections 9.1 and 9.3 , the General Partner may keep confidential from the Limited Partners any information that the General Partner believes to be in the nature of trade secrets or other information the disclosure of which the General Partner in good faith believes is not in the best interest of the Partnership or which the Partnership is required by law or by agreements with unaffiliated third parties to keep confidential.

ARTICLE 10.

TAX MATTERS

Section 10.1 Preparation of Tax Returns

The General Partner shall arrange for the preparation and timely filing of all returns of Partnership income, gains, deductions, losses and other items required of the Partnership for federal and state income tax purposes and shall use all reasonable efforts to furnish, within 120 days of the close of each taxable year, the tax information reasonably required by Limited Partners for federal and state income tax reporting purposes. Each Limited Partner shall promptly provide the General Partner with any information reasonably requested by the General Partner relating to any Contributed Property contributed (directly or indirectly) by such Limited Partner to the Partnership.

Section 10.2 Tax Elections

Except as otherwise provided herein, the General Partner shall, in its sole and absolute discretion, determine whether to make any available election pursuant to the Code, including the election under Section 754 of the Code. The General Partner shall have the right to seek to revoke any such election (including without limitation, any election under Section 754 of the Code) upon the General Partner’s determination in its sole and absolute discretion that such revocation is the best interests of the Partners.

Section 10.3 Tax Matters Partner

A. The General Partner shall be the “ tax matters partner ” of the Partnership for federal income tax purposes. Pursuant to Section 6230(e) of the Code, upon receipt of notice from the IRS of the beginning of an administrative proceeding with respect to the Partnership, the tax matters partner shall furnish the IRS with the name, address and profit interest of each of the Limited Partners and Assignees; provided , however , that such information is provided to the Partnership by the Limited Partners and Assignees.

 

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B. The tax matters partner is authorized, but not required:

(1) to enter into any settlement with the IRS with respect to any administrative or judicial proceedings for the adjustment of Partnership items required to be taken into account by a Partner for income tax purposes (such administrative proceedings being referred to as a “ tax audit ” and such judicial proceedings being referred to as “ judicial review ”), and in the settlement agreement the tax matters partner may expressly state that such agreement shall bind all Partners, except that such settlement agreement shall not bind any Partner (i) who (within the time prescribed pursuant to the Code and Regulations) files a statement with the IRS providing that the tax matters partner shall not have the authority to enter into a settlement agreement on behalf of such Partner or (ii) who is a “ notice partner ” (as defined in Section 6231 of the Code) or a member of a “ notice group ” (as defined in Section 6223(b)(2) of the Code);

(2) in the event that a notice of a final administrative adjustment at the Partnership level of any item required to be taken into account by a Partner for tax purposes (a “ final adjustment ”) is mailed to the tax matters partner, to seek judicial review of such final adjustment, including the filing of a petition for readjustment with the Tax Court or the United States Claims Court, or the filing of a complaint for refund with the District Court of the United States for the district in which the Partnership’s principal place of business is located;

(3) to intervene in any action brought by any other Partner for judicial review of a final adjustment;

(4) to file a request for an administrative adjustment with the IRS at any time and, if any part of such request is not allowed by the IRS, to file an appropriate pleading (petition or complaint) for judicial review with respect to such request;

(5) to enter into an agreement with the IRS to extend the period for assessing any tax which is attributable to any item required to be taken into account by a Partner for tax purposes, or an item affected by such item; and

(6) to take any other action on behalf of the Partners of the Partnership in connection with any tax audit or judicial review proceeding to the extent permitted by applicable law or regulations.

The taking of any action and the incurring of any expense by the tax matters partner in connection with any such proceeding, except to the extent required by law, is a matter in the sole and absolute discretion of the tax matters partner and the provisions relating to indemnification of the General Partner set forth in Section 7.7 shall be fully applicable to the tax matters partner in its capacity as such.

C. The tax matters partner shall receive no compensation for its services. All third party costs and expenses incurred by the tax matters partner in performing its duties as such (including legal and accounting fees) shall be borne by the Partnership. Nothing herein shall be

 

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construed to restrict the Partnership from engaging an accounting firm or law firm to assist the tax matters partner in discharging its duties hereunder, so long as the compensation paid by the Partnership for such services is reasonable.

Section 10.4 Organizational Expenses

The Partnership shall elect to deduct expenses, if any, incurred by it in organizing the Partnership ratably over a 60-month period as provided in Section 709 of the Code.

Section 10.5 Withholding

Each Limited Partner hereby authorizes the Partnership to withhold from or pay on behalf of or with respect to such Limited Partner any amount of federal, state, local, or foreign taxes that the General Partner determines that the Partnership is required to withhold or pay with respect to any amount distributable or allocable to such Limited Partner pursuant to this Agreement, including, without limitation, any taxes required to be withheld or paid by the Partnership pursuant to Sections 1441, 1442, 1445 or 1446 of the Code. Any amount paid on behalf of or with respect to a Limited Partner shall constitute a receivable of the Partnership from such Limited Partner, which receivable shall be paid by such Limited Partner within 15 days after notice from the General Partner that such payment must be made unless (i) the Partnership withholds such payment from a distribution which would otherwise be made to the Limited Partner or (ii) the General Partner determines, in its sole and absolute discretion, that such payment may be satisfied out of the available funds of the Partnership which would, but for such payment, be distributed to the Limited Partner. Any amounts withheld pursuant to the foregoing clauses (i) or (ii) shall be treated as having been distributed to such Limited Partner. Each Limited Partner hereby unconditionally and irrevocably grants to the Partnership a security interest in such Limited Partner’s Partnership Interest to secure such Limited Partner’s obligation to pay to the Partnership any amounts required to be paid pursuant to this Section 10.5 . Any amounts payable by a Limited Partner hereunder shall bear interest at the base rate on corporate loans at large United States money center commercial banks, as published from time to time in the Wall Street Journal , plus two percentage points (but not higher than the maximum lawful rate) from the date such amount is due ( i.e. , 15 days after demand) until such amount is paid in full. Each Limited Partner shall take such actions as the Partnership or the General Partner shall request in order to perfect or enforce the security interest created hereunder.

ARTICLE 11.

TRANSFERS AND WITHDRAWALS

Section 11.1 Transfer

A. The term “ transfer ,” when used in this Article 11 with respect to a Partnership Interest, shall be deemed to refer to a transaction by which the General Partner purports to assign its General Partner Interest to another Person or by which a Limited Partner purports to assign its Limited Partner Interest to another Person, and includes a sale, assignment, gift (outright or in

 

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trust), pledge, encumbrance, hypothecation, mortgage, exchange or any other disposition by law or otherwise. The term “transfer” when used in this Article 11 does not include any Redemption or exchange for REIT Shares pursuant to Section 8.6 except as otherwise provided herein. No part of the interest of a Limited Partner shall be subject to the claims of any creditor, any spouse for alimony or support, or to legal process, and may not be voluntarily or involuntarily alienated or encumbered except as may be specifically provided for in this Agreement or consented to by the General Partner.

B. No Partnership Interest shall be transferred, in whole or in part, except in accordance with the terms and conditions set forth in this Article 11 . Any transfer or purported transfer of a Partnership Interest not made in accordance with this Article 11 shall be null and void ab initio unless otherwise consented to by the General Partner in its sole and absolute discretion.

Section 11.2 Transfer of General Partner’s Partnership Interest

A. Except in connection with a Termination Transaction permitted under Section 11.2.B , the General Partner shall not withdraw from the Partnership and shall not transfer all or any portion of its interest in the Partnership (whether by sale, statutory merger or consolidation, liquidation or otherwise), other than to an Affiliate, without the Consent of the Limited Partners, which may be given or withheld by each Limited Partner in its sole and absolute discretion, and only upon the admission of a successor General Partner pursuant to Section 12.1 . Upon any transfer of a Partnership Interest in accordance with the provisions of this Section 11.2 , the transferee shall become a substitute General Partner for all purposes herein, and shall be vested with the powers and rights of the transferor General Partner, and shall be liable for all obligations and responsible for all duties of the General Partner, once such transferee has executed such instruments as may be necessary to effectuate such admission and to confirm the agreement of such transferee to be bound by all the terms and provisions of this Agreement with respect to the Partnership Interest so acquired. It is a condition to any transfer otherwise permitted hereunder that the transferee assumes, by operation of law or express agreement, all of the obligations of the transferor General Partner under this Agreement with respect to such transferred Partnership Interest, and no such transfer (other than pursuant to a statutory merger or consolidation wherein all obligations and liabilities of the transferor General Partner are assumed by a successor corporation by operation of law) shall relieve the transferor General Partner of its obligations under this Agreement without the Consent of the Limited Partners, in their reasonable discretion. In the event the General Partner withdraws from the Partnership, in violation of this Agreement or otherwise, or otherwise dissolves or terminates, or upon the Incapacity of the General Partner, all of the remaining Partners may elect to continue the Partnership business by selecting a substitute General Partner in accordance with the Act.

B. The General Partner shall not engage in any merger, consolidation or other combination with or into another person, sale of all or substantially all of its assets or any reclassification, recapitalization or change of its outstanding equity interests (“ Termination

 

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Transaction ”) unless (1) the Termination Transaction has been approved by a Consent of the Partners and (2) either clause (a) or (b) below is satisfied:

(a) in connection with such Termination Transaction all Limited Partners either will receive, or will have the right to elect to receive, for each Common Unit an amount of cash, securities, or other property equal to the product of the REIT Shares Amount and the greatest amount of cash, securities or other property paid to a holder of one REIT Share in consideration of one REIT Share in connection with the Termination Transaction; provided , that , if, in connection with the Termination Transaction, a purchase, tender or exchange offer shall have been made to and accepted by the holders of more than fifty percent (50%) of the outstanding REIT Shares, each Holder of Common Units shall receive, or shall have the right to elect to receive, the greatest amount of cash, securities, or other property which such holder would have received had it exercised its right to Redemption (as set forth in Section 8.6 ) and received REIT Shares in exchange for its Common Units immediately prior to the expiration of such purchase, tender or exchange offer and had thereupon accepted such purchase, tender or exchange offer and then such Termination Transaction shall have been consummated; or

(b) the following conditions are met: (i) substantially all of the assets directly or indirectly owned by the surviving entity are held directly or indirectly by the Partnership or another limited partnership or limited liability company which is the survivor of a merger, consolidation or combination of assets with the Partnership (in each case, the “ Surviving Partnership ”); (ii) the holders of Common-Equivalent Units own a percentage interest of the Surviving Partnership based on the relative fair market value of the net assets of the Partnership and the other net assets of the Surviving Partnership immediately prior to the consummation of such transaction; (iii) the rights, preferences and privileges of such holders in the Surviving Partnership are at least as favorable as those in effect immediately prior to the consummation of such transaction and as those applicable to any other limited partners or non-managing members of the Surviving Partnership; and (iv) such rights of the Limited Partners include at least one of the following: (a) the right to redeem their interests in the Surviving Partnership for the consideration available to such persons pursuant to Section 11.2.B(a) ; or (b) the right to redeem their Common Units for cash on terms equivalent to those in effect with respect to their Common Units immediately prior to the consummation of such transaction, or, if the ultimate controlling person of the Surviving Partnership has publicly traded common equity securities, such common equity securities, with an exchange ratio based on the determination of relative fair market value of such securities and the REIT Shares.

Section 11.3 Limited Partners’ Rights to Transfer

A. Prior to the twelve (12) month anniversary of the Effective Date, no Limited Partner shall transfer all or any portion of its Partnership Interest to any transferee without the consent of the General Partner, which consent may be withheld in its sole and absolute discretion, or exercise its right of Redemption set forth in Section 8.6 ; provided , however , that any Limited Partner may, at any time (whether prior to or after such twelve (12) month

 

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anniversary), without the consent of the General Partner, other than by way of exercise of the right of Redemption set forth in Section 8.6 , (i) transfer all or any portion of its Partnership Interest to the General Partner, (ii) transfer all or any portion of its Partnership Interest to an Immediate Family Member, subject to the provisions of Section 11.6 , (iii) transfer all or any portion of its Partnership Interest to a trust for the benefit of a charitable beneficiary or to a charitable foundation, subject to the provisions of Section 11.6 , and (iv) subject to the provisions of Section 11.6 , pledge (a “ Pledge ”) all or any portion of its Partnership Interest to a lending institution, which is not an Affiliate of such Limited Partner, as collateral or security for a bona fide loan or other extension of credit with a scheduled maturity date not sooner than the twelve (12) month anniversary of the Effective Date, and transfer such pledged Partnership Interest to such lending institution in connection with the exercise of remedies under such loan or extension or credit, and the transfer of such pledged Partnership Interest by the lender to any transferee. After such twelve (12) month anniversary, each Limited Partner or Assignee (resulting from a transfer made pursuant to clauses (i)-(iv) of the proviso of the preceding sentence) shall have the right to transfer all or any portion of its Partnership Interest, subject to the provisions of Section 11.6 and the satisfaction of each of the following conditions (in addition to the right of each such Limited Partner or Assignee (A) to continue to make any such transfer permitted by clauses (i)-(iv) of such proviso or (B) to make any transfer to its Affiliates or members, in each case, without satisfying condition (1) below):

(1) General Partner Right of First Refusal . The transferring Partner shall give written notice of the proposed transfer to the General Partner, which notice shall state (i) the identity of the proposed transferee, and (ii) the amount and type of consideration proposed to be received for the transferred Partnership Units. The General Partner shall have ten (10) days upon which to give the transferring Partner notice of its election to acquire the Partnership Units on the proposed terms. If it so elects, it shall purchase the Partnership Units on such terms within ten (10) days after giving notice of such election. If it does not so elect, the transferring Partner may transfer such Partnership Units to a third party, on economic terms no more favorable to the transferee than the proposed terms, subject to the other conditions of this Section 11.3 .

(2) Qualified Transferee . Any transfer of a Partnership Interest shall be made only to Qualified Transferees.

It is a condition to any transfer otherwise permitted hereunder that the transferee assumes by operation of law or express agreement all of the obligations of the transferor Limited Partner under this Agreement with respect to such transferred Partnership Interest and no such transfer (other than pursuant to a statutory merger or consolidation wherein all obligations and liabilities of the transferor Partner are assumed by a successor corporation by operation of law) shall relieve the transferor Partner of its obligations under this Agreement without the approval of the General Partner, in its reasonable discretion. Notwithstanding the foregoing, any transferee of any transferred Partnership Interest shall be subject to any and all ownership limitations contained in the Charter, which may limit or restrict such transferee’s ability to exercise its Redemption rights, and to the representations in Section 3.4 . Any transferee,

 

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whether or not admitted as a Substituted Limited Partner, shall take subject to the obligations of the transferor hereunder. Unless admitted as a Substituted Limited Partner in accordance with Section 11.4.B , no transferee, whether by a voluntary transfer, by operation of law or otherwise, shall have any rights hereunder, other than the rights of an Assignee as provided in and in compliance with Section 11.5 .

B. If a Limited Partner is subject to Incapacity, the executor, administrator, trustee, committee, guardian, conservator, or receiver of such Limited Partner’s estate shall have all the rights of a Limited Partner, but not more rights than those enjoyed by other Limited Partners, for the purpose of settling or managing the estate, and such power as the Incapacitated Limited Partner possessed to transfer all or any part of his or its interest in the Partnership. The Incapacity of a Limited Partner, in and of itself, shall not dissolve or terminate the Partnership.

C. The General Partner may prohibit any transfer otherwise permitted under Section 11.3 by a Limited Partner of his or her Partnership Units if, in the opinion of legal counsel to the Partnership, such transfer would require the filing of a registration statement under the Securities Act by the Partnership or would otherwise violate any federal or state securities laws or regulations applicable to the Partnership or the Partnership Units.

Section 11.4 Substituted Limited Partners

A. No Limited Partner shall have the right to substitute a transferee as a Limited Partner in his or her place (including any transferee permitted by Section 11.3 ). The General Partner shall, however, have the right to consent to the admission of a transferee of the interest of a Limited Partner pursuant to this Section 11.4 as a Substituted Limited Partner, which consent may be given or withheld by the General Partner in its sole and absolute discretion. The General Partner’s failure or refusal to permit a transferee of any such interests to become a Substituted Limited Partner shall not give rise to any cause of action against the Partnership or any Partner.

B. A transferee who has been admitted as a Substituted Limited Partner in accordance with this Article 11 shall have all the rights and powers and be subject to all the restrictions and liabilities of a Limited Partner under this Agreement. The admission of any transferee as a Substituted Limited Partner shall be subject to the transferee executing and delivering to the Partnership an acceptance of all of the terms and conditions of this Agreement (including without limitation, the provisions of Section 2.4 and such other documents or instruments as may be required to effect the admission, each in form and substance satisfactory to the General Partner) and the acknowledgment by such transferee that each of the representations and warranties set forth in Section 3.4 are true and correct with respect to such transferee as of the date of the transfer of the Partnership Interest to such transferee and will continue to be true to the extent required by such representations and warranties.

C. Upon the admission of a Substituted Limited Partner, the General Partner shall amend Exhibit A to reflect the name, address, number of Partnership Units, and Percentage

 

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Interest of such Substituted Limited Partner and to eliminate or adjust, if necessary, the name, address and interest of the predecessor of such Substituted Limited Partner.

Section 11.5 Assignees

If the General Partner, in its sole and absolute discretion, does not consent to the admission of any permitted transferee under Section 11.3 as a Substituted Limited Partner, as described in Section 11.4 , such transferee shall be considered an Assignee for purposes of this Agreement. An Assignee shall be entitled to all the rights of an assignee of a limited partnership interest under the Act, including the right to receive distributions from the Partnership and the share of Net Income, Net Losses, gain and loss attributable to the Partnership Units assigned to such transferee, the rights to transfer the Partnership Units provided in this Article 11 and the right of Redemption provided in Section 8.6 , but shall not be deemed to be a Holder of Partnership Units for any other purpose under this Agreement, and shall not be entitled to effect a Consent with respect to such Partnership Units on any matter presented to the Limited Partners for approval (such Consent remaining with the transferor Limited Partner). In the event any such transferee desires to make a further assignment of any such Partnership Units, such transferee shall be subject to all the provisions of this Article 11 to the same extent and in the same manner as any Limited Partner desiring to make an assignment of Partnership Units. Notwithstanding anything contained in this Agreement to the contrary, as a condition to becoming an Assignee, any prospective Assignee must first execute and deliver to the Partnership an acknowledgment that each of the representations and warranties set forth in Section 3.4 are true and correct with respect to such prospective Assignee as of the date of the prospective assignment of the Partnership Interest to such prospective Assignee and will continue to be true to the extent required by such representations or warranties.

Section 11.6 General Provisions

A. No Limited Partner may withdraw from the Partnership other than as a result of (i) a permitted transfer of all of such Limited Partner’s Partnership Units in accordance with this Article 11 and the transferee(s) of such Partnership Units being admitted to the Partnership as a Substituted Limited Partner or (ii) pursuant to the exercise of its right of Redemption of all of such Limited Partner’s Partnership Units under Section 8.6 ; provided that after such transfer, exchange or redemption such Limited Partner owns no Partnership Interest.

B. Any Limited Partner who shall transfer all of such Limited Partner’s Partnership Units in a transfer permitted pursuant to this Article 11 where such transferee was admitted as a Substituted Limited Partner or pursuant to the exercise of its rights of Redemption of all of such Limited Partner’s Partnership Units under Section 8.6 shall cease to be a Limited Partner; provided that after such transfer, exchange or redemption such Limited Partner owns no Partnership Interest.

C. Transfers pursuant to this Article 11 may only be made on the first day of a fiscal quarter of the Partnership, unless the General Partner otherwise agrees.

 

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D. If any Partnership Interest is transferred, assigned or redeemed during any quarterly segment of the Partnership’s Partnership Year in compliance with the provisions of this Article 11 or transferred, redeemed or converted pursuant to Sections 8.6 , 21.4 , 21.8 , 22.4 , 22.8 , 23.4 or 23.8 on any day other than the first day of a Partnership Year, then Net Income, Net Losses, each item thereof and all other items attributable to such Partnership Interest for such Partnership Year shall be divided and allocated between the transferor Partner and the transferee Partner by taking into account their varying interests during the Partnership Year using a method selected by the General Partner that is in accordance with the Code. Except as otherwise agreed by the General Partner, all distributions of Available Cash with respect to which the Partnership Record Date is before the date of such transfer, assignment, exchange or redemption shall be made to the transferor Partner, and all distributions of Available Cash thereafter, in the case of a transfer or assignment other than a redemption, shall be made to the transferee Partner.

E. In addition to any other restrictions on transfer herein contained, including without limitation the provisions of this Article 11 and Section 2.6 , in no event may any transfer or assignment of a Partnership Interest by any Partner (including pursuant to a Redemption or exchange for REIT Shares by the Partnership or the General Partner) be made (i) to any person or entity who lacks the legal right, power or capacity to own a Partnership Interest; (ii) in violation of applicable law; (iii) except with the consent of the General Partner, which may be given or withheld in its sole and absolute discretion, of any component portion of a Partnership Interest, such as the Capital Account, or rights to distributions, separate and apart from all other components of a Partnership Interest; (iv) except with the consent of the General Partner, which may be given or withheld in its sole and absolute discretion, if in the opinion of legal counsel to the Partnership such transfer could cause a termination of the Partnership for federal or state income tax purposes (except as a result of the Redemption or exchange for REIT Shares of all Common Units held by all Limited Partners or pursuant to a transaction expressly permitted under Section 11.2 ); (v) if in the opinion of counsel to the Partnership such transfer could cause the Partnership to cease to be classified as a partnership for federal income tax purposes (except as a result of the Redemption or exchange for REIT Shares of all Common Units held by all Limited Partners); (vi) if such transfer could, in the opinion of counsel to the Partnership, cause the Partnership to become, with respect to any employee benefit plan subject to Title I of ERISA, a “party-in-interest” (as defined in Section 3(14) of ERISA) or a “disqualified person” (as defined in Section 4975(e) of the Code); (vii) if such transfer could, in the opinion of counsel to the Partnership, cause any portion of the assets of the Partnership to constitute assets of any employee benefit plan pursuant to Department of Labor Regulations Section 2510.2-101; (viii) if such transfer requires the registration of such Partnership Interest pursuant to any applicable federal or state securities laws; (ix) except with the consent of the General Partner, which may be given or withheld in its sole and absolute discretion, if such transfer (1) could be treated as effectuated through an “established securities market” or a “secondary market” (or the substantial equivalent thereof) within the meaning of Section 7704 of the Code, (2) could cause the Partnership to become a “Publicly Traded Partnership,” as such term is defined in Sections 469(k)(2) or 7704(b) of the Code, (3) could be in violation of Section 3.4.E(5) , or (4) could cause the Partnership to fail one or more of the Safe Harbors (as defined below); (x) if such transfer

 

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subjects the Partnership to be regulated under the Investment Company Act of 1940, the Investment Advisors Act of 1940 or the Employee Retirement Income Security Act of 1974, each as amended; (xi) except with the consent of the General Partner, which may be given or withheld in its sole discretion, if the transferee or Assignee of such Partnership Interest is unable to make the representations set forth in Section 3.4.C ; (xii) if such transfer is made to a lender to the Partnership or any Person who is related (within the meaning of Section 1.752-4(b) of the Regulations) to any lender to the Partnership whose loan constitutes a Nonrecourse Liability, except with the consent of the General Partner, which may be given or withheld in its sole and absolute discretion; and provided , that , as a condition to granting such consent the lender may be required to enter into an arrangement with the Partnership and the General Partner to redeem or exchange for the REIT Shares Amount any Partnership Units in which a security interest is held simultaneously with the time at which such lender would be deemed to be a partner in the Partnership for purposes of allocating liabilities to such lender under Section 752 of the Code; or (xiii) if in the opinion of legal counsel for the Partnership such transfer could adversely affect the ability of the General Partner to continue to qualify as a REIT or, except with the consent of the General Partner, which may be given or withheld in its sole and absolute discretion, subject the General Partner to any additional taxes under Section 857 or Section 4981 of the Code.

F. The General Partner shall monitor the transfers of interests in the Partnership (including any acquisition of Common Units by the Partnership or the General Partner) to determine (i) if such interests could be treated as being traded on an “established securities market” or a “secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code and (ii) whether such transfers of interests could result in the Partnership being unable to qualify for the “safe harbors” set forth in Regulations Section 1.7704-1 (or such other guidance subsequently published by the IRS setting forth safe harbors under which interests will not be treated as “readily tradable on a secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code) (the “ Safe Harbors ”). The General Partner shall have the authority (but shall not be required) to take any steps it determines are necessary or appropriate in its sole and absolute discretion to prevent any trading of interests which could cause the Partnership to become a “publicly traded partnership,” within the meaning of Code Section 7704, or any recognition by the Partnership of such transfers, or to insure that one or more of the Safe Harbors is met.

ARTICLE 12.

ADMISSION OF PARTNERS

Section 12.1 Admission of Successor General Partner

A successor to all of the General Partner’s General Partner Interest pursuant to Section 11.2 who is proposed to be admitted as a successor General Partner shall be admitted to the Partnership as the General Partner, effective upon such transfer. Any such transferee shall carry on the business of the Partnership without dissolution. In each case, the admission shall be subject to the successor General Partner executing and delivering to the Partnership an

 

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acceptance of all of the terms and conditions of this Agreement and such other documents or instruments as may be required to effect the admission. In the case of such admission on any day other than the first day of a Partnership Year, all items attributable to the General Partner Interest for such Partnership Year shall be allocated between the transferring General Partner and such successor as provided in Article 11 .

Section 12.2 Admission of Additional Limited Partners

A. After the admission to the Partnership of the initial Limited Partners on the date hereof, a Person who makes a Capital Contribution to the Partnership in accordance with this Agreement shall be admitted to the Partnership as an Additional Limited Partner only upon furnishing to the General Partner (i) evidence of acceptance in form satisfactory to the General Partner of all of the terms and conditions of this Agreement, including, without limitation, the power of attorney granted in Section 2.4 and (ii) such other documents or instruments as may be required in the discretion of the General Partner in order to effect such Person’s admission as an Additional Limited Partner.

B. Notwithstanding anything to the contrary in this Section 12.2 , no Person shall be admitted as an Additional Limited Partner without the consent of the General Partner, which consent may be given or withheld in the General Partner’s sole and absolute discretion. The admission of any Person as an Additional Limited Partner shall become effective on the date upon which the name of such Person is recorded on the books and records of the Partnership, following the receipt of the Capital Contribution in respect of such Limited Partner and the consent of the General Partner to such admission. If any Additional Limited Partner is admitted to the Partnership on any day other than the first day of a Partnership Year, then Net Income, Net Losses, each item thereof and all other items allocable among Partners and Assignees for such Partnership Year shall be allocated among such Limited Partner and all other Partners and Assignees by taking into account their varying interests during the Partnership Year using a method selected by the General Partner that is in accordance with the Code. Except as otherwise agreed to by the Additional Limited Partners and the General Partner, all distributions of Available Cash with respect to which the Partnership Record Date is before the date of such admission shall be made solely to Partners and Assignees other than the Additional Limited Partner (other than in its capacity as an Assignee) and all distributions of Available Cash thereafter shall be made to all Partners and Assignees including such Additional Limited Partner.

Section 12.3 Amendment of Agreement and Certificate of Limited Partnership

For the admission to the Partnership of any Partner, the General Partner shall take all steps necessary and appropriate under the Act to amend the records of the Partnership and, if necessary, to prepare as soon as practical an amendment of this Agreement (including an amendment of Exhibit A ) and, if required by law, shall prepare and file an amendment to the Certificate and may for this purpose exercise the power of attorney granted pursuant to Section 2.4 .

 

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ARTICLE 13.

DISSOLUTION AND LIQUIDATION

Section 13.1 Dissolution

The Partnership shall not be dissolved by the admission of Substituted Limited Partners or Additional Limited Partners or by the admission of a successor General Partner in accordance with the terms of this Agreement. Upon the withdrawal of the General Partner, any successor General Partner (selected as described in Section 13.1.B below) shall continue the business of the Partnership. The Partnership shall dissolve, and its affairs shall be wound up, upon the first to occur of any of the following (each a “ Liquidating Event ”):

A. the expiration of its term as provided in Section 2.5 ;

B. an event of withdrawal of the General Partner, as defined in the Act, unless, within 90 days after the withdrawal, all of the remaining Partners agree in writing, in their sole and absolute discretion, to continue the business of the Partnership and to the appointment, effective as of the date of withdrawal, of a substitute General Partner;

C. subject to compliance with Section 11.2 an election to dissolve the Partnership made by the General Partner, in its sole and absolute discretion;

D. entry of a decree of judicial dissolution of the Partnership pursuant to the provisions of the Act;

E. any sale or other disposition of all or substantially all of the assets of the Partnership or a related series of transactions that, taken together, result in the sale or other disposition of all or substantially all of the assets of the Partnership;

F. the Incapacity of the General Partner, unless all of the remaining Partners in their sole and absolute discretion agree in writing to continue the business of the Partnership and to the appointment, effective as of a date prior to the date of such Incapacity, of a substitute General Partner;

G. the Redemption or exchange for REIT Shares of all Partnership Interests (other than those of the General Partner) pursuant to this Agreement; or

H. a final and non-appealable judgment is entered by a court of competent jurisdiction ruling that the General Partner is bankrupt or insolvent, or a final and non-appealable order for relief is entered by a court with appropriate jurisdiction against the General Partner, in each case under any federal or state bankruptcy or insolvency laws as now or hereafter in effect, unless prior to the entry of such order or judgment all of the remaining Partners agree in writing to continue the business of the Partnership and to the appointment, effective as of a date prior to the date of such order or judgment, of a substitute General Partner.

 

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Section 13.2 Winding Up

A. Upon the occurrence of a Liquidating Event, the Partnership shall continue solely for the purposes of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors and Partners. No Partner shall take any action that is inconsistent with, or not necessary to or appropriate for, the winding up of the Partnership’s business and affairs. The General Partner (or, in the event there is no remaining General Partner, any Person elected by a Majority in Interest of the Limited Partners (the “ Liquidator ”)) shall be responsible for overseeing the winding-up and dissolution of the Partnership and shall take full account of the Partnership’s liabilities and property and the Partnership property shall be liquidated as promptly as is consistent with obtaining the fair value thereof, and the proceeds therefrom (which may, to the extent determined by the General Partner, include shares of stock in the General Partner) shall be applied and distributed in the following order:

(1) First, to the payment and discharge of all of the Partnership’s debts and liabilities to creditors other than the Partners;

(2) Second, to the payment and discharge of all of the Partnership’s debts and liabilities to the General Partner;

(3) Third, to the payment and discharge of all of the Partnership’s debts and liabilities to the other Partners; and

(4) The balance, if any, to the General Partner and Limited Partners in accordance with their positive Capital Account balances, determined after taking into account all Capital Account adjustments for all prior periods and the Partnership taxable year during which the liquidation occurs (other than those made as a result of the liquidating distribution set forth in this Section 13.2.A(4) ).

The General Partner shall not receive any additional compensation for any services performed pursuant to this Article 13 other than reimbursement of its expenses as provided in Section 7.4 .

B. Notwithstanding the provisions of Section 13.2.A which require liquidation of the assets of the Partnership, but subject to the order of priorities set forth therein, if prior to or upon dissolution of the Partnership the Liquidator determines that an immediate sale of part or all of the Partnership’s assets would be impractical or would cause undue loss to the Partners, the Liquidator may, in its sole and absolute discretion, defer for a reasonable time the liquidation of any assets except those necessary to satisfy liabilities of the Partnership (including to those Partners as creditors) and/or distribute to the Partners, in lieu of cash, as tenants in common and in accordance with the provisions of Section 13.2.A , undivided interests in such Partnership assets as the Liquidator deems not suitable for liquidation. Any such distributions in-kind shall be made only if, in the good faith judgment of the Liquidator, such distributions in-kind are in the best interest of the Partners, and shall be subject to such conditions relating to the disposition and management of such Properties as the Liquidator deems reasonable and equitable and to any

 

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agreements governing the operation of such Properties at such time. The Liquidator shall determine the fair market value of any property distributed in kind using such reasonable method of valuation as it may adopt.

Section 13.3 Capital Contribution Obligation

If any Partner has a deficit balance in his or her Capital Account (after giving effect to all contributions, distributions and allocations for the taxable years, including the year during which such liquidation occurs), such Partner shall have no obligation to make any contribution to the capital of the Partnership with respect to such deficit, and such deficit at any time shall not be considered a Debt owed to the Partnership or to any other Person for any purpose whatsoever, except to the extent otherwise expressly agreed to by such Partner and the Partnership.

Section 13.4 Compliance with Timing Requirements of Regulations

In the discretion of the Liquidator or the General Partner, a pro rata portion of the distributions that would otherwise be made to the General Partner and Limited Partners pursuant to this Article 13 may be:

(1) distributed to a trust established for the benefit of the General Partner and Limited Partners for the purposes of liquidating Partnership assets, collecting amounts owed to the Partnership, and paying any contingent or unforeseen liabilities or obligations of the Partnership or of the General Partner arising out of or in connection with the Partnership. The assets of any such trust shall be distributed to the General Partner and Limited Partners from time to time, in the reasonable discretion of the Liquidator or the General Partner, in the same proportions and the amount distributed to such trust by the Partnership would otherwise have been distributed to the General Partner and Limited Partners pursuant to this Agreement; or

(2) withheld or escrowed to provide a reasonable reserve for Partnership liabilities (contingent or otherwise) and to reflect the unrealized portion of any installment obligations owed to the Partnership, provided , that such withheld or escrowed amounts shall be distributed to the General Partner and Limited Partners in the manner and priority set forth in Section 13.2.A as soon as practicable.

Section 13.5 Deemed Distribution and Recontribution

Notwithstanding any other provision of this Article 13 , in the event the Partnership is liquidated within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g) but no Liquidating Event has occurred, the Partnership’s property shall not be liquidated, the Partnership’s liabilities shall not be paid or discharged, and the Partnership’s affairs shall not be wound up. Instead, the Partnership shall be deemed to have contributed all of its assets and liabilities to a new partnership in exchange for an interest in the new partnership. Immediately thereafter, the Partnership shall be deemed to distribute interests in the new partnership to the

 

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General Partner and Limited Partners in proportion to their respective interests in the Partnership in liquidation of the Partnership.

Section 13.6 Rights of Limited Partners

Except as otherwise provided in this Agreement, each Limited Partner shall look solely to the assets of the Partnership for the return of his Capital Contribution and shall have no right or power to demand or receive property from the General Partner. No Limited Partner shall have priority over any other Limited Partner as to the return of his Capital Contributions, distributions or allocations.

Section 13.7 Notice of Dissolution

In the event a Liquidating Event occurs or an event occurs that would, but for provisions of Section 13.1 , result in a dissolution of the Partnership, the General Partner shall, within 30 days thereafter, provide written notice thereof to each of the Partners and to all other parties with whom the Partnership regularly conducts business (as determined in the discretion of the General Partner) and shall publish notice thereof in a newspaper of general circulation in each place in which the Partnership regularly conducts business (as determined in the discretion of the General Partner).

Section 13.8 Cancellation of Certificate of Limited Partnership

Upon the completion of the liquidation of the Partnership cash and property as provided in Section 13.2 , the Partnership shall be terminated and the Certificate and all qualifications of the Partnership as a foreign limited partnership in jurisdictions other than the State of Maryland shall be cancelled and such other actions as may be necessary to terminate the Partnership shall be taken.

Section 13.9 Reasonable Time for Winding-Up

A reasonable time shall be allowed for the orderly winding-up of the business and affairs of the Partnership and the liquidation of its assets pursuant to Section 13.2 , in order to minimize any losses otherwise attendant upon such winding-up, and the provisions of this Agreement shall remain in effect between the Partners during the period of liquidation.

Section 13.10 Waiver of Partition

Each Partner hereby waives any right to partition of the Partnership property.

 

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ARTICLE 14.

AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS

Section 14.1 Amendments

A. The actions requiring consent or approval of the Partners or of the Limited Partners pursuant to this Agreement, including Section 7.3 , or otherwise pursuant to applicable law, are subject to the procedures in this Article 14 .

B. Amendments to this Agreement requiring the consent or approval of Limited Partners may be proposed by the General Partner or by Limited Partners holding twenty-five percent (25%) or more of the Partnership Interests held by Limited Partners. The General Partner shall seek the written consent of the Limited Partners on the proposed amendment or shall call a meeting to vote thereon and to transact any other business that it may deem appropriate. For purposes of obtaining a written consent, the General Partner may require a response within a reasonable specified time, but not less than 15 days, and failure to respond in such time period shall constitute a consent which is consistent with the General Partner’s recommendation (if so recommended) with respect to the proposal; provided , that , an action shall become effective at such time as requisite consents are received even if prior to such specified time.

Section 14.2 Action by the Partners

A. Meetings of the Partners may be called by the General Partner and shall be called upon the receipt by the General Partner of a written request by Limited Partners holding twenty-five percent (25%) or more of the Partnership Interests held by Limited Partners. The notice shall state the nature of the business to be transacted. Notice of any such meeting shall be given to all Partners not less than seven days nor more than 30 days prior to the date of such meeting. Partners may vote in person or by proxy at such meeting. Whenever the vote or Consent of the Limited Partners or of the Partners is permitted or required under this Agreement, such vote or Consent may be given at a meeting of Partners or may be given in accordance with the procedure prescribed in Section 14.1 .

B. Any action required or permitted to be taken at a meeting of the Partners may be taken without a meeting if a written consent setting forth the action so taken is signed by the percentage as is expressly required by this Agreement for the action in question. Such consent may be in one instrument or in several instruments, and shall have the same force and effect as a vote of the Percentage Interests of the Partners (expressly required by this Agreement). Such consent shall be filed with the General Partner. An action so taken shall be deemed to have been taken at a meeting held on the effective date so certified.

C. Each Limited Partner may authorize any Person or Persons to act for him by proxy on all matters in which a Limited Partner is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. Every proxy must be signed by

 

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the Limited Partner or his attorney-in-fact. No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the Limited Partner executing it.

D. Each meeting of Partners shall be conducted by the General Partner or such other Person as the General Partner may appoint pursuant to such rules for the conduct of the meeting as the General Partner or such other Person deems appropriate.

E. On matters on which Limited Partners are entitled to vote, each Limited Partner shall have a vote equal to the number of Partnership Units held.

ARTICLE 15.

GENERAL PROVISIONS

Section 15.1 Addresses and Notice

Any notice, demand, request or report required or permitted to be given or made to a Partner or Assignee under this Agreement shall be in writing and shall be deemed given or made when delivered in person or when sent by first class United States mail or by other means of written communication to the Partner or Assignee at the address set forth in Exhibit A or such other address as the Partners shall notify the General Partner in writing.

Section 15.2 Titles and Captions

All article or section titles or captions in this Agreement are for convenience only. They shall not be deemed part of this Agreement and in no way define, limit, extend or describe the scope or intent of any provisions hereof. Except as specifically provided otherwise, references to “Articles” and “Sections” are to Articles and Sections of this Agreement.

Section 15.3 Pronouns and Plurals

Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.

Section 15.4 Further Action

The parties shall execute and deliver all documents, provide all information and take or refrain from taking action as may be necessary or appropriate to achieve the purposes of this Agreement.

 

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Section 15.5 Binding Effect

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.

Section 15.6 Creditors

Other than as expressly set forth herein with respect to Indemnitees, none of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Partnership.

Section 15.7 Waiver

No failure or delay by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon any breach thereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition.

Section 15.8 Counterparts

This Agreement may be executed in counterparts, all of which together shall constitute one agreement binding on all the parties hereto, notwithstanding that all such parties are not signatories to the original or the same counterpart. Each party shall become bound by this Agreement immediately upon affixing its signature hereto.

Section 15.9 Applicable Law

This Agreement shall be construed in accordance with and governed by the laws of the State of Maryland, without regard to the principles of conflicts of law.

Section 15.10 Invalidity of Provisions

If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby. The failure of any amendment to this Agreement to be effective as to any particular Limited Partner shall not render it ineffective as to any other Limited Partner.

Section 15.11 Entire Agreement

This Agreement contains the entire understanding and agreement among the Partners with respect to the subject matter hereof and supersedes any other prior written or oral understandings or agreements among them with respect thereto.

 

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Section 15.12 No Rights as Stockholders

Nothing contained in this Agreement shall be construed as conferring upon the holders of Partnership Units any rights whatsoever as stockholders of the General Partner, including without limitation any right to receive dividends or other distributions made to stockholders of the General Partner or to vote or to consent or to receive notice as stockholders in respect of any meeting of stockholders for the election of directors of the General Partner or any other matter.

ARTICLE 16.

[INTENTIONALLY OMITTED]

ARTICLE 17.

[INTENTIONALLY OMITTED]

ARTICLE 18.

CLASS C PROFITS INTEREST UNITS

Section 18.1 Designation and Number

A series of Partnership Units in the Partnership designated as the Class C Profits Interest Units (the “ Class C Units ”) is hereby established. Pursuant to Section 4.5 of this Agreement, the General Partner may from time to time issue Class C Units to Persons who provide services to or for the benefit of the Partnership or as otherwise permitted by the Plan, for such consideration or for no consideration as the General Partner may determine to be appropriate, and admit such Persons as Limited Partners . The number of Class C Units shall be determined from time to time by the General Partner in accordance with the terms of the Plan.

Section 18.2 Terms of Class C Units

A. General . Each Class C Unit that has satisfied the Class C Units Performance Condition shall be treated in the same manner as a Profits Interest Unit which has no separate class designation with all of the rights, privileges and obligations attendant thereto and all references to Profits Interest Units in this Agreement shall refer equally to Class C Units. During such time as any Class C Unit has not satisfied the Class C Units Performance Condition, each such Unit shall be treated in the same manner as a Profits Interest Unit which has no separate class designation except the following provisions shall apply:

B. Distributions . The holder of such Class C Unit shall not be entitled to receive any distributions with respect to such Class C Unit, except in accordance with Section 5.3 or Section 13.2 ;

C. Allocations . The holder of such Class C Unit shall not be entitled to receive allocations of Net Income or Net Loss of the Partnership (or items thereof) with respect to such

 

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Class C Unit, other than the special allocation of gain set forth in Section 6.2.C and the allocations set forth in Section 6.2.D , Section 6.3 and Section 6.4 ;

D. Conversion . Except as set forth below in Sections 18.2.D(1)– (4) , the provisions of Section 4.5.C(f) and Section 8.7 shall not apply with respect to such Class C Unit:

(1) When a Class C Unitholder is notified of the expected occurrence of an event that will cause such Class C Unit to become a Vested Profits Interest Unit, such Class C Unitholder may give the Partnership a Conversion Notice with respect to such Unit conditioned upon and effective as of the time of vesting, and such Conversion Notice, unless subsequently revoked by the Class C Unitholder, shall be accepted by the Partnership subject to such condition.

(2) Upon the expected occurrence of an event that will cause such Class C Unit to become a Vested Profits Interest Unit, the Partnership may issue a Forced Conversion Notice with respect to such Unit conditioned upon and effective on or after the time of vesting of such Unit.

(3) In the event that a Transaction would constitute a Class C Units Change in Control and would result in the Class C Units Performance Condition being satisfied with respect to such Class C Unit, then for purposes of Section 8.7.F , references to a Profits Interest Unit shall include any such Class C Unit.

(4) In all cases, the conversion of such Class C Unit in accordance with this Section 18.2.D and pursuant to the applicable provisions of Section 8.7 shall be subject to the conditions and procedures set forth in Section 8.7 .

E. Percentage Interests . Notwithstanding the designation of Percentage Interests in Exhibit A to this Agreement, for the Partners who hold such Class C Units, the Percentage Interest of each Partner with respect to such Class C Units shall be zero, and such Class C Units shall be disregarded for purposes of calculating the Percentage Interest of the Partners, in each case solely for the purposes set forth in subparagraphs (1) and (2) below. Accordingly, Exhibit A to this Agreement shall reflect two Percentage Interests for each Partner owning such Class C Units, one which reflects the Percentage Interests assigned to such Class C Units and one which reflects the assignment of a zero Percentage Interest to such Class C Units. The Percentage Interest of each Partner who holds such Class C Units, with respect to such Units, shall be zero solely for purposes of:

(1) The provisions of this Agreement regarding distributions to the Partners, except the distributions made in accordance with Section 5.3 or Section 13.2 .

(2) The provisions of this Agreement regarding the allocation of Net Income or Net Loss of the Partnership (or items thereof) with respect to the Class C Units, other than the allocations set forth in Section 6.2.C , Section 6.2.D and Section 6.3 .

 

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ARTICLE 19.

CLASS D PROFITS INTEREST UNITS

Section 19.1 Designation and Number

A series of Partnership Units in the Partnership designated as the Class D Profits Interest Units (the “ Class D Units ”) is hereby established. Pursuant to Section 4.5 of this Agreement, the General Partner may from time to time issue Class D Units to Persons who provide services to or for the benefit of the Partnership or as otherwise permitted by the Plan, for such consideration or for no consideration as the General Partner may determine to be appropriate, and admit such Persons as Limited Partners . The number of Class D Units shall be determined from time to time by the General Partner in accordance with the terms of the Plan.

Section 19.2 Terms of Class D Units

A. General . Each Class D Unit that has become a Class D Performance Vested Unit shall be treated in the same manner as a Profits Interest Unit which has no separate class designation with all of the rights, privileges and obligations attendant thereto and all references to Profits Interest Units in this Agreement shall refer equally to Class D Units. During such time as any Class D Unit has not become a Class D Performance Vested Unit, each such Unit shall be treated in the same manner as a Profits Interest Unit which has no separate class designation except the following provisions shall apply:

B. Distributions . The holder of a Class D Unit shall not be entitled to receive any distributions with respect to such Class D Unit, except (i) in accordance with Section 5.3 or Section 13.2 and (ii) at such times as distributions are made with respect to Common Units pursuant to Section 5.1, a holder of a Class D Unit shall be entitled to receive a distribution with respect to such Class D Unit in an amount equal to the product of the distribution per Profits Interest Unit made to holders of Common Units on the Partnership Record Date with respect to such distribution multiplied by the Class D Units Sharing Percentage;

C. Allocations . The holder of such Class D Unit shall not be entitled to receive allocations of Net Income or Net Loss of the Partnership (or items thereof) with respect to such Class D Unit, other than (i) the special allocation of gain set forth in Section 6.2.C and the allocations set forth in Section 6.2.D , Section 6.3 and Section 6.4 and (ii) allocations of Net Income and Net Loss pursuant to Sections 6.2.A and 6.2.B , treating, for purposes of such allocations, each Class D Unit as a fraction of one outstanding Common Unit equal to one Common Unit multiplied by the Class D Units Sharing Percentage;

D. Conversion . Except as set forth below in Sections 19.2.D(1)– (4) , the provisions of Section 4.5.C(f) and Section 8.7 shall not apply with respect to such Class D Unit:

(1) When a Class D Unitholder is notified of the expected occurrence of an event that will cause such Class D Unit to become a Vested Profits Interest Unit, such Class D Unitholder may give the Partnership a Conversion Notice with respect to such Unit conditioned

 

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upon and effective as of the time of vesting, and such Conversion Notice, unless subsequently revoked by the Class D Unitholder, shall be accepted by the Partnership subject to such condition.

(2) Upon the expected occurrence of an event that will cause such Class D Unit to become a Vested Profits Interest Unit, the Partnership may issue a Forced Conversion Notice with respect to such Unit conditioned upon and effective on or after the time of vesting of such Unit.

(3) In the event that a Transaction would constitute a Class D Units Change in Control and would result in such Class D Unit becoming a Class D Performance Vested Unit, then for purposes of Section 8.7.F , references to a Profits Interest Unit shall include any such Class D Unit.

(4) In all cases, the conversion of such Class D Unit in accordance with this Section 19.2.D and pursuant to the applicable provisions of Section 8.7 shall be subject to the conditions and procedures set forth in Section 8.7 .

E. Percentage Interests . Notwithstanding the designation of Percentage Interests in Exhibit A to this Agreement, for the purposes set forth in subparagraphs (1) and (2) below, the Percentage Interest of each Partner holding Class D Units with respect to such Class D Units shall equal the Percentage Interest of a Partner who holds an equivalent number of Common Units multiplied by the Class D Units Sharing Percentage (the “ Class D Unitholder Percentage Interest ”). Accordingly, Exhibit A to this Agreement shall reflect two Percentage Interests for each Partner owning such Class D Units, one which reflects the Percentage Interests assigned to such Class D Units and one which reflects the Class D Unitholder Percentage Interest. The Percentage Interest of each Partner who holds such Class D Units, with respect to such Units, shall equal the Class D Unitholder Percentage Interest for purposes of:

(1) The provisions of this Agreement regarding distributions to the Partners, except the distributions made in accordance with Section 5.3 or Section 13.2 .

(2) The provisions of this Agreement regarding the allocation of Net Income or Net Loss of the Partnership (or items thereof) with respect to the Class D Units, other than the allocations set forth in Section 6.2.C , Section 6.2.D , Section 6.3 and Section 6.4 .

ARTICLE 20.

[INTENTIONALLY OMITTED]

 

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ARTICLE 21.

SERIES E PREFERRED UNITS

Section 21.1 Designation and Number

A series of Partnership Units in the Partnership designated as the “7.000% Series E Cumulative Redeemable Preferred Units” (the “ Series E Preferred Units ”) is hereby established, with the rights, priorities and preferences set forth herein. The number of Series E Preferred Units shall be 11,500,000.

Section 21.2 Distributions

A. Payment of Distributions . Subject to the rights of Holders of Parity Preferred Units as to the payment of distributions, pursuant to Section 5.1, the General Partner, as holder of the Series E Preferred Units, will be entitled to receive, when, as and if declared by the Partnership acting through the General Partner, out of Available Cash, cumulative preferential cash distributions in an amount equal to the Series E Priority Return. Such distributions shall be cumulative, shall accrue from the original date of issuance and will be payable (i) quarterly (such quarterly periods for purposes of payment and accrual will be the quarterly periods ending on the dates specified in this sentence and not calendar quarters) in arrears, on the last calendar day of March, June, September and December, of each year commencing on December 30, 2011, and, (ii), in the event of a redemption of Series E Preferred Units, on the redemption date (each a “ Series E Preferred Unit Distribution Payment Date ”). If any date on which distributions are to be made on the Series E Preferred Units is not a Business Day, then payment of the distribution to be made on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date.

B. Distributions Cumulative . Notwithstanding the foregoing, distributions on the Series E Preferred Units will accrue whether or not the terms and provisions set forth in Section 21.2.C at any time prohibit the current payment of distributions, whether or not the Partnership has earnings, whether or not there are funds legally available for the payment of such distributions and whether or not such distributions are authorized.

C. Priority as to Distributions

(1) Except as provided in Section 21.2.C(2) below, no distributions shall be declared and paid or declared and set apart for payment and no other distribution of cash or other property may be declared and made on or with respect to any Parity Preferred Unit or Junior Unit as to distributions (other than a distribution paid in Junior Units as to distributions and upon liquidation) for any period, nor shall any Junior Units or Parity Preferred Units as to distributions or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (and no funds shall be paid or made available for a sinking fund for the redemption of such units) and no

 

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other distribution of cash or other property may be made, directly or indirectly, on or with respect thereto by the Partnership (except by conversion into or exchange for Junior Units as to distributions and upon liquidation, and except for the redemption of Partnership Interests corresponding to any REIT Series E Preferred Shares or any other REIT shares of any other class or series of capital stock ranking, as to dividends or upon liquidation, on parity with or junior to the REIT Series E Preferred Shares to be purchased by the General Partner pursuant to the Charter to the extent necessary to preserve the General Partner’s status as a real estate investment trust, provided that such redemption shall be upon the same terms as the corresponding stock purchase pursuant to the Charter), unless full cumulative distributions on the Series E Preferred Units for all past periods shall have been or contemporaneously are (i) declared and paid in cash or (ii) declared and a sum sufficient for the payment thereof in cash is set apart for such payment.

(2) When distributions are not paid in full (and a sum sufficient for such full payment is not so set apart) upon the Series E Preferred Units and any other Parity Preferred Units as to distributions, all distributions declared upon the Series E Preferred Units and such other classes or series of Parity Preferred Units as to the payment of distributions shall be declared pro rata so that the amount of distributions declared per Series E Preferred Unit and each such other class or series of Parity Preferred Units shall in all cases bear to each other the same ratio that accrued distributions per Series E Preferred Unit and such other class or series of Parity Preferred Units (which shall not include any accrual in respect of unpaid distributions on such other class or series of Parity Preferred Units for prior distribution periods if such other class or series of Parity Preferred Unit does not have a cumulative distribution) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or payments on the Series E Preferred Units which may be in arrears.

D. No Further Rights . The General Partner, as holder of the Series E Preferred Units, shall not be entitled to any distributions, whether payable in cash, other property or otherwise, in excess of the full cumulative distributions described herein. Any distribution payment made on the Series E Preferred Units shall first be credited against the earliest accrued but unpaid distribution due with respect to such Series E Preferred Units which remains payable. Accrued but unpaid distributions on the Series E Preferred Units will accumulate as of the Series E Preferred Unit Distribution Payment Date on which they first become payable.

Section 21.3 Liquidation Proceeds

A. Distributions . Upon any voluntary or involuntary liquidation, dissolution or winding-up of the Partnership, distributions on the Series E Preferred Units shall be made in accordance with Article 13 .

B. Notice . Written notice of any such voluntary or involuntary liquidation, dissolution or winding-up of the Partnership, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by the General Partner pursuant to Section 13.7 .

 

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C. No Further Rights . After payment of the full amount of the liquidating distributions to which it is entitled, the General Partner, as holder of the Series E Preferred Units, will have no right or claim to any of the remaining assets of the Partnership.

D. Consolidation, Merger or Certain Other Transactions . The voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property or assets of the Partnership to, or the consolidation or merger or other business combination of the Partnership with or into, any corporation, trust or other entity (or of any corporation, trust or other entity with or into the Partnership) shall not be deemed to constitute a liquidation, dissolution or winding-up of the Partnership.

Section 21.4 Redemption

A. Redemption . If the General Partner elects to redeem any of the REIT Series E Preferred Shares in accordance with the terms of the Series E Articles Supplementary, the Partnership shall, on the date set for redemption of such REIT Series E Preferred Shares, redeem the number of Series E Preferred Units equal to the number of REIT Series E Preferred Shares for which the General Partner has given notice of redemption pursuant to Section 5 or Section 6 , as applicable, of Article THIRD of the Series E Articles Supplementary, at a redemption price, payable in cash, equal to the product of (i) the number of Series E Preferred Units being redeemed, and (ii) an amount equal to the sum of $25, any Preferred Distribution Shortfall per Series E Preferred Unit, and any accrued and unpaid distribution per Series E Preferred Unit for the current distribution period.

B. Procedures for Redemption . The following provisions set forth the procedures for redemption:

(1) Notice of redemption will be given by the General Partner to the Partnership concurrently with the notice of the General Partner sent to the holders of its REIT Series E Preferred Shares in connection with such redemption. Such notice shall state: (A) the redemption date; (B) the redemption price; (C) the number of Series E Preferred Units to be redeemed; (D) the place or places where the Series E Preferred Units are to be surrendered for payment of the redemption price; and (E) that distributions on the Series E Preferred Units to be redeemed will cease to accumulate on such redemption date. If less than all of the Series E Preferred Units are to be redeemed, the notice shall also specify the number of Series E Preferred Units to be redeemed.

(2) On or after the redemption date, the General Partner shall present and surrender the certificates, if any, representing the Series E Preferred Units to the Partnership at the place designated in the notice of redemption and thereupon the redemption price of such Units (including all accumulated and unpaid distributions up to but excluding the redemption date) shall be paid to the General Partner and each surrendered Unit certificate, if any, shall be canceled. If fewer than all the Units represented by any such certificate representing Series E

 

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Preferred Units are to be redeemed, a new certificate shall be issued representing the unredeemed Units.

(3) From and after the redemption date (unless the Partnership defaults in payment of the redemption price), all distributions on the Series E Preferred Units designated for redemption in such notice shall cease to accumulate and all rights of the General Partner, except the right to receive the redemption price thereof (including all accumulated and unpaid distributions up to but excluding the redemption date), shall cease and terminate, and such Series E Preferred Units shall not be deemed to be outstanding for any purpose whatsoever. At its election, the Partnership, prior to a redemption date, may irrevocably deposit the redemption price (including accumulated and unpaid distributions to but not including the redemption date) of the Series E Preferred Units so called for redemption in trust for the General Partner with a bank or trust company, in which case the redemption notice to the General Partner shall (A) state the date of such deposit, (B) specify the office of such bank or trust company as the place of payment of the redemption price and (C) require the General Partner to surrender the certificates, if any, representing such Series E Preferred Units at such place on or about the date fixed in such redemption notice (which may not be later than the redemption date) against payment of the redemption price (including all accumulated and unpaid distributions to the redemption date). Any monies so deposited which remain unclaimed by the General Partner at the end of two years after the redemption date shall be returned by such bank or trust company to the Partnership.

Section 21.5 Ranking

The Series E Preferred Units shall, with respect to distribution rights and rights upon voluntary or involuntary liquidation, winding-up or dissolution of the Partnership, rank (i) senior to the Common Units and to all other Partnership Units the terms of which provide that such Partnership Units shall rank junior to the Series E Preferred Units; (ii) on a parity with all Parity Preferred Units, including the Series F Preferred Units and the Series G Preferred Units; and (iii) junior to all Partnership Units the terms of which provide that such Partnership Units shall rank senior to the Series E Preferred Units.

Section 21.6 Voting Rights

The General Partner shall not have any voting or consent rights in respect of its partnership interest represented by the Series E Preferred Units.

Section 21.7 Transfer Restrictions

The Series E Preferred Units shall not be transferable except in accordance with Section 11.2 .

 

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Section 21.8 Conversion

In the event of a conversion of REIT Series E Preferred Shares into REIT Shares at the option of the holders of REIT Series E Preferred Shares pursuant to the terms of the Series E Articles Supplementary, then, upon conversion of such REIT Series E Preferred Shares, the General Partner shall convert an equal whole number of Series E Preferred Units into Common Units as such REIT Series E Preferred Shares are converted into REIT Shares, as adjusted to take into account any changes to the REIT Shares Amount pursuant to subparagraph (y) of the definition of REIT Shares Amount. In the event of a conversion of REIT Series E Preferred Shares into REIT Shares, (a) to the extent the General Partner is required to pay cash in lieu of fractional REIT Shares pursuant to the Series E Articles Supplementary in connection with such conversion, the Partnership shall distribute an equal amount of cash to the General Partner; and (b) to the extent the General Partner receives cash proceeds in addition to the REIT Series E Preferred Shares tendered for conversion, the General Partner shall contribute such proceeds to the Partnership.

Section 21.9 No Sinking Fund

No sinking fund shall be established for the retirement or redemption of Series E Preferred Units.

ARTICLE 22.

SERIES F PREFERRED UNITS

Section 22.1 Designation and Number

A series of Partnership Units in the Partnership designated as the “6.625% Series F Cumulative Redeemable Preferred Units” (the “ Series F Preferred Units ”) is hereby established, with the rights, priorities and preferences set forth herein. The number of Series F Preferred Units shall be 8,050,000.

Section 22.2 Distributions

A. Payment of Distributions . Subject to the rights of Holders of Parity Preferred Units as to the payment of distributions, pursuant to Section 5.1, the General Partner, as holder of the Series F Preferred Units, will be entitled to receive, when, as and if declared by the Partnership acting through the General Partner, out of Available Cash, cumulative preferential cash distributions in an amount equal to the Series F Priority Return. Such distributions shall be cumulative, shall accrue from the original date of issuance and will be payable (i) quarterly (such quarterly periods for purposes of payment and accrual will be the quarterly periods ending on the dates specified in this sentence and not calendar quarters) in arrears, on the last calendar day of March, June, September and December, of each year commencing on June 30, 2012, and, (ii), in the event of a redemption of Series F Preferred Units, on the redemption date (each a “ Series F Preferred Unit Distribution Payment Date ”). If any date on which distributions are to be made

 

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on the Series F Preferred Units is not a Business Day, then payment of the distribution to be made on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date.

B. Distributions Cumulative . Notwithstanding the foregoing, distributions on the Series F Preferred Units will accrue whether or not the terms and provisions set forth in Section 22.2.C at any time prohibit the current payment of distributions, whether or not the Partnership has earnings, whether or not there are funds legally available for the payment of such distributions and whether or not such distributions are authorized.

C. Priority as to Distributions

(1) Except as provided in Section 22.2.C(2) below, no distributions shall be declared and paid or declared and set apart for payment and no other distribution of cash or other property may be declared and made on or with respect to any Parity Preferred Unit or Junior Unit as to distributions (other than a distribution paid in Junior Units as to distributions and upon liquidation) for any period, nor shall any Junior Units or Parity Preferred Units as to distributions or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (and no funds shall be paid or made available for a sinking fund for the redemption of such units) and no other distribution of cash or other property may be made, directly or indirectly, on or with respect thereto by the Partnership (except by conversion into or exchange for Junior Units as to distributions and upon liquidation, and except for the redemption of Partnership Interests corresponding to any REIT Series F Preferred Shares or any other REIT shares of any other class or series of capital stock ranking, as to dividends or upon liquidation, on parity with or junior to the REIT Series F Preferred Shares to be purchased by the General Partner pursuant to the Charter to the extent necessary to preserve the General Partner’s status as a real estate investment trust, provided that such redemption shall be upon the same terms as the corresponding stock purchase pursuant to the Charter), unless full cumulative distributions on the Series F Preferred Units for all past periods shall have been or contemporaneously are (i) declared and paid in cash or (ii) declared and a sum sufficient for the payment thereof in cash is set apart for such payment.

(2) When distributions are not paid in full (and a sum sufficient for such full payment is not so set apart) upon the Series F Preferred Units and any other Parity Preferred Units as to distributions, all distributions declared upon the Series F Preferred Units and such other classes or series of Parity Preferred Units as to the payment of distributions shall be declared pro rata so that the amount of distributions declared per Series F Preferred Unit and each such other class or series of Parity Preferred Units shall in all cases bear to each other the same ratio that accrued distributions per Series F Preferred Unit and such other class or series of Parity Preferred Units (which shall not include any accrual in respect of unpaid distributions on such other class or series of Parity Preferred Units for prior distribution periods if such other class or series of Parity Preferred Unit does not have a cumulative distribution) bear to each

 

102


other. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or payments on the Series F Preferred Units which may be in arrears.

D. No Further Rights . The General Partner, as holder of the Series F Preferred Units, shall not be entitled to any distributions, whether payable in cash, other property or otherwise, in excess of the full cumulative distributions described herein. Any distribution payment made on the Series F Preferred Units shall first be credited against the earliest accrued but unpaid distribution due with respect to such Series F Preferred Units which remains payable. Accrued but unpaid distributions on the Series F Preferred Units will accumulate as of the Series F Preferred Unit Distribution Payment Date on which they first become payable.

Section 22.3 Liquidation Proceeds

A. Distributions . Upon any voluntary or involuntary liquidation, dissolution or winding-up of the Partnership, distributions on the Series F Preferred Units shall be made in accordance with Article 13 .

B. Notice . Written notice of any such voluntary or involuntary liquidation, dissolution or winding-up of the Partnership, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by the General Partner pursuant to Section 13.7 .

C. No Further Rights . After payment of the full amount of the liquidating distributions to which it is entitled, the General Partner, as holder of the Series F Preferred Units, will have no right or claim to any of the remaining assets of the Partnership.

D. Consolidation, Merger or Certain Other Transactions . The voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property or assets of the Partnership to, or the consolidation or merger or other business combination of the Partnership with or into, any corporation, trust or other entity (or of any corporation, trust or other entity with or into the Partnership) shall not be deemed to constitute a liquidation, dissolution or winding-up of the Partnership.

Section 22.4 Redemption

A. Redemption . If the General Partner elects to redeem any of the REIT Series F Preferred Shares in accordance with the terms of the Series F Articles Supplementary, the Partnership shall, on the date set for redemption of such REIT Series F Preferred Shares, redeem the number of Series F Preferred Units equal to the number of REIT Series F Preferred Shares for which the General Partner has given notice of redemption pursuant to Section 5 or Section 6 , as applicable, of Article THIRD of the Series F Articles Supplementary, at a redemption price, payable in cash, equal to the product of (i) the number of Series F Preferred Units being redeemed, and (ii) an amount equal to the sum of $25, any Preferred Distribution Shortfall per

 

103


Series F Preferred Unit, and any accrued and unpaid distribution per Series F Preferred Unit for the current distribution period.

B. Procedures for Redemption . The following provisions set forth the procedures for redemption:

(1) Notice of redemption will be given by the General Partner to the Partnership concurrently with the notice of the General Partner sent to the holders of its REIT Series F Preferred Shares in connection with such redemption. Such notice shall state: (A) the redemption date; (B) the redemption price; (C) the number of Series F Preferred Units to be redeemed; (D) the place or places where the Series F Preferred Units are to be surrendered for payment of the redemption price; (E) that distributions on the Series F Preferred Units to be redeemed will cease to accumulate on such redemption date. If less than all of the Series F Preferred Units are to be redeemed, the notice shall also specify the number of Series F Preferred Units to be redeemed.

(2) On or after the redemption date, the General Partner shall present and surrender the certificates, if any, representing the Series F Preferred Units to the Partnership at the place designated in the notice of redemption and thereupon the redemption price of such Units (including all accumulated and unpaid distributions up to but excluding the redemption date) shall be paid to the General Partner and each surrendered Unit certificate, if any, shall be canceled. If fewer than all the Units represented by any such certificate representing Series F Preferred Units are to be redeemed, a new certificate shall be issued representing the unredeemed Units.

(3) From and after the redemption date (unless the Partnership defaults in payment of the redemption price), all distributions on the Series F Preferred Units designated for redemption in such notice shall cease to accumulate and all rights of the General Partner, except the right to receive the redemption price thereof (including all accumulated and unpaid distributions up to but excluding the redemption date), shall cease and terminate, and such Series F Preferred Units shall not be deemed to be outstanding for any purpose whatsoever. At its election, the Partnership, prior to a redemption date, may irrevocably deposit the redemption price (including accumulated and unpaid distributions to but not including the redemption date) of the Series F Preferred Units so called for redemption in trust for the General Partner with a bank or trust company, in which case the redemption notice to the General Partner shall (A) state the date of such deposit, (B) specify the office of such bank or trust company as the place of payment of the redemption price and (C) require the General Partner to surrender the certificates, if any, representing such Series F Preferred Units at such place on or about the date fixed in such redemption notice (which may not be later than the redemption date) against payment of the redemption price (including all accumulated and unpaid distributions to the redemption date). Any monies so deposited which remain unclaimed by the General Partner at the end of two years after the redemption date shall be returned by such bank or trust company to the Partnership.

 

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Section 22.5 Ranking

The Series F Preferred Units shall, with respect to distribution rights and rights upon voluntary or involuntary liquidation, winding-up or dissolution of the Partnership, rank (i) senior to the Common Units and to all other Partnership Units the terms of which provide that such Partnership Units shall rank junior to the Series F Preferred Units; (ii) on a parity with all Parity Preferred Units, including the Series E Preferred Units and the Series G Preferred Units; and (iii) junior to all Partnership Units the terms of which provide that such Partnership Units shall rank senior to the Series F Preferred Units.

Section 22.6 Voting Rights

The General Partner shall not have any voting or consent rights in respect of its partnership interest represented by the Series F Preferred Units.

Section 22.7 Transfer Restrictions

The Series F Preferred Units shall not be transferable except in accordance with Section 11.2 .

Section 22.8 Conversion

In the event of a conversion of REIT Series F Preferred Shares into REIT Shares at the option of the holders of REIT Series F Preferred Shares pursuant to the terms of the Series F Articles Supplementary, then, upon conversion of such REIT Series F Preferred Shares, the General Partner shall convert an equal whole number of Series F Preferred Units into Common Units as such REIT Series F Preferred Shares are converted into REIT Shares, as adjusted to take into account any changes to the REIT Shares Amount pursuant to subparagraph (y) of the definition of REIT Shares Amount. In the event of a conversion of REIT Series F Preferred Shares into REIT Shares, (a) to the extent the General Partner is required to pay cash in lieu of fractional REIT Shares pursuant to the Series F Articles Supplementary in connection with such conversion, the Partnership shall distribute an equal amount of cash to the General Partner; and (b) to the extent the General Partner receives cash proceeds in addition to the REIT Series F Preferred Shares tendered for conversion, the General Partner shall contribute such proceeds to the Partnership.

Section 22.9 No Sinking Fund

No sinking fund shall be established for the retirement or redemption of Series F Preferred Units.

 

105


ARTICLE 23.

SERIES G PREFERRED UNITS

Section 23.1 Designation and Number

A series of Partnership Units in the Partnership designated as the “5.875% Series G Cumulative Redeemable Preferred Units” (the “ Series G Preferred Units ”) is hereby established, with the rights, priorities and preferences set forth herein. The number of Series G Preferred Units shall be 10,350,000.

Section 23.2 Distributions

A. Payment of Distributions . Subject to the rights of Holders of Parity Preferred Units as to the payment of distributions, pursuant to Section 5.1, the General Partner, as holder of the Series G Preferred Units, will be entitled to receive, when, as and if declared by the Partnership acting through the General Partner, out of Available Cash, cumulative preferential cash distributions in an amount equal to the Series G Priority Return. Such distributions shall be cumulative, shall accrue from the original date of issuance and will be payable (i) quarterly (such quarterly periods for purposes of payment and accrual will be the quarterly periods ending on the dates specified in this sentence and not calendar quarters) in arrears, on the last calendar day of March, June, September and December, of each year commencing on June 28, 2013, and, (ii), in the event of a redemption of Series G Preferred Units, on the redemption date (each a “ Series G Preferred Unit Distribution Payment Date ”). If any date on which distributions are to be made on the Series G Preferred Units is not a Business Day, then payment of the distribution to be made on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date.

B. Distributions Cumulative . Notwithstanding the foregoing, distributions on the Series G Preferred Units will accrue whether or not the terms and provisions set forth in Section 22.2.C at any time prohibit the current payment of distributions, whether or not the Partnership has earnings, whether or not there are funds legally available for the payment of such distributions and whether or not such distributions are authorized.

C. Priority as to Distributions

(1) Except as provided in Section 23.2.C(2) below, no distributions shall be declared and paid or declared and set apart for payment and no other distribution of cash or other property may be declared and made on or with respect to any Parity Preferred Unit or Junior Unit as to distributions (other than a distribution paid in Junior Units as to distributions and upon liquidation) for any period, nor shall any Junior Units or Parity Preferred Units as to distributions or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (and no funds shall be paid or made available for a sinking fund for the redemption of such units) and no

 

106


other distribution of cash or other property may be made, directly or indirectly, on or with respect thereto by the Partnership (except by conversion into or exchange for Junior Units as to distributions and upon liquidation, and except for the redemption of Partnership Interests corresponding to any REIT Series G Preferred Shares or any other REIT shares of any other class or series of capital stock ranking, as to dividends or upon liquidation, on parity with or junior to the REIT Series G Preferred Shares to be purchased by the General Partner pursuant to the Charter to the extent necessary to preserve the General Partner’s status as a real estate investment trust, provided that such redemption shall be upon the same terms as the corresponding stock purchase pursuant to the Charter), unless full cumulative distributions on the Series G Preferred Units for all past periods shall have been or contemporaneously are (i) declared and paid in cash or (ii) declared and a sum sufficient for the payment thereof in cash is set apart for such payment.

(2) When distributions are not paid in full (and a sum sufficient for such full payment is not so set apart) upon the Series G Preferred Units and any other Parity Preferred Units as to distributions, all distributions declared upon the Series G Preferred Units and such other classes or series of Parity Preferred Units as to the payment of distributions shall be declared pro rata so that the amount of distributions declared per Series G Preferred Unit and each such other class or series of Parity Preferred Units shall in all cases bear to each other the same ratio that accrued distributions per Series G Preferred Unit and such other class or series of Parity Preferred Units (which shall not include any accrual in respect of unpaid distributions on such other class or series of Parity Preferred Units for prior distribution periods if such other class or series of Parity Preferred Unit does not have a cumulative distribution) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or payments on the Series G Preferred Units which may be in arrears.

D. No Further Rights . The General Partner, as holder of the Series G Preferred Units, shall not be entitled to any distributions, whether payable in cash, other property or otherwise, in excess of the full cumulative distributions described herein. Any distribution payment made on the Series G Preferred Units shall first be credited against the earliest accrued but unpaid distribution due with respect to such Series G Preferred Units which remains payable. Accrued but unpaid distributions on the Series G Preferred Units will accumulate as of the Series G Preferred Unit Distribution Payment Date on which they first become payable.

Section 23.3 Liquidation Proceeds

A. Distributions . Upon any voluntary or involuntary liquidation, dissolution or winding-up of the Partnership, distributions on the Series G Preferred Units shall be made in accordance with Article 13 .

B. Notice . Written notice of any such voluntary or involuntary liquidation, dissolution or winding-up of the Partnership, stating the payment date or dates when, and the

 

107


place or places where, the amounts distributable in such circumstances shall be payable, shall be given by the General Partner pursuant to Section 13.7 .

C. No Further Rights . After payment of the full amount of the liquidating distributions to which it is entitled, the General Partner, as holder of the Series G Preferred Units, will have no right or claim to any of the remaining assets of the Partnership.

D. Consolidation, Merger or Certain Other Transactions . The voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property or assets of the Partnership to, or the consolidation or merger or other business combination of the Partnership with or into, any corporation, trust or other entity (or of any corporation, trust or other entity with or into the Partnership) shall not be deemed to constitute a liquidation, dissolution or winding-up of the Partnership.

Section 23.4 Redemption

A. Redemption . If the General Partner elects to redeem any of the REIT Series G Preferred Shares in accordance with the terms of the Series G Articles Supplementary, the Partnership shall, on the date set for redemption of such REIT Series G Preferred Shares, redeem the number of Series G Preferred Units equal to the number of REIT Series G Preferred Shares for which the General Partner has given notice of redemption pursuant to Section 5 or Section 6 , as applicable, of Article THIRD of the Series G Articles Supplementary, at a redemption price, payable in cash, equal to the product of (i) the number of Series G Preferred Units being redeemed, and (ii) an amount equal to the sum of $25, any Preferred Distribution Shortfall per Series G Preferred Unit, and any accrued and unpaid distribution per Series G Preferred Unit for the current distribution period.

B. Procedures for Redemption . The following provisions set forth the procedures for redemption:

(1) Notice of redemption will be given by the General Partner to the Partnership concurrently with the notice of the General Partner sent to the holders of its REIT Series G Preferred Shares in connection with such redemption. Such notice shall state: (A) the redemption date; (B) the redemption price; (C) the number of Series G Preferred Units to be redeemed; (D) the place or places where the Series G Preferred Units are to be surrendered for payment of the redemption price; (E) that distributions on the Series G Preferred Units to be redeemed will cease to accumulate on such redemption date. If less than all of the Series G Preferred Units are to be redeemed, the notice shall also specify the number of Series G Preferred Units to be redeemed.

(2) On or after the redemption date, the General Partner shall present and surrender the certificates, if any, representing the Series G Preferred Units to the Partnership at the place designated in the notice of redemption and thereupon the redemption price of such

 

108


Units (including all accumulated and unpaid distributions up to but excluding the redemption date) shall be paid to the General Partner and each surrendered Unit certificate, if any, shall be canceled. If fewer than all the Units represented by any such certificate representing Series G Preferred Units are to be redeemed, a new certificate shall be issued representing the unredeemed Units.

(3) From and after the redemption date (unless the Partnership defaults in payment of the redemption price), all distributions on the Series G Preferred Units designated for redemption in such notice shall cease to accumulate and all rights of the General Partner, except the right to receive the redemption price thereof (including all accumulated and unpaid distributions up to but excluding the redemption date), shall cease and terminate, and such Series G Preferred Units shall not be deemed to be outstanding for any purpose whatsoever. At its election, the Partnership, prior to a redemption date, may irrevocably deposit the redemption price (including accumulated and unpaid distributions to but not including the redemption date) of the Series G Preferred Units so called for redemption in trust for the General Partner with a bank or trust company, in which case the redemption notice to the General Partner shall (A) state the date of such deposit, (B) specify the office of such bank or trust company as the place of payment of the redemption price and (C) require the General Partner to surrender the certificates, if any, representing such Series G Preferred Units at such place on or about the date fixed in such redemption notice (which may not be later than the redemption date) against payment of the redemption price (including all accumulated and unpaid distributions to the redemption date). Any monies so deposited which remain unclaimed by the General Partner at the end of two years after the redemption date shall be returned by such bank or trust company to the Partnership.

Section 23.5 Ranking

The Series G Preferred Units shall, with respect to distribution rights and rights upon voluntary or involuntary liquidation, winding-up or dissolution of the Partnership, rank (i) senior to the Common Units and to all other Partnership Units the terms of which provide that such Partnership Units shall rank junior to the Series G Preferred Units; (ii) on a parity with all Parity Preferred Units, including the Series E Preferred Units and the Series F Preferred Units; and (iii) junior to all Partnership Units the terms of which provide that such Partnership Units shall rank senior to the Series G Preferred Units.

Section 23.6 Voting Rights

The General Partner shall not have any voting or consent rights in respect of its partnership interest represented by the Series G Preferred Units.

Section 23.7 Transfer Restrictions

The Series G Preferred Units shall not be transferable except in accordance with Section 11.2 .

 

109


Section 23.8 Conversion

In the event of a conversion of REIT Series G Preferred Shares into REIT Shares at the option of the holders of REIT Series G Preferred Shares pursuant to the terms of the Series G Articles Supplementary, then, upon conversion of such REIT Series G Preferred Shares, the General Partner shall convert an equal whole number of Series G Preferred Units into Common Units as such REIT Series G Preferred Shares are converted into REIT Shares, as adjusted to take into account any changes to the REIT Shares Amount pursuant to subparagraph (y) of the definition of REIT Shares Amount. In the event of a conversion of REIT Series G Preferred Shares into REIT Shares, (a) to the extent the General Partner is required to pay cash in lieu of fractional REIT Shares pursuant to the Series G Articles Supplementary in connection with such conversion, the Partnership shall distribute an equal amount of cash to the General Partner; and (b) to the extent the General Partner receives cash proceeds in addition to the REIT Series G Preferred Shares tendered for conversion, the General Partner shall contribute such proceeds to the Partnership.

Section 23.9 No Sinking Fund

No sinking fund shall be established for the retirement or redemption of Series G Preferred Units.

 

110


IN WITNESS WHEREOF, the undersigned has executed this Twelfth Amended and Restated Agreement of Limited Partnership as of the date first written above.

 

DIGITAL REALTY TRUST, L.P.
By:  

Digital Realty Trust, Inc.,

a Maryland corporation

Its General Partner

  By:  

/s/ Michael F. Foust

   

Michael F. Foust

Chief Executive Officer

Signature Page to Twelfth Amended and Restated Agreement of Limited Partnership of Digital Realty Trust, L.P.

 

S-1


EXHIBIT A

PARTNERS, CONTRIBUTIONS AND PARTNERSHIP INTERESTS

 

A-1


EXHIBIT A

(Dated February 11, 2014)

PARTNERS, CONTRIBUTIONS AND PARTNERSHIP INTERESTS

Common or Profits Interest Units:

 

Name and Address of Partner

   Cash
Contributions
     Agreed Value of
Contributed
Property*#
     Total
Contributions**
     Common or
Profits
Interest

Units
     Percentage
Interest -
Including
Class C
    Percentage
Interest -
Including
Classes

C & D
    Percentage
Interest -
Including
Class C &
Class D at
10%
 
                  
                  

General Partner

                  

Digital Realty Trust, Inc.

   $ 3,583,268,750       $ 217,890,000       $ 3,801,158,750         128,455,005         97.7424     97.2914     97.6971

Limited Partners

                  

Cambay Tele.com, LLC

      $ 11,838,336       $ 11,838,336         986,528         0.7507     0.7472     0.7503

Dell’Osso Family Revocable Trust

      $ 660,000       $ 660,000         55,000         0.0418     0.0417     0.0418

William C. Scott

      $ 452,796       $ 452,796         37,733         0.0287     0.0286     0.0287

Nancy A. Scott

      $ 349,860       $ 349,860         29,155         0.0222     0.0221     0.0222

Wilson Family Revocable Trust

      $ 3,384,300       $ 3,384,300         282,025         0.2146     0.2136     0.2145

Profits Interest Unit Holders

                  

Richard A. Magnuson

              160,124         0.1218     0.1213     0.1218

Mary White as Trustee of the Magnuson 2008 Digital Irrevocable Trust

              100,000         0.0761     0.0757     0.0761

Michael F. Foust

              216,050         0.1644     0.1636     0.1643

A. William Stein

              108,899         0.0829     0.0825     0.0828

Scott E. Peterson

              81,477         0.0620     0.0617     0.0620

Wayne Allen

              4,081         0.0031     0.0031     0.0031

Dave Caron

              92,225         0.0702     0.0699     0.0701

Chris Kenney

              46,003         0.0350     0.0348     0.0350

Jon Paulsen

              38,531         0.0293     0.0292     0.0293

Joshua Mills

              34,446         0.0262     0.0261     0.0262

Edward Sham

              35,055         0.0267     0.0266     0.0267

Ellen Jacobs

              44,509         0.0339     0.0337     0.0339

Wendy Will

              9,794         0.0075     0.0074     0.0074

Laurence A. Chapman

              2,803         0.0021     0.0021     0.0021

Ruann F. Ernst, Ph.D.

              8,192         0.0062     0.0062     0.0062

Kathleen Earley (Reed)

              2,803         0.0021     0.0021     0.0021

Dennis E. Singleton

              14,640         0.0111     0.0111     0.0111

Robert H. Zerbst

              5,963         0.0045     0.0045     0.0045

Glenn Benoist

              15,073         0.0115     0.0114     0.0115

Joseph Goldsmith

              8,038         0.0061     0.0061     0.0061

Jennifer Xiao

              8,574         0.0065     0.0065     0.0065

James Smith

              4,357         0.0033     0.0033     0.0033

Adil Attlassy

              2,488         0.0019     0.0019     0.0019

Chun Lee

              468         0.0004     0.0004     0.0004

 

A-2


Keith Dines

              1,279         0.0010     0.0010     0.0010

Carrie Pedraza

              5,487         0.0042     0.0042     0.0042

Mark Walker

              5,658         0.0043     0.0043     0.0043

David Schirmacher

              7,217         0.0055     0.0055     0.0055

Kevin Kennedy

              1,677         0.0013     0.0013     0.0013

William LaPerch

              1,677         0.0013     0.0013     0.0013

Steve Kundich

              2,070         0.0016     0.0016     0.0016

Matthew Miszewski

              8,180         0.0062     0.0062     0.0062

Cedar Kilo Investments, LLC

              33,791         0.0257     0.0256     0.0257

Magnolia Kilo Investments, LLC

              33,791         0.0257     0.0256     0.0257

Redwood Kilo Investments, LLC

              33,791         0.0257     0.0256     0.0257

Total

              131,024,657           0.8931     0.8969

*       Net of Debt (if any)

          

#       Agreed Value as of contribution date. Units received in exchange for such contribution may have been distributed to the owners of the contributing Limited Partners from time to time.

           

**     Total contributions shown for applicable Limited Partners are as of applicable contribution date. Units received in exchange for such contributions may have been distributed to the owners of the contributing Limited Partners from time to time.

         

Class C Unit Holders

                  
                    Class C
Units
     Percentage
Interest (All
Classes)
             

10/27/2005-12/28/2005

                  

Richard A. Magnuson

              216,451         0.1639    

5/2/2007

                  

Richard A. Magnuson

              100,848         0.0764    

Dave Caron

              20,169         0.0153    

Chris Kenney

              20,169         0.0153    

Edward Sham

              8,447         0.0064    

Ellen Jacobs

              11,116         0.0084    

Glenn Benoist

              20,169         0.0153    

Total Class C Units

              397,369          

Class D Unit Holders

                  
                    Class D
Units
     Percentage
Interest (All
Classes)
             

Michael Foust

              169,197         0.1281    

A. William Stein

              90,239         0.0683    

David Caron

              62,039         0.0470    

Scott Peterson

              56,399         0.0427    

Matthew Miszewski

              39,479         0.0299    

Joshua Mills

              33,839         0.0256    

Ellen Jacobs

              23,970         0.0182    

Edward Sham

              23,970         0.0182    

David Schirmacher

              21,150         0.0160    

Christopher Kenney

              12,690         0.0096    

Winnifred Will

              12,690         0.0096    

Jennifer Xiao

              12,690         0.0096    

John Stewart

              12,690         0.0096    

Glenn Benoist

              8,460         0.0064    

Mark Walker

              7,910         0.0060    

Stephen Kundich

              6,345         0.0048    

Jon Paulsen

              5,499         0.0042    

Joseph Goldsmith

              5,287         0.0040    

Carrie Pedraza

              4,653         0.0035    

Total Class D Units

              609,196          

 

A-3


Series E Preferred Units:                                 

Name and Address of Partner

   Gross Asset
Value
   Cash
Contributions
     Total
Contributions
     Preferred      Percentage
Interest
 

Digital Realty Trust, Inc.

      $ 278,443,750       $ 278,443,750         11,500,000         100.0000
Series F Preferred Units:                                 

Name and Address of Partner

   Gross Asset
Value
   Cash
Contributions
     Total
Contributions
     Preferred      Percentage
Interest
 

Digital Realty Trust, Inc.

      $ 176,751,250       $ 176,751,250         7,300,000         100.0000
Series G Preferred Units:                                 

Name and Address of Partner

   Gross Asset
Value
   Cash
Contributions
     Total
Contributions
     Preferred      Percentage
Interest
 

Digital Realty Trust, Inc.

      $ 242,125,000       $ 242,125,000         10,000,000         100.0000

 

A-4


EXHIBIT B

NOTICE OF REDEMPTION

The undersigned hereby irrevocably (i) transfers              Limited Partnership Units in Digital Realty Trust, L.P. in accordance with the terms of the Limited Partnership Agreement of Digital Realty Trust, L.P. and the rights of Redemption referred to therein, (ii) surrenders such Limited Partnership Units and all right, title and interest therein, and (iii) directs that the cash (or, if applicable, REIT Shares) deliverable upon Redemption or exchange be delivered to the address specified below, and if applicable, that such REIT Shares be registered or placed in the name(s) and at the address(es) specified below.

 

Dated:  

 

  Name of Limited Partner:

 

 

(Signature of Limited Partner)

 

(Street Address)

 

(City) (State) (Zip Code)
Signature Guaranteed by:

 

Issue REIT Shares to:

Please insert social security or identifying number:

Name:

 

B-1


EXHIBIT C

CONSTRUCTIVE OWNERSHIP DEFINITION

The term “Constructively Owns” means ownership determined through the application of the constructive ownership rules of Section 318 of the Code, as modified by Section 856(d)(5) of the Code. Generally, these rules provide the following:

a. an individual is considered as owning the Ownership Interest that is owned, actually or constructively, by or for his spouse, his children, his grandchildren, and his parents;

b. an Ownership Interest that is owned, actually or constructively, by or for a partnership, limited liability company or estate is considered as owned proportionately by its partners or beneficiaries;

c. an Ownership Interest that is owned, actually or constructively, by or for a trust is considered as owned by its beneficiaries in proportion to the actuarial interest of such beneficiaries ( provided , however , that in the case of a “grantor trust” the Ownership Interest will be considered as owned by the grantors);

d. if ten (10) percent or more in value of the stock in a corporation is owned, actually or constructively, by or for any person, such person shall be considered as owning the Ownership Interest that is owned, actually or constructively, by or for such corporation in that proportion which the value of the stock which such person so owns bears to the value of all the stock in such corporation;

e. an Ownership Interest that is owned, actually or constructively, by or for a partner or member which actually or constructively owns a 25% or greater capital interest or profits interest in a partnership or limited liability company, or by or to or for a beneficiary of an estate or trust shall be considered as owned by the partnership, limited liability company, estate, or trust (or, in the case of a grantor trust, the grantors);

f. if ten (10) percent or more in value of the stock in a corporation is owned, actually or constructively, by or for any person, such corporation shall be considered as owning the Ownership Interest that is owned, actually or constructively, by or for such person;

g. if any person has an option to acquire an Ownership Interest (including an option to acquire an option or any one of a series of such options), such Ownership Interest shall be considered as owned by such person;

h. an Ownership Interest that is constructively owned by a person by reason of the application of the rules described in paragraphs (a) through (g) above shall, for purposes of applying paragraphs (a) through (g), be considered as actually owned by such person provided ,

 

C-1


however, that (i) an Ownership Interest constructively owned by an individual by reason of paragraph (a) shall not be considered as owned by him for purposes of again applying paragraph (a) in order to make another the constructive owner of such Ownership Interest, (ii) an Ownership Interest constructively owned by a partnership, estate, trust, or corporation by reason of the application of paragraphs (e) or (f) shall not be considered as owned by it for purposes of applying paragraphs (b), (c), or (d) in order to make another the constructive owner of such Ownership Interest, (iii) if an Ownership Interest may be considered as owned by an individual under paragraphs (a) or (g), it shall be considered as owned by him under paragraph (g), and (iv) for purposes of the above described rules, an S corporation shall be treated as a partnership and any stockholder of the S corporation shall be treated as a partner of such partnership except that this rule shall not apply for purposes of determining whether stock in the S corporation is constructively owned by any person.

i. For purposes of the above summary of the constructive ownership rules, the term “Ownership Interest” means the ownership of stock with respect to a corporation and, with respect to any other type of entity, the ownership of an interest in either its assets or net profits.

 

C-2


EXHIBIT D

FORM OF PARTNERSHIP UNIT CERTIFICATE

CERTIFICATE FOR PARTNERSHIP UNITS OF DIGITAL REALTY TRUST, L.P.

 

No.                                              UNITS

Digital Realty Trust, Inc., as the General Partner of Digital Realty Trust, L.P., a Maryland limited partnership (the “ Operating Partnership ”), hereby certifies that              is a Limited Partner of the Operating Partnership whose Partnership Interests therein, as set forth in the Amended and Restated Agreement of Limited Partnership of Digital Realty Trust, L.P., (the “ Partnership Agreement ”), under which the Operating Partnership is existing and as filed in the office of the Maryland State Department of Assessments and Taxation (copies of which are on file at the Operating Partnership’s principal office at Four Embarcadero Center, Suite 3200, San Francisco, California 94111), represent              units of limited partnership interest in the Operating Partnership.

THE UNITS REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF THE AMENDED AND RESTATED PARTNERSHIP AGREEMENT AS OF FEBRUARY 11, 2014 AS IT MAY BE AMENDED FROM TIME TO TIME (A COPY OF WHICH IS ON FILE WITH THE OPERATING PARTNERSHIP). EXCEPT AS OTHERWISE PROVIDED IN SUCH AGREEMENT, THE UNITS EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ ACT ”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION, UNLESS THE TRANSFEROR DELIVERS TO THE GENERAL PARTNER AN OPINION OF COUNSEL SATISFACTORY TO THE GENERAL PARTNER, TO THE EFFECT THAT THE PROPOSED SALE, TRANSFER OR OTHER DISPOSITION MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE ACT AND UNDER APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS.

DATED:                                 

 

DIGITAL REALTY TRUST, INC.
General Partner of
Digital Realty Trust, L.P.

 

D-1


ATTEST:      
By:  

 

    By:  

 

 

D-2


EXHIBIT E

SCHEDULE OF PARTNERS’ OWNERSHIP WITH RESPECT TO TENANTS

 

    Global Innovation Partners, LLC makes no representation, warranty or covenant regarding its constructive ownership of interests in Tenants to the extent such ownership is caused by the actual or constructive ownership of such interests by CALPERS in its capacity as a member of Global Innovation Partners, LLC, and the General Partner hereby consents to such ownership.

 

E-1


EXHIBIT F

SCHEDULE OF REIT SHARES

ACTUALLY OR CONSTRUCTIVELY OWNED BY LIMITED PARTNERS

OTHER THAN THOSE ACQUIRED PURSUANT TO AN EXCHANGE

None

 

F-1


EXHIBIT G

NOTICE OF ELECTION BY PARTNER TO CONVERT PROFITS INTEREST UNITS INTO PARTNERSHIP UNITS

The undersigned Profits Interest Unitholder hereby irrevocably [(i)] elects to convert the number of Profits Interest Units in Digital Realty Trust, L.P. (the “ Partnership ”) set forth below into Partnership Units in accordance with the terms of the Amended and Restated Agreement of Limited Partnership of the Partnership, as amended[; and (ii) directs that any cash in lieu of Partnership Units that may be deliverable upon such conversion to be deliverable upon such conversion be delivered to the address specified below]. The undersigned hereby represents, warrants, and certifies that the undersigned (a) has title to such Profits Interest Units, free and clear of the rights or interests of any other person or entity other than the Partnership; (b) has the full right, power, and authority to cause the conversion of such Profits Interest Units as provided herein; and (c) has obtained the consent or approval of all persons or entities, if any, having the right to consent or approve such conversion.

Name of Profits Interest Unitholder:                                                                                                                                  

(Please Print: Exact Name as Registered with Partnership)

Number of Profits Interest Units to be Converted:                                  

Date of this Notice:                                                             

 

                                                                                                                                                                                                                                                          

(Signature of Limited Partner: Sign Exact Name as Registered with Partnership)

 

                                                                                                                                                                                                                                                          

                    (Street Address)

 

                                                                                                                                                                                                                                                          

(City)                (State)                 (Zip Code)

[Signature Guaranteed by:                                                                                                                                ]                                                                     

 

G-1


EXHIBIT H

NOTICE OF ELECTION BY PARTNERSHIP TO FORCE CONVERSION OF PROFITS INTEREST UNITS INTO PARTNERSHIP UNITS

Digital Realty Trust, L.P. (the “ Partnership ”) hereby irrevocably (i) elects to cause the number of Profits Interest Units held by the Profits Interest Unitholder set forth below to be converted into Partnership Units in accordance with the terms of Amended and Restated Agreement of Limited Partnership of the Partnership, as amended.

Name of Profits Interest Unitholder:                                                                                                                                                                                        

                                                                         (Please Print: Exact Name as Registered with Partnership)

Number of Profits Interest Units to be Converted:                                                                                                                                                      

Date of this Notice:                                                                                                                                                                                                              

 

H-1

Exhibit 10.28

AMENDMENT NO. 2 TO THE

TERM LOAN AGREEMENT

Dated as of December 11, 2013

AMENDMENT NO. 2 TO THE TERM LOAN AGREEMENT (this “ Amendment ”) among Digital Realty Trust, L.P., (the “ Operating Partnership ”), Digital Realty Datafirm, LLC, a Delaware limited liability company (the “ Initial Australia Borrower 1 ”), Digital Realty Datafirm 2, LLC, a Delaware limited liability company (the “ Initial Australia Borrower 2 ”), Digital Luxembourg II S.À R.L., a Luxembourg private limited liability company ( société à responsabilité limitée ) (the “ Initial Luxembourg Borrower 1 ”), Digital Luxembourg III S.À R.L., a Luxembourg private limited liability company ( société à responsabilité limitée ) (the “ Initial Luxembourg Borrower 2 ”), Digital Realty (Redhill) S.À R.L., a Luxembourg private limited liability company ( société à responsabilité limitée ) (the “ Initial Luxembourg Borrower 3 ”), Digital Realty (Blanchardstown) Limited, an Irish private company limited by shares (the “ Initial Irish Borrower ”), Digital Realty (Paris2) SCI, a French Société Civile Immobilière (the “ Initial French Borrower ”), Digital Singapore Jurong East Pte. Ltd., a Singapore private limited company (the “ Initial Singapore Borrower ”), Digital Realty (Welwyn) S.À R.L., a Luxembourg private limited liability company ( société à responsabilité limitée ) (the “ Initial Luxembourg Borrower 4 ”) and Digital Netherlands IV B.V., a private company with limited liability (besloten vennootschap met beperkete aansprakelijkheid) (the “ Initial Dutch Borrower ”; and collectively with the Operating Partnership, the Initial Australia Borrower 1, the Initial Australia Borrower 2, the Initial Luxembourg Borrower 1, the Initial Luxembourg Borrower 2, the Initial Luxembourg Borrower 3, the Initial Irish Borrower, the Initial French Borrower, the Initial Singapore Borrower and the Initial Luxembourg Borrower 4, the “ Borrowers ” and each individually a “ Borrower ”), Digital Realty Trust, Inc., (the “ Parent Guarantor ”), the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the lenders (the “ Required Lenders ”) and Citibank, N.A. (“ Citibank ”), as administrative agent for the Lenders (the “ Administrative Agent ”).

PRELIMINARY STATEMENTS:

(1) The Borrowers, the Parent Guarantor, the subsidiaries of the Borrowers party thereto, the Lenders, the Administrative Agent and the other financial institutions party thereto entered into a Term Loan Agreement dated as of April 16, 2012 (as amended by that certain Amendment No. 1 to Term Loan, dated as of August 15, 2013, the “ Existing Term Loan Agreement ”). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Existing Term Loan Agreement, as amended hereby;

(2) The Administrative Agent and the Borrowers wish to amend the Existing Term Loan Agreement to address recent changes made by the Association of Banks in Singapore and the Singapore Foreign Exchange Market Committee to the recommended process of determining LIBOR for borrowings in Singapore Dollars; and

(3) Subject to the terms and conditions herein, the Borrowers, the Administrative Agent and Required Lenders have agreed to amend the Existing Term Loan Agreement on the terms and subject to the conditions hereinafter set forth.

SECTION 1. Amendments to Existing Term Loan Agreement . The Existing Term Loan Agreement is, upon the occurrence of the Amendment Effective Date (as defined in Section 4 below), hereby amended as set forth below:

(a) The definition of “Interest Period” set forth in Section 1.01 of the Existing Term Loan Agreement is hereby amended by (i) deleting the word “and” at the end of clause (d) thereof, (ii)


deleting the period and adding the word “; and” at the end of clause (e) thereof and (iii) adding a new clause (f) to read in full as follows:

“(f) with respect to the Singapore Dollar Loan, the available Interest Period durations shall be one, three and six months only.”

(b) The definition of “Market Disruption Event” set forth in Section 1.01 of the Existing Term Loan Agreement is hereby amended by replacing the words “11:00 A.M. (Singapore time)” in the second line thereof with “12:00 P.M. (London time)”.

(c) The definition of “Singapore Business Day” set forth in Section 1.01 of the Existing Term Loan Agreement is hereby amended by inserting the words “and London, England” immediately before the period at the end thereof.

(d) The definition of “SOR” set forth in Section 1.01 of the Existing Term Loan Agreement is hereby deleted in its entirety and replaced with the following:

““ SOR ” means in relation to the Advances in respect of the Singapore Dollar Loan, (a) the rate appearing under the caption “SGD SOR Rates” on the ABSFIX01 of the Reuters Monitor Money Rates Services at 12:00 P.M. (London time) on the applicable Quotation Day or (b) if no such rate is available, the rate reasonably determined by the Administrative Agent as the rate quoted to leading banks in the Singapore interbank market as of 12:00 P.M. (London time) on the Quotation Day for the offering of deposits in Singapore Dollars for a period comparable to the applicable Interest Period.”

SECTION 2. Conditions of Effectiveness . This Amendment shall become effective as of the first date (the “ Amendment Effective Date ”) on which, and only if, each of the following conditions precedent shall have been satisfied:

(a) The Administrative Agent shall have received on or before the date hereof, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified):

(i) Counterparts of this Amendment executed by the Borrowers and each Required Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment.

(ii) The consent attached hereto (the “ Consent ”) executed by each of the Guarantors.

(b) All of the accrued fees of the Administrative Agent and the Lenders and all reasonable expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.

SECTION 3. Reference to and Effect on the Existing Term Loan Agreement, the Notes and the Loan Documents . (a) On and after the effectiveness of this Amendment, each reference in the Existing Term Loan Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Existing Term Loan Agreement, and each reference in the Notes and each of the other Loan Documents to “the Loan Agreement”,

 

2


“thereunder”, “thereof” or words of like import referring to the Existing Term Loan Agreement, shall mean and be a reference to the Existing Term Loan Agreement, as amended and modified by this Amendment.

(b) The Existing Term Loan Agreement, the Notes and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.

(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

(d) This Amendment shall not extinguish the obligations for the payment of money outstanding under the Existing Term Loan Agreement. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Existing Term Loan Agreement, which shall remain in full force and effect, except to any extent modified hereby or as provided in the exhibits hereto. Nothing implied in this Amendment or in any other document contemplated hereby shall be construed as a release or other discharge of any of the Loan Parties from the Loan Documents.

SECTION 4. Costs and Expenses . The Borrowers agrees to pay on demand all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section 9.04 of the Existing Term Loan Agreement.

SECTION 5. Execution in Counterparts . This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile shall be effective as delivery of a manually executed counterpart of this Amendment.

SECTION 6. Governing Law . This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.

[Balance of page intentionally left blank.]

 

3


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

BORROWERS:

DIGITAL REALTY TRUST, L.P.,

a Maryland limited partnership

    By:  

DIGITAL REALTY TRUST, INC.,

its sole general partner

 

By:

 

/s/ A. William Stein

    Name: A. William Stein
    Title: Chief Financial Officer and Chief Investment Officer

DIGITAL REALTY DATAFIRM, LLC,

a Delaware limited liability company

    By:  

DIGITAL REALTY TRUST, L.P.,

        its sole member and manager

    By:  

DIGITAL REALTY TRUST, INC.,

        its sole general partner

 

By:

 

/s/ A. William Stein

    Name: A. William Stein
    Title: Chief Financial Officer and Chief Investment Officer

DIGITAL REALTY DATAFIRM 2, LLC,

a Delaware limited liability company

    By:  

DIGITAL REALTY TRUST, L.P.,

its sole member and manager

    By:  

DIGITAL REALTY TRUST, INC.,

its sole general partner

 

By:

 

/s/ A. William Stein

    Name: A. William Stein
    Title: Chief Financial Officer and
              Chief Investment Officer

 

Signature Page


DIGITAL LUXEMBOURG II S.À R.L.,
a Luxembourg Société à responsabilité limitée

Registered office: 11, Boulevard du Prince Henri, L-1724,

Luxembourg

Share capital: EUR 1,600,500
R.C.S. Luxembourg: B110.214
    By:  

/s/ A. William Stein

  Name: A. William Stein, Authorized Signatory

DIGITAL LUXEMBOURG III S.À R.L.,

a Luxembourg Société à responsabilité limitée

Registered office: 11, Boulevard du Prince Henri
L-1724 Luxembourg
Share capital: £ 25,823
R.C.S. Luxembourg: B 141.552
    By:  

/s/ A. William Stein

  Name: A. William Stein, Authorized Signatory

DIGITAL REALTY (REDHILL) S.À R.L.,

a Luxembourg Société à responsabilité limitée

Registered office: 11, Boulevard du Prince Henri
L-1724, Luxembourg
Share capital: £ 12,000
R.C.S. Luxembourg: B 125.912
    By:  

/s/ A. William Stein

  Name: A. William Stein, Authorized Signatory

DIGITAL REALTY (PARIS2) SCI,

a French Société civile immobiliere

    By:  

/s/ A. William Stein

  Name: A. William Stein, duly authorized

 

Signature Page


DIGITAL SINGAPORE JURONG EAST PTE. LTD.,
a Singapore private company limited by shares
By:  

/s/ A. William Stein

  Name: A. William Stein, Authorized Person

DIGITAL REALTY (WELWYN) S.À R.L.

a Luxembourg Société à responsabilité limitée

Registered office: 11, Boulevard du Prince Henri
L-1724, Luxembourg
Share capital: £ 12,000
R.C.S. Luxembourg: B 125.239
By:  

/s/ A. William Stein

  Name: A. William Stein, Authorized Signatory

DIGITAL REALTY (BLANCHARDSTOWN) LIMITED,

an Irish private company limited by shares

By:  

/s/ Joshua A. Mills

  Name: Joshua A. Mills,
  Title: Director

DIGITAL NETHERLANDS IV, B.V.,

a Dutch private company with limited liability

By:  

/s/ A. William Stein

  Name: A. William Stein, Authorized Person

 

Signature Page


PARENT GUARANTOR:

DIGITAL REALTY TRUST, INC.,

a Maryland corporation

            By:  

/s/ A. William Stein

  Name: A. William Stein
  Title: Chief Financial Officer and
            Chief Investment Officer

 

Signature Page


ADMINISTRATIVE AGENT:
        CITIBANK, N.A.
        By:  

        /s/ John C. Rowland

  Name: John C. Rowland
  Title: Vice President

 

Signature Page


CITIBANK, N.A.,
as a Lender
By:  

        /s/ John C. Rowland

  Name: John C. Rowland
  Title: Vice President

 

Signature Page


CITIBANK, N.A., SINGAPORE BRANCH,

as a Lender

By:  

/s/ Ajay Sharma

  Name: Ajay Sharma
  Title: Managing Director

 

Signature Page


CITIBANK INTERNATIONAL PLC,
as a Lender
By:  

/s/ Mark Lightbown

  Name: Mark Lightbown
  Title: Vice President

 

Signature Page


CITIBANK N.A., SYDNEY BRANCH,

as a Lender

By:  

/s/ Michael Reid

  Name: Michael Reid
  Title: Managing Director
By:  

/s/ Stephen Daly

  Name: Stephen Daly
  Title: Director

 

Signature Page


BANK OF AMERICA, N.A.
as a Lender
By:  

/s/ William P. Foley

  Name: William P. Foley
  Title: Vice President

 

Signature Page


JPMORGAN CHASE BANK, N.A.
as a Lender
By:  

/s/ Kimberly Turner

  Name: Kimberly Turner
  Title: Executive Director

 

Signature Page


BARCLAYS BANK PLC,
as a Lender
By:  

/s/ Noam Azachi

  Name: Noam Azachi
  Title: Vice President

 

Signature Page


CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
as a Lender
By:  

/s/ Mikhail Faybusovich

  Name: Mikhail Faybusovich
  Title: Authorized Signatory
By:  

/s/ Jean-Marc Vauclair

  Name: Jean-Marc Vauclair
  Title: Authorized Signatory

 

Signature Page


DEUTSCHE BANK AG NEW YORK BRANCH,
as a Lender
By:  

/s/ David Naranjo

  Name: David Naranjo
  Title: Vice President
By:  

/s/ Joanna Soliman

  Name: Joanna Soliman
  Title: Vice President

 

Signature Page


DEUTSCHE BANK AG SINGAPORE BRANCH,
as a Lender
By:  

/s/ David Cheng Chi-Jian

  Name: Cheng Chi-Jian, David
  Title: Director
By:  

/s/ Steffen Alexander Johann Friedrich Limbach

  Name: Limbach, Steffen Alexander Johann Friedrich
  Title: Director

 

Signature Page


Goldman Sachs Bank USA,
as a Lender
By:  

/s/ Michelle Latzoni

  Name: Michelle Latzoni
  Title: Authorized Signatory

 

Signature Page


ROYAL BANK OF CANADA,
as a Lender
By:  

/s/ Brian Gross

  Name: Brian Gross
  Title: Authorized Signatory

 

Signature Page


WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By:  

/s/ Kevin A. Stacker

  Name: Kevin A. Stacker
  Title: Vice President

 

Signature Page


COMPASS BANK,
as a Lender
By:  

/s/ Brian Tuerff

  Name: Brian Tuerff
  Title: Senior Vice President

 

Signature Page


HSBC BANK USA, N.A.
as a Lender
By:  

/s/ Adriana Collins

  Name: Adrianna Collins
  Title: Vice President

 

Signature Page


LLOYDS BANK PLC, formerly known as Lloyds TSB Bank plc
as a Lender
By:  

/s/ Stephen Giacolone

  Name: Stephen Giacolone
  Title: Assistant Vice President G011
By:  

/s/ Karen Weich

  Name: Karen Weich
  Title: Vice President W011

 

Signature Page


SUNTRUST BANK,
as a Lender
By:  

/s/ Nancy B. Richards

  Name: Nancy B. Richards
  Title: Senior Vice President

 

Signature Page


THE ROYAL BANK OF SCOTLAND PLC,
as a Lender
By:  

/s/ Jeannine Pascal

  Name: Jeannine Pascal
  Title: Vice President

 

Signature Page


THE BANK OF NOVA SCOTIA, SINGAPORE BRANCH,
as a Lender
By:  

/s/ Gabriel Low Boon Tiong

  Name: Gabriel Low Boon Tiong
  Title: Director, Head of Operations

 

Signature Page


SCOTIABANK EUROPE PLC,
as a Lender
By:  

/s/ John O’Connor

  Name: John O’Connor
  Title: Head of Credit Risk Control
By:  

/s/ Steve Caller

  Name: Steve Caller
  Title: Manager, Credit Risk Control

 

Signature Page


TD Bank, N.A.,

as a Lender

By:  

/s/ Michael J. Pappas

  Name: Michael J. Pappas
  Title: Vice President

 

Signature Page


MORGAN STANLEY BANK, N.A.,
as a Lender
By:  

/s/ Nick Zangari

  Name: Nick Zangari
  Title: Authorized Signatory

 

Signature Page


SUMITOMO MISUI BANKING CORPORATION,
as a Lender
By:  

/s/ William G. Karl

  Name: William G. Karl
  Title: General Manager

 

Signature Page


US BANK NATIONAL ASSOCIATION, a national banking association,
as a Lender
By:  

/s/ Michael Diemer

  Name: Michael Diemer
  Title: Vice President

 

Signature Page


UNION BANK, N.A.,
as a Lender
By:  

/s/ Amit Shah

  Name: Amit Shah
  Title: Vice President

 

Signature Page


AUSTRALIAN AND NEW ZEALAND BANKING GROUP,
as a Lender
By:  

/s/ Grace Irvin

  Name: Grace Irvin
  Title: Director

 

Signature Page


BRANCH BANKING AND TRUST COMPANY,
as a Lender
By:  

/s/ Ahaz A. Armstrong

  Name: Ahaz A. Armstrong
  Title: Assistant Vice President

 

Signature Page


RAYMOND JAMES BANK, N.A.,
as a Lender
By:  

/s/ Thomas G. Scott

  Name: Thomas G. Scott
  Title: Senior Vice President

 

Signature Page


CITY NATIONAL BANK, a national banking association
as a Lender
By:  

/s/ John Finnigan

  Name: John Finnigan
  Title: Senior Vice President

 

Signature Page


CONSENT

Dated as of December 11, 2013

Each of the undersigned, as a Guarantor under the Existing Term Loan Agreement referred to in the foregoing Amendment, hereby consents to such Amendment and hereby confirms and agrees that notwithstanding the effectiveness of such Amendment, the Guaranty contained in the Existing Term Loan Agreement is and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of such Amendment, each reference in the Loan Documents to “Loan Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference to the Existing Term Loan Agreement, as amended and modified by such Amendment.

[Balance of page intentionally left blank.]


GUARANTORS:

DIGITAL REALTY TRUST, L.P.,

a Maryland limited partnership

    By:   DIGITAL REALTY TRUST, INC.,
  its sole general partner
  By:  

/s/ A. William Stein

    Name: A. William Stein
    Title: Chief Financial Officer and Chief
              Investment Officer

DIGITAL REALTY TRUST, INC.,

a Maryland corporation

  By:  

/s/ A. William Stein

    Name: A. William Stein
   

Title: Chief Financial Officer and Chief

          Investment Officer

 

Signature Page to Consent

Exhibit 10.30

AMENDMENT NO. 1 TO THE

GLOBAL SENIOR CREDIT AGREEMENT

Dated as of December 11, 2013

AMENDMENT NO. 1 TO GLOBAL SENIOR CREDIT AGREEMENT (this “ Amendment ”) among Digital Realty Trust, L.P., (the “ Operating Partnership ”), Digital Realty Datafirm, LLC, a Delaware limited liability company (the “ Initial Australia Borrower 1 ”), Digital Realty Datafirm 2, LLC, a Delaware limited liability company (the “ Initial Australia Borrower 2 ”), Digital Luxembourg II S.À R.L., a Luxembourg private limited liability company ( société à responsabilité limitée ) (the “ Initial Luxembourg Borrower 1 ”), Digital Luxembourg III S.À R.L., a Luxembourg private limited liability company ( société à responsabilité limitée ) (the “ Initial Luxembourg Borrower 2 ”), Digital Realty (Blanchardstown) Limited, an Irish private company limited by shares (the “ Initial Irish Borrower 1 ”), Digital Singapore Jurong East Pte. Ltd., a Singapore private limited company (the “ Initial Singapore Borrower 1 ”), Digital HK JV Holding Limited, a British Virgin Islands limited company (the “ Initial Singapore Borrower 2 ”), Digital Netherlands VIII B.V., a private company with limited liability (besloten vennootschap met beperkete aansprakelijkheid) (the “ Initial Dutch Borrower 1 ”), Digital Deer Park 2, LLC, a Delaware limited liability company (the “ Initial Australia Borrower 3 ”), Digital Stout Holding, LLC, a Delaware limited liability company (the “ Initial Multicurrency Borrower 1 ”), Digital Macquarie Park, LLC, a Delaware limited liability company (the “ Initial Australia Borrower 4 ”), Digital Gough, LLC, a Delaware limited liability company (the “ Initial Multicurrency Borrower 2 ”), Digital Netherlands IV B.V., a private company with limited liability (besloten vennootschap met beperkete aansprakelijkheid) (the “ Initial Dutch Borrower 2 ”), Digital Netherlands I, B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) (the “ Initial Dutch Borrower 3 ”), Digital Japan LLC, a Delaware limited liability company (the “ Initial Multicurrency Borrower 3 ”), Digital Osaka 1 TMK, a Japanese tokutei mokuteki kaisha (the “ Initial Yen Borrower 1 ”) and Digital Australia Finco Pty Ltd., an Australian proprietary limited company (the “ Initial Australia Borrower 5 ”; and collectively with the Operating Partnership, the Initial Australia Borrower 1, the Initial Australia Borrower 2, the Initial Luxembourg Borrower 1, the Initial Luxembourg Borrower 2, the Initial Irish Borrower 1, the Initial Singapore Borrower 1, the Initial Singapore Borrower 2, the Initial Dutch Borrower 1, the Initial Australia Borrower 3, the Initial Multicurrency Borrower 1, the Initial Australia Borrower 4, the Initial Multicurrency Borrower 2, the Initial Dutch Borrower 2, the Initial Dutch Borrower 3, the Initial Multicurrency Borrower 3 and the Initial Yen Borrower 1 and any Additional Borrowers (as defined below), the “ Borrowers ” and each individually a “ Borrower ”), Digital Realty Trust, Inc., (the “ Parent Guarantor ”), the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the lenders (the “ Required Lenders ”) and Citibank, N.A. (“ Citibank ”), as administrative agent for the Lenders (the “ Administrative Agent ”).

PRELIMINARY STATEMENTS:

(1) The Borrowers, the Parent Guarantor, the subsidiaries of the Borrowers party thereto, the Lenders, the Administrative Agent and the other financial institutions party thereto entered into a Global Senior Credit Agreement dated as of August 15, 2013 (the “ Existing Revolving Credit Agreement ”). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Existing Revolving Credit Agreement, as amended hereby;

(2) The Administrative Agent and the Borrowers wish to amend the Existing Revolving Credit Agreement to address recent changes made by the Association of Banks in Singapore and the Singapore Foreign Exchange Market Committee to the recommended process of determining LIBOR for borrowings in Singapore Dollars; and


(3) Subject to the terms and conditions herein, the Borrowers, the Administrative Agent and Required Lenders have agreed to amend the Existing Revolving Credit Agreement on the terms and subject to the conditions hereinafter set forth.

SECTION 1. Amendments to Existing Revolving Credit Agreement . The Existing Revolving Credit Agreement is, upon the occurrence of the Amendment Effective Date (as defined in Section 4 below), hereby amended as set forth below:

(a) The definition of “Interest Period” set forth in Section 1.01 of the Existing Revolving Credit Agreement is hereby amended by (i) deleting the word “and” at the end of clause (v) thereof and (ii) adding a new clause (vii) to read in full as follows:

“(vii) with respect to the Singapore Dollar Revolving Credit Facility, the available Interest Period durations shall be one, three and six months only; and”

(b) The definition of “Market Disruption Event” set forth in Section 1.01 of the Existing Revolving Credit Agreement is hereby amended by replacing the words “11:00 A.M. (Singapore time)” in the second line thereof with “12:00 P.M. (London time)”.

(c) The definition of “Singapore Business Day” set forth in Section 1.01 of the Existing Revolving Credit Agreement is hereby amended by inserting the words “and London, England” immediately before the period at the end thereof.

(d) The definition of “SOR” set forth in Section 1.01 of the Existing Revolving Credit Agreement is hereby deleted in its entirety and replaced with the following:

“SOR ” means in relation to (a) any Singapore Dollar Revolving Credit Advance in Singapore Dollars, (i) the rate appearing under the caption “SGD SOR Rates” on the ABSFIX01 of the Reuters Monitor Money Rates Services at 12:00 P.M. (London time) on the applicable Quotation Day or (ii) if no such rate is available, the rate reasonably determined by the Administrative Agent as the rate quoted to leading banks in the Singapore interbank market as of 12:00 P.M. (London time) on the Quotation Day for the offering of deposits in Singapore Dollars for a period comparable to the applicable Interest Period, and (b) any Swing Line Advance in Singapore Dollars, (i) the rate quoted to the Administrative Agent by Citibank, N.A., Singapore Branch, as the rate in the Singapore interbank market as of 12:00 P.M. (Singapore time) on the day of such Swing Line Advance or (ii) if no such rate is available, the rate reasonably determined by the Administrative Agent as the rate quoted to leading banks in the Singapore interbank market as of 12:00 P.M. Singapore time on the day of such Swing Line Advance.”

SECTION 2. Conditions of Effectiveness . This Amendment shall become effective as of the first date (the “ Amendment Effective Date ”) on which, and only if, each of the following conditions precedent shall have been satisfied:

(a) The Administrative Agent shall have received on or before the date hereof, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified):

 

2


(i) Counterparts of this Amendment executed by the Borrowers and each Required Lender or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment.

(ii) The consent attached hereto (the “ Consent ”) executed by each of the Guarantors.

(b) All of the accrued fees of the Administrative Agent and the Lenders and all reasonable expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid in full.

SECTION 3. Reference to and Effect on the Existing Revolving Credit Agreement, the Notes and the Loan Documents . (a) On and after the effectiveness of this Amendment, each reference in the Existing Revolving Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Existing Revolving Credit Agreement, and each reference in the Notes and each of the other Loan Documents to “the Loan Agreement”, “thereunder”, “thereof” or words of like import referring to the Existing Revolving Credit Agreement, shall mean and be a reference to the Existing Revolving Credit Agreement, as amended and modified by this Amendment.

(b) The Existing Revolving Credit Agreement, the Notes and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.

(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

(d) This Amendment shall not extinguish the obligations for the payment of money outstanding under the Existing Revolving Credit Agreement. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Existing Revolving Credit Agreement, which shall remain in full force and effect, except to any extent modified hereby or as provided in the exhibits hereto. Nothing implied in this Amendment or in any other document contemplated hereby shall be construed as a release or other discharge of any of the Loan Parties from the Loan Documents.

SECTION 4. Costs and Expenses . The Borrowers agrees to pay on demand all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section 9.04 of the Existing Revolving Credit Agreement.

SECTION 5. Execution in Counterparts . This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile shall be effective as delivery of a manually executed counterpart of this Amendment.

 

3


SECTION 6. Governing Law . This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.

[Balance of page intentionally left blank.]

 

4


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

BORROWERS:
DIGITAL REALTY TRUST, L.P.,
a Maryland limited partnership
    By:   DIGITAL REALTY TRUST, INC.,
  its sole general partner
  By:  

/s/ A. William Stein

    Name: A. William Stein
   

Title:   Chief Financial Officer and Chief

            Investment Officer

DIGITAL REALTY DATAFIRM, LLC,
a Delaware limited liability company
    By:   DIGITAL REALTY TRUST, L.P.,
          its sole member and manager
    By:   DIGITAL REALTY TRUST, INC.,
          its sole general partner
  By:  

/s/ A. William Stein

    Name: A. William Stein
   

Title:   Chief Financial Officer and Chief

            Investment Officer

DIGITAL REALTY DATAFIRM 2, LLC,
a Delaware limited liability company
    By:   DIGITAL REALTY TRUST, L.P.,
  its sole member and manager
    By:   DIGITAL REALTY TRUST, INC.,
  its sole general partner
 

By:

 

/s/ A. William Stein

    Name: A. William Stein
    Title:   Chief Financial Officer and
    Chief Investment Officer

 

Signature Page


DIGITAL LUXEMBOURG II S.À R.L.,
a Luxembourg Société à responsabilité limitée

Registered office: 11, Boulevard du Prince Henri, L-1724,

Luxembourg

Share capital: EUR 1,600,500
R.C.S. Luxembourg: B110.214
By:  

  /s/ A. William Stein

  Name: A. William Stein, Authorized Signatory
DIGITAL LUXEMBOURG III S.À R.L.,
a Luxembourg Société à responsabilité limitée
Registered office: 11, Boulevard du Prince Henri
L-1724 Luxembourg
Share capital: £ 25,823
R.C.S. Luxembourg: B 141.552
By:  

  /s/ A. William Stein

  Name: A. William Stein, Authorized Signatory
DIGITAL SINGAPORE JURONG EAST PTE. LTD.,
a Singapore private company limited by shares
By:  

  /s/ A. William Stein

  Name: A. William Stein, Authorized Signatory
DIGITAL REALTY (BLANCHARDSTOWN) LIMITED,
an Ireland private company limited by shares
By:  

  /s/ Joshua A. Mills

  Name: Joshua A. Mills
  Title: Director

 

Signature Page


DIGITAL HK JV HOLDING LIMITED,
a British Virgin Islands limited company
By:  

  /s/ Joshua A. Mills

  Name:  Joshua A. Mills
  Title:  Director
DIGITAL NETHERLANDS VIII B.V.,
a Dutch private company with limited liability
By:  

  /s/ Joshua A. Mills

  Name:  Joshua A. Mills
  Title:  Director
DIGITAL DEER PARK 2, LLC,
a Delaware limited liability company
    By: Digital Realty Trust, L.P.,
    its manager

    By: Digital Realty Trust, Inc.,

    its general partner
    By:  

  /s/ A. William Stein

  Name:  A. William Stein
  Title:  Chief Financial Officer and
              Chief Investment Officer
DIGITAL NETHERLANDS IV, B.V.,
a Dutch private company with limited liability
By:  

  /s/ A. William Stein

  Name: A. William Stein, Authorized Person

 

Signature Page


DIGITAL STOUT HOLDING, LLC,
a Delaware limited liability company
    By: Digital Realty Trust, L.P.,
    its manager
    By: Digital Realty Trust, Inc.,
    its general partner
              By:  

  /s/ A. William Stein

    Name:  A. William Stein
    Title:  Chief Financial Officer and
              Chief Investment Officer
DIGITAL MACQUARIE PARK, LLC,
a Delaware limited liability company
    By: Digital Realty Trust, L.P.,
    its manager
    By: Digital Realty Trust, Inc.,
    its general partner
              By:  

  /s/ A. William Stein

    Name:  A. William Stein
    Title:  Chief Financial Officer and
              Chief Investment Officer
DIGITAL GOUGH, LLC,
a Delaware limited liability company
    By: Digital Realty Trust, L.P.,
    its manager
    By: Digital Realty Trust, Inc.,
    its general partner
              By  

  /s/ A. William Stein

    Name:  A. William Stein
    Title:  Chief Financial Officer and
              Chief Investment Officer

 

Signature Page


DIGITAL JAPAN, LLC,
a Delaware limited liability company
    By: Digital Asia, LLC,
    its member
    By: Digital Realty Trust, L.P.,
    its manager
    By Digital Realty Trust, Inc.,
    its general partner
    By:  

  /s/ A. William Stein

  Name:  A. William Stein
  Title:  Chief Financial Officer and
            Chief Investment Officer
DIGITAL NETHERLANDS I B.V.,
a Dutch private company with limited liability
By:  

  /s/ A. William Stein

  Name:  A. William Stein, Authorized Person
DIGITAL AUSTRALIA FINCO PTY LTD.
By:  

  /s/ Joshua A. Mills

  Name:  Joshua A. Mills
  Title:  Director

 

Signature Page


DIGITAL OSAKA 1 TMK

  /s/ Joshua A. Mills

    Name:  Joshua A. Mills
    Title:  Director

 

Signature Page


PARENT GUARANTOR:
DIGITAL REALTY TRUST, INC.,
a Maryland corporation
            By:  

  /s/ A. William Stein

  Name:  A. William Stein
  Title:  Chief Financial Officer and
            Chief Investment Officer

 

Signature Page


ADMINISTRATIVE AGENT:
         CITIBANK, N.A.
        By:  

  /s/ John C. Rowland

  Name: John C. Rowland
  Title: Vice President

 

Signature Page


CITIBANK, N.A.,
as a Lender
By:  

/s/ John C. Rowland

  Name: John C. Rowland
  Title: Vice President

 

Signature Page


CITIBANK N.A., SYDNEY BRANCH,
as a Lender
By:  

/s/ Stephen Daly

  Name: Stephen Daly
  Title: Director
By:  

/s/ Martin Fox

  Name: Martin Fox
  Title: Vice President

 

Signature Page


CITIBANK, N.A., SINGAPORE BRANCH,
as a Lender
By:  

/s/ Ajay Sharma

  Name: Ajay Sharma
  Title: Managing Director

 

Signature Page


CITIBANK, N.A., LONDON BRANCH,
as a Lender
By:  

/s/ Mark Lightbown

 

Name: Mark Lightbown

Title: Vice President

 

Signature Page


CITIBANK JAPAN LTD.,
as a Lender
By:  

/s/ Aziz Dean

 

Name: Aziz Dean

Title: Vice President, Head of Corporate Finance

 

Signature Page


BANK OF AMERICA, N.A.
as a Lender
By:  

/s/ William P. Foley

  Name: William P. Foley
  Title: Vice President

 

Signature Page


JPMORGAN CHASE BANK, N.A.
as a Lender
By:  

/s/ Kimberly Turner

  Name: Kimberly Turner
  Title: Executive Director

 

Signature Page


BARCLAYS BANK PLC,
as a Lender
By:  

/s/ Noam Azachi

  Name: Noam Azachi
  Title: Vice President

 

Signature Page


CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
as a Lender
By:  

/s/ Mikhail Faybusovich

  Name: Mikhail Faybusovich
  Title: Authorized Signatory
By:  

/s/ Jean-Marc Vauclair

  Name: Jean-Marc Vauclair
  Title: Authorized Signatory

 

Signature Page


DEUTSCHE BANK AG NEW YORK BRANCH,
as a Lender
By:  

/s/ James Rolison

  Name: James Rolison
  Title: Managing Director
By:  

/s/ Joanna Soliman

  Name: Joanna Soliman
  Title: Vice President

 

Signature Page


DEUTSCHE BANK AG SINGAPORE BRANCH,
as a Lender
By:  

/s/ David Cheng Chi-Jian

  Name: Cheng Chi-Jian, David
  Title: Director
By:  

/s/ Steffen Alexander Johann Friedrich Limbach

  Name: Limbach, Steffen Alexander Johann             Friedrich
  Title: Director

 

Signature Page


Goldman Sachs Bank USA,
as a Lender
By:  

/s/ Michelle Latzoni

  Name: Michelle Latzoni
  Title: Authorized Signatory

 

Signature Page


Goldman Sachs Lending Partners LLC,
as a Lender
By:  

/s/ Michelle Latzoni

  Name: Michelle Latzoni
  Title: Authorized Signatory

 

Signature Page


ROYAL BANK OF CANADA,
as a Lender
By:  

/s/ Brian Gross

  Name: Brian Gross
  Title: Authorized Signatory

 

Signature Page


WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By:  

/s/ Kevin A. Stacker

  Name: Kevin A. Stacker
  Title: Vice President

 

Signature Page


COMPASS BANK,
as a Lender
By:  

/s/ Brian Tuerff

  Name: Brian Tuerff
  Title: Senior Vice President

 

Signature Page


HSBC BANK USA, N.A.
as a Lender
By:  

/s/ Adriana Collins

  Name: Adrianna Collins
  Title: Vice President

 

Signature Page


LLOYDS BANK PLC, formerly known as Lloyds
TSB Bank plc
as a Lender
By:  

/s/ Stephen Giacolone

  Name: Stephen Giacolone
  Title: Assistant Vice President G011
By:  

/s/ Karen Weich

  Name: Karen Weich
  Title: Vice President W011

 

Signature Page


SUNTRUST BANK,
as a Lender
By:  

/s/ Nancy B. Richards

  Name: Nancy B. Richards
  Title: Senior Vice President

 

Signature Page


THE ROYAL BANK OF SCOTLAND PLC,
as a Lender
By:  

/s/ Jeannine Pascal

  Name: Jeannine Pascal
  Title: Vice President

 

Signature Page


THE BANK OF NOVA SCOTIA, SINGAPORE
BRANCH,
as a Lender
By:  

/s/ Gabriel Low Boon Tiong

  Name: Gabriel Low Boon Tiong
  Title: Director, Head of Operations

 

Signature Page


SCOTIABANK EUROPE PLC,
as a Lender
By:  

/s/ John O’Connor

  Name: John O’Connor
  Title: Head of Credit Risk Control
By:  

/s/ Steve Caller

  Name: Steve Caller
  Title: Manager, Credit Risk Control

 

Signature Page


TD Bank, N.A.,
as a Lender
By:  

/s/ Michael J. Pappas

  Name: Michael J. Pappas
  Title: Vice President

 

Signature Page


MORGAN STANLEY BANK, N.A.,
as a Lender
By:  

/s/ Nick Zangari

  Name: Nick Zangari
  Title: Authorized Signatory

 

Signature Page


SUMITOMO MISUI BANKING CORPORATION,
as a Lender
By:  

/s/ William G. Karl

  Name: William G. Karl
  Title: General Manager

 

Signature Page


US BANK NATIONAL ASSOCIATION, a
national banking association,
as a Lender
By:  

/s/ Michael Diemer

  Name: Michael Diemer
  Title: Vice President

 

Signature Page


AUSTRALIAN AND NEW ZEALAND
BANKING GROUP,
as a Lender
By:  

/s/ Grace Irvin

  Name: Grace Irvin
  Title: Director

 

Signature Page


BRANCH BANKING AND TRUST COMPANY,
as a Lender
By:  

/s/ Ahaz A. Armstrong

  Name: Ahaz A. Armstrong
  Title: Assistant Vice President

 

Signature Page


RAYMOND JAMES BANK, N.A.,
as a Lender
By:  

/s/ Thomas G. Scott

  Name: Thomas G. Scott
  Title: Senior Vice President

 

Signature Page


CITY NATIONAL BANK, a national banking
association
as a Lender
By:  

/s/ John Finnigan

  Name: John Finnigan
  Title: Senior Vice President

 

Signature Page


CONSENT

Dated as of December 11, 2013

Each of the undersigned, as a Guarantor under the Existing Revolving Credit Agreement referred to in the foregoing Amendment, hereby consents to such Amendment and hereby confirms and agrees that notwithstanding the effectiveness of such Amendment, the Guaranty contained in the Existing Revolving Credit Agreement is and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of such Amendment, each reference in the Loan Documents to “Loan Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference to the Existing Revolving Credit Agreement, as amended and modified by such Amendment.

[Balance of page intentionally left blank.]


GUARANTORS:

DIGITAL REALTY TRUST, L.P.,

a Maryland limited partnership

    By:  

DIGITAL REALTY TRUST, INC.,

 

its sole general partner

  By:  

/s/ A. William Stein

    Name: A. William Stein
    Title: Chief Financial Officer and Chief
              Investment Officer

DIGITAL REALTY TRUST, INC.,

a Maryland corporation

  By:  

/s/ A. William Stein

    Name: A. William Stein
   

Title: Chief Financial Officer and Chief

          Investment Officer

 

Signature Page to Consent

Exhibit 10.32

RELEASE OF GUARANTORS

Dated as of January 27, 2014

THIS RELEASE OF GUARANTORS (this “ Release ”) is executed and delivered by Digital Realty Trust, L.P. (the “ Company ”), Prudential Investment Management, Inc. (“ PIM ”) and the other Purchasers party to the Note Agreement referred to below.

PRELIMINARY STATEMENTS:

(1) The Company, Digital Realty Trust, Inc. (the “ Parent Guarantor ”), the subsidiaries of the Company party thereto and the Purchasers from time to time party thereto have entered into an Amended and Restated Note Purchase and Private Shelf Agreement, dated as of November 3, 2011 (as amended, supplemented or otherwise modified from time to time, the “ Note Agreement ”). Capitalized terms not otherwise defined in this Release have the same meanings as specified in the Note Agreement.

(2) The Company has requested that each of Digital 113 N. Myers, LLC and Digital 125 N. Myers, LLC be released from its obligations as a Subsidiary Guarantor and the Required Holders have agreed to effect such release on the terms and subject to the conditions hereinafter set forth.

SECTION 1. Release of Obligations . Upon the occurrence of the Release Effective Date (as defined in Section 3 below), each of Digital 113 N. Myers, LLC and Digital 125 N. Myers, LLC shall be released in full from its obligations under the Note Agreement (including, without limitation, its obligations as a Subsidiary Guarantor under Section 21 of the Note Agreement) and the other Transaction Documents.

SECTION 2. Representations and Warranties . The Company hereby represents and warrants that the representations and warranties contained in Section 5 of the Note Agreement are correct on and as of the Release Effective Date (as defined below), immediately before and immediately after giving effect to this Release, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to an earlier date, in which case such representation and warranty is correct as of such earlier date).

SECTION 3. Conditions of Effectiveness . This Release shall become effective as of the first date (the “ Release Effective Date ”) on which, and only if, each of the following conditions precedent shall have been satisfied:

(a) The Purchasers shall have received (i) counterparts of this Release executed by the parties hereto, and (ii) the consent attached hereto (the “ Consent ”) executed by each of the Guarantors (other than Digital 113 N. Myers, LLC and Digital 125 N. Myers, LLC).

(b) The representations and warranties of each of the Credit Parties in Section 5 of the Note Agreement shall be correct on and as of the Release Effective Date, immediately before and, in the case of each of the Credit Parties other than Digital 113 N. Myers, LLC and Digital 125 N. Myers, LLC, immediately after giving effect to this Release, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to an earlier date, in which case such representation and warranty shall be correct as of such earlier date).


(c) No event shall have occurred and be continuing, immediately before or immediately after the effectiveness of this Release, that constitutes a Default.

(d) All of the reasonable out-of-pocket fees and expenses of PIM (including the reasonable fees and expenses of counsel for PIM) due and payable on the Release Effective Date shall have been paid in full.

This Release is subject to the provisions of Section 18 of the Note Agreement.

SECTION 4. Reference to and Effect on the Transaction Documents .

(a) On and after the effectiveness of this Release, each reference in the Note Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Note Agreement, and each reference in each of the other Transaction Documents to the “Agreement”, “Note Agreement”, “thereunder”, “thereof” or words of like import referring to the Note Agreement, shall mean and be a reference to the Note Agreement, after giving effect to this Release.

(b) On and after the effectiveness of this Release, each reference in the Note Agreement or other Transaction Document to “Guarantor”, “Guarantors”, “Subsidiary Guarantor”, or “Subsidiary Guarantors” shall mean and be a reference to the applicable term after giving effect to this Release.

(c) The Note Agreement, after giving effect to this Release, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed.

(d) Except for the release of each of Digital 113 N. Myers, LLC and Digital 125 N. Myers, LLC as provided in Section 1 of this Release, the execution, delivery and effectiveness of this Release shall not operate as a waiver of any right, power or remedy of any holder of a Note or PIM under any of the Transaction Documents, nor constitute a waiver of any provision of any of the Transaction Documents.

SECTION 5. Costs and Expenses . The Company agrees to pay on demand all reasonable out-of-pocket costs and expenses of PIM in connection with the preparation, execution, delivery and administration, modification and amendment of this Release and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for PIM) in accordance with the terms of Section 16 of the Note Agreement.

SECTION 6. Execution in Counterparts . This Release may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Release by facsimile or email shall be effective as delivery of a manually executed counterpart of this Release.

SECTION 7. Governing Law . This Release shall be governed by, and construed in accordance with, the laws of the State of New York, excluding any choice-of-law principles of the law of such state that would permit the application of the laws of a jurisdiction other than such state.

[Balance of page intentionally left blank.]

 

2


IN WITNESS WHEREOF, the parties hereto have caused this Release to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

COMPANY:

DIGITAL REALTY TRUST, L.P.

By:   DIGITAL REALTY TRUST, INC.,

its sole general partner

By:  

/s/ A. William Stein

  Name:   A. William Stein
  Title:  Chief Financial Officer and Chief Investment Officer

ACKNOWLEDGED AND AGREED BY RELEASED SUBSIDIARY GUARANTORS :

 

DIGITAL 113 N. MYERS, LLC

By:    DIGITAL REALTY TRUST, L.P.,

its member and manager

By:    DIGITAL REALTY TRUST, INC., its sole general partner

By:  

/s/ A. William Stein

Name:  A. William Stein
Title:  Chief Financial Officer and Chief Investment Officer

DIGITAL 125 N. MYERS, LLC

By: DIGITAL REALTY TRUST, L.P.,

        its member and manager

By: DIGITAL REALTY TRUST, INC., its sole general partner

By:  

/s/ A. William Stein

Name:  A. William Stein
Title:  Chief Financial Officer and Chief Investment Officer


PURCHASERS:

PRUDENTIAL INVESTMENT MANAGEMENT, INC.

By:  

/s/ David Levine

  Name: David Levine
  Title: Vice President

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA

By:  

/s/ David Levine

  Name: David Levine
  Title: Vice President

PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY

By: Prudential Investment Management, Inc., as investment manager
By:  

/s/ David Levine

  Name: David Levine
  Title: Vice President

UNITED OF OMAHA LIFE INSURANCE COMPANY

By: Prudential Private Placement Investors, L.P. (as Investment Advisor)
By: Prudential Private Placement Investors, Inc. (as its General Partner)
By:  

/s/ David Levine

  Name: David Levine
  Title: Vice President


PRUCO LIFE INSURANCE COMPANY

By:  

/s/ David Levine

  Name: David Levine
  Title: Vice President

UNIVERSAL PRUDENTIAL ARIZONA REINSURANCE COMPANY

By: Prudential Investment Management, Inc., as investment manager
By:  

/s/ David Levine

  Name: David Levine
  Title: Vice President

PRUDENTIAL ARIZONA REINSURANCE CAPTIVE COMPANY

By: Prudential Investment Management, Inc., as investment manager
By:  

/s/ David Levine

  Name: David Levine
  Title: Vice President

PRUDENTIAL ANNUITIES LIFE ASSURANCE CORPORATION

By: Prudential Investment Management, Inc., as investment manager
By:  

/s/ David Levine

  Name: David Levine
  Title: Vice President


CONSENT

Dated as of January 9, 2014

Each of the undersigned, as a Guarantor under the Note Agreement referred to in the foregoing Release, hereby consents to such Release and hereby confirms and agrees that notwithstanding the effectiveness of such Release, the Multiparty Guaranty contained in the Note Agreement is and shall continue to be in full force and effect with respect to the undersigned Guarantors and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of such Release, each reference in the Transaction Documents to the “Agreement”, “Note Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference to the Note Agreement, after giving effect to such Release.

 

THE GUARANTORS:

DIGITAL REALTY TRUST, INC.

By:  

/s/ A. William Stein

Name: A. William Stein
Title: Chief Financial Officer and Chief Investment Officer

GLOBAL RIVERSIDE, LLC

By:   DIGITAL REALTY TRUST, L.P.,
  its member and manager
By:   DIGITAL REALTY TRUST, INC., its sole general partner
By:  

/s/ A. William Stein

Name: A. William Stein
Title: Chief Financial Officer and Chief Investment Officer

DIGITAL 2260 EAST EL SEGUNDO, LLC

By:   DIGITAL REALTY TRUST, L.P.,
  its member and manager
By:   DIGITAL REALTY TRUST INC., its sole general partner
By:  

/s/ A. William Stein

Name: A. William Stein
Title: Chief Financial Officer and Chief Investment Officer


DIGITAL 720 2ND, LLC

By:   DIGITAL REALTY TRUST, L.P.,
  its member and manager
By:   DIGITAL REALTY TRUST INC., its sole general partner
By:  

/s/ A. William Stein

Name: A. William Stein
Title: Chief Financial Officer and Chief Investment Officer

Exhibit 10.33

DIGITAL REALTY

DEFERRED COMPENSATION PLAN

As Adopted

Effective October 22, 2013


DIGITAL REALTY

DEFERRED COMPENSATION PLAN

WHEREAS, Digital Realty Trust, Inc. (the “ Company ”) desires to establish an unfunded deferred compensation plan, effective as of October 22, 2013 (the “ Effective Date ”), which provides supplemental retirement income benefits for a select group of highly compensated management employees through deferrals of Salary, Bonuses and Commissions.

NOW, THEREFORE, the Company hereby adopts and establishes this Digital Realty Deferred Compensation Plan, the terms of which are hereinafter set forth.

ARTICLE I

TITLE AND DEFINITIONS

 

1.1 Title . The name of this plan is the “Digital Realty Trust Deferred Compensation Plan .”

 

1.2 Definitions . Whenever the following capitalized words are used in this Plan, they shall have the meanings specified below.

 

  a) Account ” shall have the meaning provided in Section 4.1 hereof.

 

  b) Account Value ” shall have the meaning provided in Section 4.3 hereof.

 

  c) Beneficiary ” means the person or persons, including a trustee, personal representative or other fiduciary, last designated in writing by a Participant in accordance with procedures established by the Committee to receive the benefits specified hereunder in the event of the Participant’s death. No beneficiary designation shall become effective until it is filed with the Committee. If there is no Beneficiary designation in effect for a Participant, or if there is no surviving designated Beneficiary, then the benefits specified hereunder shall be distributed in accordance with the applicable laws of descent and distribution.

 

  d) Board ” means the Board of Directors of the Company.

 

  e) Bonus ” means any gross annual cash incentive bonus which is awarded by the Company, the Partnership or any Subsidiary to the Participant.

 

  f) Change in Control ” shall mean the occurrence of any of the following events:

 

  (i)

A transaction or series of transactions (other than an offering of the Company’s common stock to the general public through a registration statement filed with the Securities and Exchange Commission) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended) (other than the Company, the Partnership, any of their respective Subsidiaries, an employee benefit plan maintained by the Company, the Partnership or any of their respective Subsidiaries or a “person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company and immediately


  after such acquisition possesses more than thirty-five percent (35%) of the total combined voting power of the Company’s securities outstanding immediately after such acquisition; or

 

  (ii) Individuals who, as of the Effective Date, constitute the Board together with any new director(s) (other than a director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in Section 1.2(f)(i) hereof or Section 1.2(f)(iii) hereof) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least a majority of the directors then still in office who either were directors as of the Effective Time or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or

 

  (iii) The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination, (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case, other than a transaction:

 

  (A) Which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the entity that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such entity, the “ Successor Entity ”)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and

 

  (B) After which no person or group beneficially owns voting securities representing thirty-five percent (35%) or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this Section 1.2(f)(iii)(B) as beneficially owning thirty-five percent (35%) or more of combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction; or

 

  (iv) Approval by the Company’s stockholders of a liquidation or dissolution of the Company.

Notwithstanding the foregoing, the transaction or event described in subsection (i), (ii), (iii) or (iv) shall only constitute a Change in Control if such transaction also constitutes a “change in control event” (within the meaning of Code Section 409A). The Committee shall have full and final authority to determine conclusively whether a Change in Control of the Company has occurred pursuant to the above definition, the date of the occurrence of such Change in Control and any incidental matters relating thereto.

 

  g) Claimant ” shall have the meaning set forth in Section 7.6(a) hereof.

 

  h) Code ” means the Internal Revenue Code of 1986, as amended.

 

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  i) Committee ” shall have the meaning set forth in Section 7.1 hereof.

 

  j) Company ” means Digital Realty Trust, Inc., a Maryland corporation, and its successors or assigns.

 

  k) Commission ” means any gross cash commission earned by the Participant that is payable by the Company, the Partnership or any Subsidiary.

 

  l) Company Account Plan ” means any “account balance” nonqualified deferred compensation plan (within the meaning of Section 409A) maintained by the Company or any entity constituting a single employer with the Company within the meaning of Code Section 414(b) or (c).

 

  m) Compensation ” shall include each of Salary, Commission and Bonus.

 

  n) Disability ” means a “disability” within the meaning of Section 409A.

 

  o) Effective Date ” means the date on which the Plan is adopted by the Board.

 

  p) Election ” means any Initial Deferral Election or any Subsequent Plan-Year Deferral Election.

 

  q) Election Form ” shall have the meaning provided in Section 3.1(d) below.

 

  r) Eligible Service Provider ” means each Employee who is (i) employed by the Company, the Partnership or any Subsidiary, and (ii) a member of a select group of management or highly compensated employees of the Company within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA and any regulations promulgated thereunder.

 

  s) Employee ” means each employee (as defined in accordance with Section 3401(c) of the Code) of the Company, the Partnership or any Subsidiary who (i) is a Level 9 (or higher) employee and (ii) whose principal place of employment with the Company, the Partnership or such Subsidiary is in the United States.

 

  t) ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

 

  u) In-Service Distribution ” means a distribution or distributions of deferred Compensation, together with any gains or losses credited thereto, made or, in the case of installment distributions, beginning, in either case, pursuant to an Election to receive such distribution(s) on a specified date prior to the occurrence of the Participant’s Separation from Service, death or Disability.

 

  v) Initial Deferral Election ” means a Participant’s valid election, made on an Election Form, with respect to the deferral of Salary, Commission and/or Bonus, as applicable, under the Plan, in any case, submitted to the Committee (or its designee) during such Participant’s Initial Election Period.

 

  w)

Initial Election Period ” means, for each Eligible Service Provider, (i) if the Employee is an Eligible Service Provider as of the Effective Date, the period prescribed by the Committee ending no later than December 31, 2013, or (ii) if the Employee is not an Eligible Service Provider as of the Effective Date, the period ending thirty (30) days after the date he or she becomes eligible to participate in any Company Account Plan. For purposes of this Plan, (A) if an Employee who is not an Eligible Service Provider on the Effective Date first becomes eligible to participate in any

 

4


  Company Account Plan following the Effective Date, such Eligible Service Provider’s thirty (30)-day Initial Election Period shall commence on the first date of eligibility under such other plan, and (ii) if such Eligible Service Provider cannot or otherwise does not make an Initial Deferral Election under this Plan by filing a valid Election Form with the Committee prior to the expiration of such thirty (30)-day period, then such Eligible Service Provider shall only be permitted to make deferral elections under this Plan during Subsequent Election Periods. For the avoidance of doubt, Election Forms filed during an Initial Election Period with respect to any Compensation on or after the first day of the calendar year in which such Compensation is earned shall only apply to amounts earned after the date that such Election takes effect or such later date as may be prescribed in the applicable Election Form (except, to the extent permitted by Section 409A, with respect to Performance-Based Compensation in the event that the Committee determines to allow an Eligible Service Provider to make an election with respect to such Performance-Based Compensation under Treas. Reg. 1.409A-2(a)(8)).

 

  x) Investment Alternative ” means an investment alternative selected by the Committee pursuant to Section 3.3(d) hereof.

 

  y) Participant ” means any Eligible Service Provider who makes a valid Election in accordance with Section 3.1 hereof.

 

  z) Partnership ” means Digital Realty Trust, L.P.

 

  aa) Payment Date ” means the Company’s first regular payroll date to occur during the month of July.

 

  bb) Performance-Based Compensation ” shall mean “performance-based compensation” within the meaning of Section 409A.

 

  cc) Plan ” shall mean the Digital Realty Deferred Compensation Plan set forth herein, as may be amended from time to time.

 

  dd) Plan Year ” means the calendar year.

 

  ee) Reallocation Form ” means a form (which may be in paper or electronic format) prescribed by the Committee and made available to Participants that Participants may use to reallocate their Accounts amongst available Investment Alternatives and/or to specify the allocation of future deferrals amongst available Investment Alternatives.

 

  ff) Salary ” means an Employee Participant’s gross base salary paid by the Company, the Partnership or any Subsidiary.

 

  gg) Section 409A ” shall have the meaning provided in Section 8.2 below.

 

  hh) Separation from Service ” means a “separation from service” (within the meaning of Section 409A) from the Company and all persons who, together with the Company, constitute the “service recipient” within the meaning of Section 409A and Treas. Reg. 1.409A-1(h).

 

  ii) Specified Employee ” shall mean any Participant who is, or was at any time during the twelve (12)-month period ending on the Company’s “specified employee identification date,” a “specified employee” of the Company (each within the meaning of Section 409A).

 

5


  jj) Specified Employee Payment Date ” shall have the meaning provided in Section 6.2 below.

 

  kk) Subaccount ” shall mean any subaccount of an Account described in Section 4.1 below.

 

  ll) Subsequent Election Period ” means one or more periods after an Eligible Service Provider’s Initial Election Period during which such Eligible Service Provider may make a Subsequent Plan-Year Deferral Election, which period(s) shall be prescribed by the Committee and shall end no later than December 31 st of the year preceding the year in which any Compensation subject to such election is earned, provided , that the Committee may, in its discretion, provide that such election period(s) with respect to any Compensation that constitutes Performance-Based Compensation shall end no later than the date that is at least six (6) months before the end of the applicable performance period in which such Compensation that constitutes Performance-Based Compensation subject to such election is earned (June 30 th for any calendar-year performance period).

 

  mm) Subsequent Plan-Year Deferral Election ” means a Participant’s valid election, made on an Election Form, with respect to the deferral of Salary, Commission and/or Bonus, as applicable, under the Plan, in any case, submitted to the Committee (or its designee) during any Subsequent Election Period.

 

  nn) Subsidiary ” means a corporation, association or other business entity of which fifty percent (50%) or more of the total combined voting power of all classes of capital stock is owned, directly or indirectly, by the Company or the Partnership, including (i) any such Subsidiary owned by one or more Company or Partnership Subsidiaries or by the Company or the Partnership together with one or more Company or Partnership Subsidiaries, (ii) any partnership or limited liability company of which fifty percent (50%) or more of the capital and profits interests are owned, directly or indirectly, by the Company, the Partnership or by one or more Company or Partnership Subsidiaries or by the Company or the Partnership together with one or more Company or Partnership Subsidiaries, and (iii) any other entity not described in clauses (i) or (ii) above of which fifty percent (50%) or more of the ownership and the power, pursuant to a written contract or agreement, to direct the policies and management or the financial and the other affairs thereof, are owned or controlled by the Company, the Partnership, one or more other Company or Partnership Subsidiaries or the Company or the Partnership together with one or more Company or Partnership Subsidiaries.

 

  oo) Trust ” shall mean a “rabbi trust” satisfying the model trust conditions described in Treas. Rev. Proc. 92-64 and any subsequent Internal Revenue Service guidance affecting the validity of such ruling.

 

  pp) Unforeseeable Emergency ” shall mean an “unforeseeable emergency” within the meaning of Section 409A.

ARTICLE II

ELIGIBILITY AND PARTICIPATION

 

2.1

Eligibility . Employees shall be eligible to participate in the Plan as of the date on which any such individual qualifies as an Eligible Service Provider, subject to the terms and conditions of the Plan, including without limitation, restrictions as to the timing of Initial Deferral Elections. If a Participant receives a distribution of any portion of such Participant’s Account pursuant to Section 6.1(e) hereof, such Participant shall cease to be an Eligible Service Provider for purposes

 

6


  of making deferrals following such distribution unless and until re-designated by the Committee as an Eligible Service Provider.

 

2.2 Participation . An Eligible Service Provider shall become a Participant in the Plan by submitting a valid Election to the Committee (or its designee) in accordance with Section 3.1 hereof.

ARTICLE III

DEFERRAL ELECTIONS; INVESTMENT ELECTIONS

 

3.1 Elections to Defer Salary, Commission and/or Bonus .

 

  a) Initial Deferral Election . Each Eligible Service Provider shall be permitted to make an Initial Deferral Election during the Initial Election Period applicable to such Eligible Service Provider by submitting to the Committee (or its designee) an Election Form on or prior to the last day of such Eligible Service Provider’s Initial Election Period. If an Employee’s Initial Election Period expires prior to the time at which such Employee becomes an Eligible Service Provider under this Plan (whether due to prior eligibility under a Company Account Plan or otherwise), then such Employee shall not be permitted to defer any Compensation under this Plan until the first Subsequent Election Period occurring on or after the date on which such Employee becomes an Eligible Service Provider under this Plan (including any such Subsequent Election Period that coincides with the period which would have constituted such Eligible Service Provider’s Initial Deferral Period under this Plan, but for such individual’s prior eligibility under a Company Account Plan). If a Subsequent Plan-Year Deferral Election is not made with respect to any subsequent Plan Year under this Article III, an Eligible Service Provider’s Compensation with respect to such subsequent Plan Year will not be deferred under the Plan.

 

  b) Subsequent Plan-Year Deferral Elections . Each Eligible Service Provider shall be permitted to make a Subsequent Plan-Year Deferral Election in any Subsequent Election Period during which such individual remains an Eligible Service Provider by submitting to the Committee (or its designee) an Election Form on or prior to the last day of the applicable Subsequent Election Period. Elections contained in a Subsequent Plan-Year Deferral Election shall apply only to Compensation earned in the Plan Year following the year in which such Subsequent Plan-Year Deferral Elections are made (or, to the extent permitted by the Committee in its discretion, with respect to any Compensation that constitutes Performance-Based Compensation, during the Plan Year in which such Subsequent Plan-Year Deferral Elections are made, provided that such Elections are made more than six (6) months prior to the end of the applicable performance period) and shall, in no event, modify the terms or conditions of deferrals or the time or form of distributions subject to prior Elections that have previously become irrevocable. If an Eligible Service Provider’s Initial Election Period occurs, in part or in whole, during any period which would constitute a Subsequent Election Period for such Eligible Service Provider had it occurred after such Eligible Service Provider’s Initial Election Period, then such Eligible Service Provider shall, as determined in the sole discretion of the Committee, be permitted to make either (i) a single Election with respect to amounts covered by both the Initial and Subsequent Plan-Year Deferral Elections, or (ii) separate Initial and Subsequent Plan-Year Deferral Elections with respect to amounts deferrable and/or distributable under each such Election, in either case, by timely submitting the appropriate Election Form(s) to the Committee (or its designee).

 

  c)

Re-Deferral Elections . Participants may re-defer amounts previously deferred under an Initial or Subsequent Plan-Year Deferral Election up to one time per Plan Year by completing and submitting to the Committee a new Election Form in accordance with any rules or policies issued by the Committee with regard to such re-deferrals, provided , however, that (i) such re-deferral

 

7


  elections may only be made prior to such time as a Participant ceases to be an Employee, (ii) any such re-deferral must be made at least one (1) year prior to the first date on which any amounts subject to the re-deferral Election would otherwise be paid, absent such re-deferral, (iii) such re-deferral election shall not take effect until at least twelve (12) months after the date on which the re-deferral election is made, (iv) the payment with respect to which such re-deferral election is made must be deferred for an additional period of not less than five (5) years from the date such payment would otherwise have been paid, and (v) any such re-deferral must be timely submitted to the Committee (or its designee) on a form (which may be in paper or electronic format) prescribed by the Committee.

 

  d) Election Forms . Participants shall effectuate Elections (and any re-deferral Elections) by completing and submitting to the Committee (or its designee) a deferral election form (which may be in paper or electronic format) prescribed by the Committee (such form, an “ Election Form ”) in which Participants specify, at a minimum:

 

  (i) subject to Section 3.1(f) hereof, the levels and types of Compensation to be deferred under the Election;

 

  (ii) the distribution event with respect to the Compensation deferred under the Election, which may include: (i) an In-Service Distribution, (ii) the Participant’s Separation from Service, (iii) the Participant’s death or Disability, and/or (iv) a Change in Control;

 

  (iii) to the extent that the Participant elects to receive an In-Service Distribution, subject to Article VI below, the specified year, if any, during which such In-Service Distribution shall be made (if a lump-sum) or begin (if installments);

 

  (iv) the form of payment applicable to distributions of the Participant’s Account or Subaccount, which may be either lump-sum or up to ten (10) installments; and

 

  (v) subject to Section 3.3 hereof, the allocation of deferred Compensation and/or earnings thereon amongst available Investment Alternatives in accordance with the terms of the Plan.

 

  e) Priority of Distributions . Of the distribution events specified by a Participant in an applicable Election Form, the first such distribution event to occur shall govern the distributions of the amounts subject to such Election and distributable on such distribution event. For the avoidance of doubt, if a Participant experiences a Separation from Service, dies, or experiences a Disability, or a Change in Control occurs, in any case, prior to the completion of any In-Service Distribution installment payments which have commenced prior to such Separation from Service, death, Disability or Change in Control, as applicable, amounts subject to such In-Service Distribution Election shall continue to be distributed in installments in accordance with Section 6.1(a) hereof.

 

  f)

Deferral Amounts . The Plan shall only be effective with respect to, and Eligible Service Providers may only elect to defer, Compensation earned on or after January 1, 2014. Notwithstanding the foregoing, with respect to any Employee who is not an Eligible Service Provider as of the Effective Date and first becomes eligible to participate in any Company Account Plan following the Effective Date, such Eligible Service Provider may only elect to defer Compensation earned on or after the date on which such Initial Deferral Election takes effect or such later date as may be prescribed by the Company in the applicable Initial Deferral Election form. Participants may, but are not required to, defer any or all of (i) Salary, (ii) Bonuses and/or (iii) Commissions as prescribed in the applicable Election Form. For the avoidance of doubt,

 

8


  Eligible Service Providers are not required to defer any Compensation under the Plan, and do so solely at their own election.

 

  g) Deferrals Irrevocable . Any Election to defer any Compensation that has not been revoked in a writing submitted to the Committee on or prior to the last day of the applicable Initial or Subsequent Election Period, as applicable, shall be irrevocable with respect to such Compensation. If an Eligible Service Provider fails to make a timely Election for any reason, then the Eligible Service Provider shall not be permitted to defer any Compensation under the Plan until the next Subsequent Election Period (unless a prior Election remains in effect with respect to such Participant’s Compensation, in which case such prior Election shall control).

 

  h) Deferral Effectiveness; Termination . Elections covering Compensation shall be effective with respect to amounts earned during the first pay period beginning after the end of the Initial or Subsequent Election Period in which such Elections are made or such later date as may be prescribed by the Committee or in the applicable Election Form (except, to the extent permitted by Section 409A, with respect to Performance-Based Compensation in the event that the Committee determines to allow an Eligible Service Provider to make an election with respect to such Performance-Based Compensation under Treas. Reg. 1.409A-2(a)(8)). Any Subsequent Plan-Year Deferral Election that is not revoked in a writing submitted to the Committee (or its designee) on or prior to the last day of the applicable Subsequent Election Period, shall be irrevocable with respect to amounts earned during the deferral period covered by such Subsequent Election Period.

 

3.3 Investment Elections .

 

  a) Initial Allocation . Each Participant shall designate in the first Election Form filed with the Committee (or its designee) by such Participant, the initial allocation of such Participant’s deferred Compensation and any earnings thereon amongst the Investment Alternatives available under the Plan, which allocation shall be designated in increments of whole integral percentage points. As determined by the Committee in its sole discretion, Participant allocation elections may either be individualized by Subaccount (if any) or may apply generally to all Subaccounts (if any) comprising a Participant’s Account. If a Participant fails to elect Investment Alternatives under this Section 3.3(a) with respect to some or all of such Participant’s Account balance or fails to elect a new Investment Alternative following the elimination of an Investment Alternative in which any portion of such Participant’s Account is notionally invested (as provided under Section 3.3(d) below), such Participant shall be deemed to have elected a notional investment in a money-market or similar account selected by the Committee with respect to such amounts.

 

  b) Subsequent Plan-Year Deferral Elections . Each Participant who makes a Subsequent Plan-Year Deferral Election (following any prior Election) may elect to allocate Compensation and any earnings thereon arising under such Subsequent Plan-Year Deferral Election in the same manner or differently from allocations designated in the preceding Election Form, as indicated by the Participant in the Election Form applicable to such Subsequent Plan-Year Deferral Election.

 

  c)

Reallocation . Each Participant may reallocate such Participant’s Account balance (including any earnings thereon) in whole integral percentage points amongst the available Investment Alternatives, as often as daily, by submitting a form (which may be in paper or electronic format) prescribed by the Committee to the Committee (or its designee) indicating the extent to which such reallocation applies to (i) any existing Account balances, and (ii) any future Compensation deferrals and earnings thereon. Account reallocations made in accordance with this Section 3.3(c) shall take effect no later than the first business day following the business day on which a

 

9


  valid reallocation form is received by the Committee (or its designee), unless received by the Committee after 1:00 p.m. (PST), in which case such reallocations shall take effect no later than the second business day following the business day on which a valid reallocation form is received by the Committee (or its designee).

 

  d) Investment Alternatives . The Investment Alternatives amongst which Participants shall be eligible to allocate and reallocate their Account balances, future deferrals and earnings on any of the foregoing shall be selected by the Committee. The Committee may from time to time change the available Investment Alternatives, either by eliminating existing Investment Alternatives, adding new Investment Alternatives, or both, provided , however , that no such change of available Investment Alternatives shall be made with retroactive effect. The Committee shall communicate any such changes in available Investment Alternatives to Participants as soon as reasonably practicable once known to the Committee.

 

  e) Notional Investments . Allocation of Participants’ Accounts amongst the Investment Alternatives shall be for purposes of tracking notional gains and losses on such amounts and shall create no obligation on the part of the Company, any Trust (or trustee thereof) or any other party to make any actual investments in such Investment Alternatives, whether in accordance with Participant allocations or otherwise. The Company or the Trust (if any) may, however, in its sole discretion, invest as it deems appropriate in one or more of the Investment Alternatives.

ARTICLE IV

ACCOUNTS

 

4.1. Accounts . The Committee shall establish and maintain (or cause to be established and maintained) a hypothetical bookkeeping account for each Participant for purposes of reflecting Compensation deferred by such Participant and any notional gains or losses thereon generated by the Investment Alternatives in which such bookkeeping account is notionally invested, as provided herein. The Committee may, in its sole discretion, create (or cause to be created) one or more Subaccounts under any Participant Account to reflect amounts which may be subject to different distribution schedules or otherwise as necessary or convenient to the administration of the Plan (such hypothetical accounts, together with any Subaccounts thereunder, the “ Accounts ”). Except as expressly provided in Section 6.3 hereof (with regard to the Trust), neither the Plan nor any of the Accounts established hereunder shall hold any actual investments, funds or assets or shall give any Participant or Beneficiary any right, interest or claim in any particular asset of the Company or any Trust, other than that of a general, unsecured creditor.

 

4.2 Crediting of Accounts . All Compensation properly deferred by Participants shall be credited to the Participants’ respective Accounts no later than the third business day following the date on which such deferred Compensation would otherwise have been paid to the deferring Participant.

 

4.3 Account Valuation; Statements . The Participants’ Accounts shall be valued periodically, but no less often than monthly, taking into account any increase or decrease in the value of the Investment Alternatives in which such Accounts are notionally invested (the “ Account Value ”). No less frequently than quarterly, statements of such Account valuations shall be made available to Participants either electronically or in a paper format under procedures established by the Committee (or its designee).

 

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ARTICLE V

VESTING

 

5.1 Compensation; Earnings . Subject to Section 8.5 below, all Compensation deferred by Participants under this Plan and any notional gains thereon shall be fully vested at all times, except that all such amounts shall be subject to reduction resulting from notional losses generated by Investment Alternatives in which such amounts are notionally invested in accordance with Participant Elections.

ARTICLE VI

DISTRIBUTIONS

 

6.1. Distribution of Benefits . Participants’ Accounts (or Subaccounts) shall be distributed to Participants in accordance with this Section 6.1 based on the distribution event(s) specified in the applicable Election Form. At the time a Participant elects to defer amounts hereunder, such Participant shall make an election with respect to the form of payment of such deferrals, in accordance with the requirements set forth below or as otherwise provided by the Committee, by filing an Election Form with the Committee. Lump-sum distributions shall be calculated based on the Account (or Subaccount) Value as of the most recent date, prior to the distribution, on which such Account (or Subaccount) Value was determined in accordance with Section 4.3 above. With respect to any designation of installment payment distributions, (i) payments shall begin on the initial applicable Payment Date or Change in Control date described in Sections 6.1(a) through (d) below and shall continue to be paid on each succeeding Payment Date until fully paid in accordance with such Election, and (ii) on each such distribution date, the Participant shall receive a portion of the Account (or Subaccount) Value allocable to such designation multiplied by a fraction, the numerator of which equals one and the denominator of which equals the number of installment payments remaining, including the payment subject to such calculation. Each such installment payment shall be calculated using the Account (or Subaccount) Value as of the most recent date, prior to such distribution, on which such Account (or Subaccount) Value was determined in accordance with Section 4.3 above. If no distribution election is made as to the form of payment or if the aggregate Account Value determined as set forth above as of the initial Payment Date or Change in Control date, as applicable, is less than $50,000, the distribution shall be in the form of a lump sum. This Section 6.1 shall be applied in a manner consistent with the provisions of Section 3.1(e) hereof.

 

  a) In-Service Distributions . With respect to Elections to receive an In-Service Distribution, a Participant may elect to receive his or her Account or Subaccount (determined on a Plan Year basis) in (i) two (2) to ten (10) annual installments as specified by the Committee in an Election Form, or (ii) a lump sum. Payment shall be made or commence, as applicable, on the Payment Date that occurs during the specified year of such In-Service Distribution.

 

  b) Separation from Service . With respect to Elections to commence distributions upon a Separation from Service, a Participant may elect to receive his or her Account or Subaccount (determined on a Plan Year basis) in (i) two (2) to ten (10) annual installments as specified by the Committee in an Election Form, or (ii) a lump sum. Subject to Section 6.2 below, payment shall be made or commence, as applicable, on the Payment Date that occurs in the calendar year immediately following the calendar year in which the Participant incurs a Separation from Service.

 

  c)

Death; Disability . With respect to Elections to commence distributions upon a Participant’s death or Disability, a Participant may elect to have his or her Account or Subaccount (determined on a

 

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  Plan Year basis) paid to his or her Beneficiary in (i) two (2) to ten (10) annual installments as specified by the Committee in an Election Form, or (ii) a lump sum. Payment shall be made or commence, as applicable, on the Payment Date that occurs in the calendar year immediately following the calendar year in which the Participant’s death occurs or the Participant incurs a Disability, as applicable.

 

  d) Change in Control . With respect to Elections to commence distributions upon a Change in Control, a Participant may elect to receive his or her Account or Subaccount (determined on a Plan Year basis) in (i) two (2) to ten (10) annual installments as specified by the Committee in an Election Form, or (ii) a lump sum. Payment shall be made or commence, as applicable, upon, or as soon as practicable after, the consummation of a Change in Control, based on the Account Value most recently determined prior to such distribution in accordance with Section 4.3 above.

 

  e) Unforeseeable Emergency . If a Participant experiences an Unforeseeable Emergency, the Committee may, in its sole discretion, permit an early distribution of that portion of such Participant’s Account reasonably necessary to satisfy the emergency need giving rise to the Unforeseeable Emergency, including any taxes or penalties reasonably anticipated to result from such distribution and taking into consideration any funds that may become available as a result of the termination of such Participant’s existing Election(s) in connection with such distribution, as described below. If the Participant’s Account is comprised of one or more Subaccounts, the Committee shall determine, in its sole discretion, from which Subaccount such funds shall be distributed. If a Participant takes a distribution pursuant to this Section 6.1(e), such Participant’s existing deferral Election shall immediately terminate with regard to Compensation not yet earned at the time of such distribution and the Participant shall only be eligible to make future Elections under the Plan as determined by the Committee, in its sole discretion and in accordance with Section 409A.

 

6.2 Specified Employees . Notwithstanding anything in this Plan or any Election Form to the contrary, with respect to any Participant who is a Specified Employee at the time of such Participant’s Separation from Service, as determined in the sole discretion of the Committee, the distribution of such Participant’s Account (and all Subaccounts) upon such Separation from Service shall, to the extent required so as not to result in a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, be delayed until the date which is six (6) months and one (1) day after the date on which such Separation from Service occurs (such delayed payment date, the “ Specified Employee Payment Date ”), provided , however , that to the extent that all or any portion of such Participant’s Account would have been distributed during the six (6)-month period following such Separation from Service, whether in a lump sum or installments, in either case, without regard to such Separation from Service, such amounts shall continue be distributed in accordance with such schedule without regard to this Section 6.2, and any remaining balance in such Participant’s Account shall be distributed on the Specified Employee Payment Date.

 

6.3 Trust . The Company may, in its sole discretion, establish a Trust for purposes of allocating funds to satisfy the obligations arising under this Plan. The rights of Participants and Beneficiaries (if any) with respect to any assets so held in Trust (if any) shall be governed by the terms and conditions of the document(s) creating such Trust.

ARTICLE VII

ADMINISTRATION

 

7.1

Administration . This Plan shall be administered by the Compensation Committee of the Board, which may, in its sole discretion, subject to the express provisions of this Plan, delegate its duties

 

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  and responsibilities to a committee comprised of one or more members of the Board and/or one or more employees of the Company, who shall serve at the pleasure of the Compensation Committee of the Board to administer the Plan. Notwithstanding anything to the contrary in this Article VII, (i) the Committee may appoint a plan administrator and/or other similar agent without taking formal action pursuant to this Article VII, (ii) the Committee may delegate the administration of ministerial duties with respect to the Plan to one or more individuals or sub-committees without taking formal action pursuant to this Article VII, and (iii) if the Committee makes any such appointment or delegation, the plan administrator, other agent and or delegate may act within the scope of its delegated authority without Committee approval of any such act. Appointees, designees and delegates pursuant to the preceding sentence need not be employees of the Company or members of the Board. References to the Committee throughout this Plan shall be understood to refer to the appropriate administrative body as provided under this Section 7.1 (the “Committee ), and shall include any appointee, designee or delegate of the Committee, as appropriate.

 

7.2 Committee Action . The Committee shall act at meetings by affirmative vote of a majority of the members of the Committee. Any action permitted to be taken at a meeting may be taken without a meeting if, prior to such action, a written consent to the action is signed by all members of the Committee and such written consent is filed with the minutes of the proceedings of the Committee. A member of the Committee shall not vote or act upon any matter which relates solely to himself or herself as a Participant or an Eligible Service Provider. The chairman, chairwoman or any other member or members of the Committee designated by the chairman or chairwoman may execute any certificate or other written direction on behalf of the Committee.

 

7.3 Powers and Duties of the Committee . The Committee, on behalf of the Participants and their Beneficiaries, shall administer the Plan in accordance with its terms, and shall have all powers necessary to accomplish its purposes, including, but not by way of limitation, the following:

 

  a) To designate Employees as Eligible Service Providers;

 

  b) To designate the commencement date of any Subsequent Election Periods;

 

  c) To select and modify Investment Alternatives in accordance with Section 3.3(d) hereof;

 

  d) To determine the Initial Deferral Period applicable to any Eligible Service Provider and to determine whether a leave of absence or other break in service or change in role constitutes a Separation from Service or otherwise affects eligibility under the Plan;

 

  e) To construe and interpret the terms and provisions of this Plan and to make all factual determinations relevant to the Plan;

 

  f) To compute the amount and kind of benefits payable to Participants and Beneficiaries;

 

  g) To maintain all records that may be necessary for the administration of the Plan;

 

  h) To provide for the disclosure of all information and the filing or provision of all reports and statements to Participants, Beneficiaries or governmental agencies as required by law;

 

  i) To make and publish such rules, forms, policies and procedures for the administration of the Plan as are not inconsistent with the terms hereof;

 

  j)

To appoint a plan administrator, other agent and/or one or more sub-committees or individuals to assist with the administration of the Plan and to delegate to them such

 

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  powers and duties in connection with the administration of the Plan as the Committee may from time to time prescribe;

 

  k) To direct and instruct the trustee of the Trust (if the Company establishes a Trust), to the extent the Company is authorized or required to do so under the Plan; and

 

  l) To take all actions set forth in this Plan document.

 

7.4 Construction and Interpretation . The Committee shall have full discretion to construe and interpret the terms and provisions of this Plan, which construction and interpretation shall be final and binding on all parties, including but not limited to the Company and all Participants and Beneficiaries.

 

7.5 Compensation, Expenses and Indemnity .

 

  a) Compensation . The members of the Committee, including members of any subcommittee and other individuals providing services in connection with the administration of this Plan, shall serve without compensation for their services hereunder.

 

  b) Agents, Advisors and Expenses . The Committee is authorized, at the expense of the Company, to employ such legal, financial and tax counsel, as well as any other agents that it deems advisable, to assist in the performance of its duties hereunder. Expenses and fees incurred in connection with the administration of the Plan, including without limitation the foregoing, shall be paid by the Company.

 

  c) Indemnification . To the greatest extent permitted by applicable law, the Company shall indemnify and hold harmless the Committee and each member thereof, the Board and any delegate of the Committee who is an Employee against any and all expenses, liabilities and claims, including without limitation any legal fees to defend against such liabilities and claims, in each case arising out of any such individual’s discharge in good faith of responsibilities under or incident to the Plan, but excluding any expenses and liabilities arising out of the willful misconduct of any such individual. This indemnity shall be additional to and not in limitation of any further indemnities that may be available under insurance purchased by the Company or provided by the Company under any bylaw, agreement or otherwise.

 

7.6 Disputes .

 

  a) Claimants . A person who believes that he or she is being denied a benefit to which he or she is entitled under the Plan (hereinafter referred to as “ Claimant ”) may file a written request for such benefit with the Committee, setting forth such Claimant’s claim.

 

  b)

Rendering and Notification of Decision . Upon receipt of a claim, the Committee shall advise the Claimant that a reply will be forthcoming within ninety (90) days and shall, in fact, deliver such reply within such period. The Committee may, however, at its sole discretion, extend the reply period for an additional ninety (90) days. If the claim is denied in whole or in part, the Committee shall inform the Claimant in writing, using language calculated to be understood by the Claimant, setting forth: (i) the specific reason or reasons for such denial; (ii) the specific reference to pertinent provisions of the Plan, any Election Form(s) or any other documentation on which such denial is based; (iii) a description of any additional material or information necessary for the Claimant to perfect his or her claim and an explanation why such material or such information is necessary; (iv) appropriate information as to the steps to be taken if the Claimant wishes

 

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  to submit the claim for review; and (v) the time limits for requesting a review under Section 7.6(c) hereof.

 

  c) Within sixty (60) days after the receipt by the Claimant of the written notification described in Section 7.6(b) hereof, the Claimant may make a request in writing for review of the determination of the Committee. Such request must be addressed to the Committee. The Claimant or his or her duly authorized representative may, but need not, review the pertinent documents and submit issues and comments in writing for consideration by the Committee. If the Claimant does not request a review within such sixty (60) day-period, he or she shall be barred and estopped from challenging the Committee’s determination.

 

  d) Within sixty (60) days after the Committee’s receipt of a request for review, the Committee shall review the request, taking into consideration all materials presented by the Claimant. The Committee will inform the Claimant in writing, in a manner calculated to be understood by the Claimant, of its decision setting forth the specific reasons for the decision and containing specific references to the pertinent provisions of the Plan on which the decision is based. If special circumstances require that the sixty (60)-day time period be extended, the Committee will so notify the Claimant and will render the decision as soon as possible, but no later than one hundred twenty (120) days after receipt of the request for review.

ARTICLE VIII

MISCELLANEOUS

 

8.1 Unsecured General Creditors . Participants and their Beneficiaries, heirs, successors, and assigns shall have no legal or equitable rights, claims, or interest in any specific property or assets of the Company or any Trust. Any and all of the Company’s assets and the Trust assets (if any) which are attributable to amounts paid into the Trust by the Company shall be, and remain, the general unpledged, unrestricted assets of the Company, which shall be subject to the claims of the Company’s general creditors. The Company’s obligation under the Plan shall be merely that of an unfunded and unsecured promise of the Company to pay money in the future, and the rights of the Participants and Beneficiaries shall be no greater than those of unsecured general creditors. It is the intention of the Company that the Plan (and the Trust, if any) be unfunded for purposes of the Code and for purposes of Title I of ERISA.

 

8.2 Section 409A . To the extent applicable, the Plan, all Election Forms and all other instruments evidencing amounts subject to the Plan shall be interpreted in accordance with Code Section 409A and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation, any such regulations or other guidance that may be issued after the Effective Date (together, “ Section 409A ”). Notwithstanding any provision of the Plan, any Election Form or any other instrument evidencing amounts subject to the Plan to the contrary, if the Committee determines that any amounts subject to the Plan may be or become subject to Section 409A, the Committee may adopt such amendments to the Plan, any Election Form(s) and any other instruments relating to the Plan, and/or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions as the Committee determines are necessary or appropriate to (a) exempt such amounts from Section 409A, or (b) comply with the requirements of Section 409A, in any case, to preserve the intended tax treatment of the such amounts.

 

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8.3 Restriction Against Assignment . Except as otherwise provided herein or by law, no right or interest of any Participant or Beneficiary under the Plan shall be assignable or transferable, in whole or in part, either directly or by operation of law or otherwise, including without limitation by execution, levy, garnishment, attachment, pledge or in any manner; no attempted assignment or transfer thereof shall be effective, and no right or interest of any Participant or Beneficiary under the Plan shall be liable for, or subject to, any obligation or liability of such Participant. When a payment is due under this Plan to a Participant or Beneficiary who is unable to care for his or her affairs, payment may be made directly to his or her legal guardian or personal representative.

 

8.4 Withholding . The Company, the Partnership, and their respective Subsidiaries shall have the authority and the right to deduct, withhold or require a Participant or Beneficiary to remit to the Company, the Partnership, or one of their respective Subsidiaries an amount sufficient to satisfy federal, state, local and foreign taxes (including without limitation any income and employment tax obligations) required by law to be withheld with respect to amounts payable under this Plan. Without limiting the generality of the foregoing, (a) for each Plan Year in which a Participant makes a Deferral under Article III, the Company, the Partnership or such Subsidiary shall withhold from that portion of the Participant’s Compensation that is not being deferred, in a manner determined by the Company, the Participant’s share of FICA and other employment taxes on such amount, or (b) to the extent permitted by Section 409A, the Committee may accelerate the payment of Compensation deferred by the Participant in order to pay such taxes.

 

8.5 Clawback . Notwithstanding any provision in this Plan to the contrary, amounts paid or payable under this Plan shall, to the extent applicable, be subject to (a) the provisions of any clawback policy implemented by the Company, including, without limitation, any claw-back policy adopted to comply with the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder, and (b) any other clawback requirements under applicable law.

 

8.6 Expenses . The expenses of administering the Plan shall be borne by the Company.

 

8.7 Notices . Any notice required or permitted to be given hereunder to a Participant or Beneficiary will be properly given if delivered or mailed, postage prepaid, to the Participant or Beneficiary at his or her last post office address as shown in the Company’s records. Any notice to the Committee or the Company shall be properly given or filed upon receipt by the Committee or the Company at such address as may be specified from time to time by the Committee. Each individual entitled to a benefit under the Plan must file with the Company, in writing, his or her post office address and each change of post office address which occurs between the date of his or her Separation from Service and the date he or she ceases to be a Participant. Any communication, statement or notice addressed to such individual at his or her latest reported address will be binding upon such individual for all purposes of the Plan.

 

8.8 No Right to Continue Service . Nothing in the Plan, any Election Form or any other instrument evidencing amounts subject to the Plan shall interfere with or limit in any way the right of the Company, the Partnership or any of their respective Subsidiaries to terminate any Participant’s employment or services at any time, nor confer upon any Participant any right to continue in the employ or service of the Company, the Partnership or any of their respective Subsidiaries.

 

8.9 Amendment, Suspension or Termination . The Board may amend, suspend or terminate the Plan in whole or in part, at any time; provided, that no amendment, suspension or termination shall retroactively reduce any amounts allocated to a Participant’s Account.

 

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8.10 Additional Board Authority . The Board or the Committee may, in its sole discretion, with respect to this Plan and all matters arising hereunder, take any action permitted under Treas. Reg. 1.409A-3(j) or any successor provision thereto, as such provisions may be amended from time to time, including without limitation, terminating or liquidating the Plan, whether or not in connection with a Change in Control, and providing that all amounts then-contained in Participant Accounts under the Plan shall be distributed to Participants upon, or as soon as practicable after, such termination or liquidation.

 

8.11 Governing Law . This Plan shall be construed, governed and administered in accordance with applicable provisions of the Code, ERISA and, to the extent not preempted by applicable federal law, the laws of the State of California, without regard to any conflict of laws principles thereof.

 

8.12 Release . Any payment to a Participant or Beneficiary in accordance with the provisions of the Plan shall, to the extent thereof, be in full satisfaction of all claims arising under, or with respect to, the Plan against the Committee and the Company. The Committee may require such Participant or Beneficiary, as a condition precedent to such payment, to execute a receipt and release in a form prescribed by the Committee.

 

8.13 Captions . The captions contained in this Plan are for convenience only and shall have no bearing on the meaning, construction or interpretation of the Plan’s provisions.

 

8.14 Validity . The invalidity or unenforceability of any provision of this Plan shall not affect the validity or enforceability of any other provision of this Plan, which shall remain in full force and effect.

 

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IN WITNESS WHEREOF , Digital Realty Trust, Inc. has caused the Plan to be executed on this 22nd day of October, 2013.

 

DIGITAL REALTY TRUST, INC.

By: 

 

/s/ Ellen Jacobs

Name: 

  Ellen Jacobs

Title:

  Senior Vice President, Human Resources and Corporate Services

 

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Exhibit 10.34

CLASS D PROFITS INTEREST UNIT AGREEMENT

This Class D Profits Interest Unit Agreement (this “ Agreement ”), dated as of                      (the “ Grant Date ”), is made by and between Digital Realty Trust, Inc., a Maryland corporation (the “ Company ”), Digital Realty Trust, L.P., a Maryland limited partnership (the “ Partnership ”), and                      (“ Grantee ”).

WHEREAS, the Company and the Partnership maintain the First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan (as amended from time to time, the “ Plan ”);

WHEREAS, the Company and the Partnership wish to carry out the Plan (the terms of which are hereby incorporated by reference and made a part of this Agreement);

WHEREAS, Section 8.7 of the Plan provides for the issuance of Profits Interest Units to Eligible Individuals for the performance of services to or for the benefit of the Partnership in the Eligible Individual’s capacity as a partner of the Partnership; and

WHEREAS, the Committee, appointed to administer the Plan, has determined that it would be to the advantage and in the best interest of the Company and its stockholders to issue the Class D Profits Interest Units provided for herein (the “ Award ”) to Grantee as an inducement to enter into or remain in the service of the Company, the Partnership or any Subsidiary, and as an additional incentive during such service, and has advised the Company thereof.

NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows:

1. Issuance of Award . Pursuant to the Plan, in consideration of Grantee’s agreement to provide services to or for the benefit of the Partnership, the Partnership hereby issues to Grantee an award of                      Class D Profits Interest Units (the “ Class D Units ”) and (b) if not already a Partner, admits Grantee as a Partner of the Partnership on the terms and conditions set forth herein, in the Plan and in the Amended and Restated Agreement of Limited Partnership of the Partnership (as amended from time to time, the “ Partnership Agreement ”). The Partnership and Grantee acknowledge and agree that the Class D Units are hereby issued to Grantee for the performance of services to or for the benefit of the Partnership in his or her capacity as a Partner or in anticipation of Grantee becoming a Partner. Upon receipt of the Award, Grantee shall, automatically and without further action on his or her part, be deemed to be a party to, signatory of and bound by the Partnership Agreement. At the request of the Partnership, Grantee shall execute the Partnership Agreement or a joinder or counterpart signature page thereto. Grantee acknowledges that the Partnership may from time to time issue or cancel (or otherwise modify) Profits Interest Units, including Class D Units, in accordance with the terms of the Partnership Agreement. The Award shall have the rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption and conversion set forth herein and in the Plan and the Partnership Agreement.

2. Definitions . For purposes of this Agreement, the following terms shall have the meanings set forth below. All capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Plan and/or the Partnership Agreement, as applicable.

(a) “ Base Units ” means the number of Class D Units designated as Base Units on Exhibit A attached hereto.

 

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(b) “ Cause ” means “Cause” as defined in Grantee’s employment agreement (or employment offer letter, as applicable) with the Company, the Partnership or any Subsidiary as in effect as of the Grant Date if such agreement exists and contains a definition of Cause, or, if no such employment agreement (or employment offer letter, as applicable) exists or such employment agreement (or employment offer letter, as applicable) does not contain a definition of Cause, then “Cause” means (i) Grantee’s willful and continued failure to substantially perform his or her duties with the Company or its subsidiaries or affiliates (other than any such failure resulting from Grantee’s incapacity due to physical or mental illness), after a written demand for substantial performance is delivered to Grantee, which demand specifically identifies the manner in which the Company believes that Grantee has not substantially performed his or her duties; (ii) Grantee’s willful commission of an act of fraud or dishonesty resulting in economic or financial injury to the Company or its subsidiaries or affiliates; (iii) Grantee’s conviction of, or entry by Grantee of a guilty or no contest plea to, the commission of a felony or a crime involving moral turpitude; (iv) a willful breach by Grantee of any fiduciary duty owed to the Company which results in economic or other injury to the Company or its subsidiaries or affiliates; (v) Grantee’s willful and gross misconduct in the performance of his or her duties that results in economic or other injury to the Company or its subsidiaries or affiliates; or (vi) a material breach by Grantee of any of his or her obligations under any agreement with the Company or its subsidiaries or affiliates after written notice is delivered to Grantee which specifically identifies such breach. For purposes of this provision, no act or failure to act on Grantee’s part will be considered “willful” unless it is done, or omitted to be done, by Grantee in bad faith or without reasonable belief that his or her action or omission was in the best interests of the Company.

(c) “ Company TSR Percentage ” means the compounded annual growth rate, expressed as a percentage (rounded to the nearest tenth of a percent (0.1%)), in the value per share of Stock during the Performance Period due to the appreciation in the price per share of Stock plus dividends declared during the Performance Period, assuming dividends are reinvested in Stock on the date that they were paid (at a price equal to the closing price of the Stock on the applicable dividend payment date). The Company TSR Percentage shall be calculated in accordance with the total shareholder return calculation methodology used in the MSCI REIT Index (and, for the avoidance of doubt, assuming the reinvestment of all dividends paid on Stock); provided, however, that for purposes of calculating total shareholder return for any Performance Period, the initial share price shall equal the closing price of a share of Stock on the principal securities exchange on which such shares are then traded on the first day of the Performance Period, and the final share price as of any given date shall be equal to the Share Value.

(d) “ Distribution Equivalent Units ” means a number of Class D Units equal to the quotient obtained by dividing (x) the excess of (A) the value of all dividends paid by the Company during the Performance Period in respect of that number of shares of Stock equal to the number of Class D Units that become Performance Vested Base Units (or, solely for purposes of Section 5(b)(ii) below, the number of Pro Rata Performance Vested Units) as of the completion of the Performance Period, over (B) the amount of any distributions made by the Partnership pursuant to Section 5.1 and Section 19.2.B(ii) of the Partnership Agreement to Grantee during the Performance Period in respect of the Class D Units, plus (or minus) the amount of gain (or loss) on such excess dividend amounts had they been reinvested in Stock on the date that they were paid (at a price equal to the closing price of the Stock on the applicable dividend payment date), by (y) the Share Value as of last day of the Performance Period.

(e) “ Good Reason ” means “Good Reason” as defined in Grantee’s employment agreement (or employment offer letter, as applicable) with the Company, the Partnership or any Subsidiary as in effect as of the Grant Date if such agreement exists and contains a definition of Good Reason, or, if no such employment agreement (or employment offer letter, as applicable) exists or such employment agreement (or employment offer letter, as applicable) does not contain a definition of Good Reason, then “Good Reason” means, without Grantee’s prior written consent, the relocation of the Company’s offices at which Grantee is principally employed (the “ Principal Location ”) to a location more than forty-five (45) miles from such location, or the Company’s requiring Grantee to be based at a location more than forty-five (45) miles from the Principal Location, except for

 

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required travel on Company business. Notwithstanding the foregoing, Grantee will not be deemed to have resigned for Good Reason unless (x) Grantee provides the Company with notice of the circumstances constituting Good Reason within sixty (60) days after the initial occurrence or existence of such circumstances, (y) the Company fails to correct the circumstance so identified within 30 days after the receipt of such notice (if capable of correction), and (z) the date of termination of Grantee’s employment occurs no later than one hundred eighty (180) days after the initial occurrence of the event constituting Good Reason.

(f) “ MSCI REIT Index ” means the total return version of the MSCI US REIT Index (currently known as the “RMS”), or, in the event such index is discontinued or its methodology is significantly changed, a comparable index selected by the Committee in good faith.

(g) “ MSCI Index Relative Performance ” means the Company TSR Percentage less the MSCI Index TSR Percentage, expressed in basis points.

(h) “ MSCI Index TSR Percentage ” means the compounded annual growth rate, expressed as a percentage (rounded to the nearest tenth of a percent (0.1%)), in the value of the MSCI REIT Index during the Performance Period, calculated in a manner consistent with Section 2(c) above from publicly available information.

(i) “ Performance Period ” means the period set forth on Exhibit A attached hereto.

(j) “ Performance Vesting Percentage ” means a function of the MSCI Index Relative Performance during the Performance Period, and shall be determined as set forth on Exhibit A attached hereto.

(k) “ Performance Vested Base Units ” means the product of (i) the total number of Base Units, and (ii) the applicable Performance Vesting Percentage.

(l) “ Performance Vested Units ” means (x) the Performance Vested Base Units, plus (y) the Distribution Equivalent Units.

(m) “ Qualifying Termination ” means a termination of Grantee’s status as a Service Provider by reason of (i) Grantee’s death, (ii) a termination by the Company, the Partnership or any Subsidiary due to Grantee’s disability, (iii) a termination by the Company, the Partnership or any Subsidiary other than for Cause, or (iv) a termination by Grantee for Good Reason.

(n) “ Restrictions ” means the exposure to forfeiture set forth in Sections 4(a) and 5 and the restrictions on sale or other transfer set forth in Section 3(b).

(o) “ Retirement ” means Grantee’s voluntary retirement from his or her service as an Employee or member of the Board at a time when Grantee has (i) attained at least fifty-five (55) years of age, and (ii) completed at least ten (10) Years of Service with the Company, the Partnership or a Subsidiary, provided that Grantee has provided the Company or the Partnership with at least twelve (12) months’ advance written notice of Grantee’s retirement. For avoidance of doubt, if Grantee’s status as a Service Provider terminates for any reason during such notice period, Grantee’s status as a Service Provider shall not be deemed to have terminated by reason of his or her Retirement for purposes of this Agreement.

(p) “ Service Provider ” means an Employee, Consultant or member of the Board. For purposes of this Agreement, a Grantee who is both an Employee and a member of the Board shall not cease to be a Service Provider unless and until his or her status as both an Employee and Board member has terminated. In addition, unless otherwise determined by the Committee, a Grantee shall not cease to be a Service Provider in the case of a termination of the Grantee’s employment or directorship where there is established a continuing consulting relationship between the Grantee and the Company, the Partnership or any Subsidiary.

 

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(q) “ Share Value ,” as of any given date, means the average of the closing trading prices of a share of Stock on the principal exchange on which such shares are then traded for each trading day during the thirty (30) consecutive calendar days ending on such date; provided, however, that if the last day of the Performance Period is the date on which a Change in Control occurs, Share Value shall mean the price per share of Stock paid by the acquiror in the Change in Control transaction or, to the extent that the consideration in the Change in Control transaction is paid in stock of the acquiror or its affiliates, then, unless otherwise determined by the Committee, Share Value shall mean the value of the consideration paid per Share based on the average of the high and low trading prices of a share of such acquiror stock on the principal exchange on which such shares are then traded on the date on which a Change in Control occurs.

(r) “ Unvested Unit ” means any Class D Unit (including any Performance Vested Base Unit) that has not become fully vested pursuant to Section 4 hereof and remains subject to the Restrictions. For the avoidance of doubt, as of the completion of the Performance Period, no Class D Unit that then constitutes a Distribution Equivalent Unit shall be an Unvested Unit.

(s) “ Years of Service ” means the aggregate period of time, expressed as a number of whole years and fractions thereof, during which Grantee was a member of the Board or served as an Employee in paid status.

3. Class D Units Subject to Partnership Agreement; Transfer Restrictions .

(a) The Award and the Class D Units are subject to the terms of the Plan and the terms of the Partnership Agreement, including, without limitation, the restrictions on transfer of Units (including Class D Units) set forth in Article 11 of the Partnership Agreement. Any permitted transferee of the Award or Class D Units shall take such Award or Class D Units subject to the terms of the Plan, this Agreement, and the Partnership Agreement. Any such permitted transferee must, upon the request of the Partnership, agree to be bound by the Plan, the Partnership Agreement, and this Agreement, and shall execute the same on request, and must agree to such other waivers, limitations, and restrictions as the Partnership or the Company may reasonably require. Any Transfer of the Award or Class D Units which is not made in compliance with the Plan, the Partnership Agreement and this Agreement shall be null and void and of no effect.

(b) Without the consent of the Partnership (which it may give or withhold in its sole discretion), Grantee shall not sell, pledge, assign, hypothecate, transfer, or otherwise dispose of (collectively, “ Transfer ”) any Unvested Units or any portion of the Award attributable to such Unvested Units (or any securities into which such Unvested Units are converted or exchanged), other than by will or pursuant to the laws of descent and distribution (the “ Transfer Restrictions ”); provided, however , that the Transfer Restrictions shall not apply to any Transfer of Unvested Units or of the Award to the Partnership or the Company.

4. Vesting .

(a) Performance Vesting . As soon as reasonably practicable following the completion of the Performance Period, the Committee shall determine the Company TSR Percentage, the MSCI Index TSR Percentage, the MSCI Index Relative Performance, the Performance Vesting Percentage, the number of Class D Units granted hereby that have become Performance Vested Base Units, the number of Distribution Equivalent Units and the number of Performance Vested Units, in each case as of the completion of the Performance Period. Any Class D Units granted hereby which have not become Performance Vested Units as of the completion of the Performance Period will automatically be cancelled and forfeited without payment of any consideration therefor, and Grantee shall have no further right or interest in or with respect to such Class D Units.

 

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(b) Time Vesting . Subject to Sections 4(c) and 5(b) below, following the completion of the Performance Period, the Restrictions set forth in Section 3(b) above and Section 5 below applicable to any outstanding Performance Vested Base Units (if any) shall lapse and such Performance Vested Base Units shall become fully vested in accordance with and subject to the time vesting schedule set forth on Exhibit A attached hereto, subject to Grantee’s continued status as a Service Provider through each applicable vesting date. As of the date of the completion of the Performance Period, that number of Class D Units, if any, that constitute Distribution Equivalent Units as of the completion of the Performance Period shall thereupon vest in full.

(c) Change in Control . Notwithstanding the foregoing, upon the consummation of a Change in Control, the Restrictions set forth in Section 3(b) above and Section 5(a) below applicable to any outstanding Performance Vested Units (if any) (after taking into account any Class D Units that become Performance Vested Units in connection with such Change in Control) shall lapse and such Performance Vested Units shall vest in full as of the date of such Change in Control, subject to Grantee’s continued status as a Service Provider until at least immediately prior to such Change in Control.

5. Effect of Termination of Service .

(a) Termination of Service . Subject to Section 5(b)(i) and (ii) below, in the event of the termination of Grantee’s status as a Service Provider for any reason, any and all Unvested Units as of the date on which Grantee’s status as a Service Provider terminates (after taking into account any accelerated vesting that occurs in connection with such termination) will automatically be cancelled and forfeited without payment of any consideration therefor, and Grantee shall have no further right or interest in or with respect to such Unvested Units. Except as set forth in Section 5(b)(i) and (ii) below, no Unvested Units and no portion of the Award attributable to Unvested Units as of the date on which Grantee’s status as a Service Provider terminates shall thereafter become vested.

(b) Qualifying Termination; Retirement .

(i) In the event that Grantee incurs a Qualifying Termination due to Grantee’s death or disability prior to the completion of the Performance Period, the Class D Units granted hereby shall remain outstanding and eligible to become Performance Vested Units in accordance with Section 4(a) above. In such event, following the completion of the Performance Period, the Restrictions set forth in Sections 3(b) and 5(a) above shall lapse with respect to the number of Class D Units that become Performance Vested Units in accordance with Section 4(a) above (if any) as of the completion of the Performance Period, and such Class D Units shall thereupon become fully vested. Any Class D Units that do not become fully vested in accordance with the preceding sentence will automatically be cancelled and forfeited as of the completion of the Performance Period without payment of any consideration therefor, and Grantee shall have no further right or interest in or with respect to such Class D Units.

(ii) In the event that Grantee incurs a Qualifying Termination due to a termination by the Company, the Partnership or any Subsidiary other than for Cause or by Grantee for Good Reason or in the event that Grantee ceases to be a Service Provider by reason of Grantee’s Retirement, in any case, prior to the completion of the Performance Period, the Class D Units granted hereby shall remain outstanding and eligible to become Performance Vested Units in accordance with Section 4(a) above. In such event, following the completion of the Performance Period, the Restrictions set forth in Sections 3(b) and 5(a) above shall lapse with respect to a number of Class D Units equal to the sum of (A) the product of (x) the number of Class D Units that become Performance Vested Base Units in accordance with Section 4(a) above (if any) as of the completion of the Performance Period, and (y) a fraction, the numerator of which is the number of days elapsed from the first day of the Performance Period through and including the date of Grantee’s Qualifying Termination or Retirement, as applicable, and the

 

5


denominator of which is the number of days in the completed Performance Period (such number of Class D Units, the “ Pro Rata Performance Vested Units ”), plus (B) the Distribution Equivalent Units (calculated with respect to the Pro Rata Performance Vested Units), and such Class D Units shall thereupon become fully vested. Any Class D Units (including any Performance Vested Units) that do not become fully vested in accordance with the preceding sentence will automatically be cancelled and forfeited as of the completion of the Performance Period without payment of any consideration therefor, and Grantee shall have no further right or interest in or with respect to such Class D Units.

(iii) In the event that, following the completion of the Performance Period, Grantee incurs a Qualifying Termination or ceases to be a Service Provider by reason of his or her Retirement, the Restrictions set forth in Sections 3(b) and 5(a) above applicable to any outstanding Performance Vested Base Units (if any) shall lapse and such Performance Vested Units shall become fully vested upon such Qualifying Termination or Retirement, as applicable.

6. Execution and Return of Documents and Certificates . At the Company’s or the Partnership’s request, Grantee hereby agrees to promptly execute, deliver and return to the Partnership any and all documents or certificates that the Company or the Partnership deems necessary or desirable to effectuate the cancellation and forfeiture of the Unvested Units and the portion of the Award attributable to the Unvested Units, or to effectuate the transfer or surrender of such Unvested Units and portion of the Award to the Partnership.

7. Determinations by Committee . Notwithstanding anything contained herein, all determinations, interpretations and assumptions relating to the vesting of the Award (including, without limitation, determinations, interpretations and assumptions with respect to Company TSR Percentage and MSCI Index TSR Percentage) shall be made by the Committee and shall be applied consistently and uniformly to all similar Awards granted under the Plan (including, without limitation, similar awards which provide for payment in the form of cash or shares of Stock or Restricted Stock). In making such determinations, the Committee may employ attorneys, consultants, accountants, appraisers, brokers, or other persons, and the Committee, the Board, the Company, the Partnership and their officers and directors shall be entitled to rely upon the advice, opinions or valuations of any such persons. All actions taken and all interpretations and determinations made by the Committee or the Board in good faith and absent manifest error shall be final and binding upon the Grantee, the Company and all other interested persons. In addition, the Committee, in its discretion, may adjust or modify the methodology for calculations relating to the vesting of the Award (including, without limitation, the methodology for calculating Company TSR Percentage and MSCI Index TSR Percentage), other than the Performance Vesting Percentage, as necessary or desirable to account for events affecting the value of the Stock which, in the discretion of the Committee, are not considered indicative of Company performance, which may include events such as the issuance of new Stock, stock repurchases, stock splits, issuances and/or exercises of stock grants or stock options, and similar events, all in order to properly reflect the Company’s intent with respect to the performance objectives underlying the Award or to prevent dilution or enlargement of the benefits or potential benefits intended to be made available with respect to the Award.

8. Covenants, Representations and Warranties . Grantee hereby represents, warrants, covenants, acknowledges and agrees on behalf of Grantee and his or her spouse, if applicable, that:

(a) Investment . Grantee is holding the Award and the Class D Units for Grantee’s own account, and not for the account of any other Person. Grantee is holding the Award and the Class D Units for investment and not with a view to distribution or resale thereof except in compliance with applicable laws regulating securities.

(b) Relation to Partnership . Grantee is presently an employee of, or consultant to, the Partnership or a Subsidiary, or is otherwise providing services to or for the benefit of the Partnership, and in such capacity has become personally familiar with the business of the Partnership.

 

6


(c) Access to Information . Grantee has had the opportunity to ask questions of, and to receive answers from, the Partnership with respect to the terms and conditions of the transactions contemplated hereby and with respect to the business, affairs, financial conditions, and results of operations of the Partnership.

(d) Registration . Grantee understands that the Class D Units have not been registered under the Securities Act of 1933, as amended (the “ Securities Act ”), and the Class D Units cannot be transferred by Grantee unless such transfer is registered under the Securities Act or an exemption from such registration is available. The Partnership has made no agreements, covenants or undertakings whatsoever to register the transfer of the Class D Units under the Securities Act. The Partnership has made no representations, warranties, or covenants whatsoever as to whether any exemption from the Securities Act, including, without limitation, any exemption for limited sales in routine brokers’ transactions pursuant to Rule 144 of the Securities Act, will be available. If an exemption under Rule 144 is available at all, it will not be available until at least six (6) months from issuance of the Award and then not unless the terms and conditions of Rule 144 have been satisfied.

(e) Public Trading . None of the Partnership’s securities is presently publicly traded, and the Partnership has made no representations, covenants or agreements as to whether there will be a public market for any of its securities.

(f) Tax Advice . The Partnership has made no warranties or representations to Grantee with respect to the income tax consequences of the transactions contemplated by this Agreement (including, without limitation, with respect to the decision of whether to make an election under Section 83(b) of the Code), and Grantee is in no manner relying on the Partnership or its representatives for an assessment of such tax consequences. Grantee is advised to consult with his or her own tax advisor with respect to such tax consequences and his or her ownership of the Class D Units.

9. Capital Account . Grantee shall make no contribution of capital to the Partnership in connection with the Award and, as a result, Grantee’s Capital Account balance in the Partnership immediately after its receipt of the Class D Units shall be equal to zero, unless Grantee was a Partner in the Partnership prior to such issuance, in which case Grantee’s Capital Account balance shall not be increased as a result of its receipt of the Class D Units.

10. Redemption Rights . Notwithstanding the contrary terms in the Partnership Agreement, Partnership Units which are acquired upon the conversion of the Class D Units shall not, without the consent of the Partnership (which may be given or withheld in its sole discretion), be redeemed pursuant to Section 8.6 of the Partnership Agreement within two (2) years of the date of the issuance of such Class D Units.

11. Section 83(b) Election . Grantee covenants that Grantee’s shall make a timely election under Section 83(b) of the Code (and any comparable election in the state of Grantee’s residence) with respect to the Class D Units covered by the Award, and the Partnership hereby consents to the making of such election(s). In connection with such election, Grantee and Grantee’s spouse, if applicable, shall promptly provide a copy of such election to the Partnership. Instructions for completing an election under Section 83(b) of the Code and a form of election under Section 83(b) of the Code are attached hereto as Exhibit B . Grantee represents that Grantee has consulted any tax consultant(s) that Grantee deems advisable in connection with the filing of an election under Section 83(b) of the Code and similar state tax provisions. Grantee acknowledges that it is Grantee’s sole responsibility and not the Company’s to timely file an election under Section 83(b) of the Code (and any comparable state election), even if Grantee requests that the Company or any representative of the Company make such filing on Grantee’s behalf. Grantee should consult his or her tax advisor to determine if there is a comparable election to file in the state of his or her residence.

12. Ownership Information . Grantee hereby covenants that so long as Grantee holds any Class D Units, at the request of the Partnership, Grantee shall disclose to the Partnership in writing such information relating to Grantee’s ownership of the Class D Units as the Partnership reasonably believes to be necessary or desirable to ascertain in order to comply with the Code or the requirements of any other appropriate taxing authority.

 

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13. Taxes . The Partnership and Grantee intend that (i) the Class D Units be treated as a “profits interest” as defined in Internal Revenue Service Revenue Procedure 93-27, as clarified by Revenue Procedure 2001-43, (ii) the issuance of such units not be a taxable event to the Partnership or Grantee as provided in such revenue procedure, and (iii) the Partnership Agreement, the Plan and this Agreement be interpreted consistently with such intent. In furtherance of such intent, effective immediately prior to the issuance of the Class D Units, the Partnership will cause the “Gross Asset Value” (as defined in the Partnership Agreement) of all Partnership assets to be adjusted to equal their respective gross fair market values, and make the resulting adjustments to the “Capital Accounts” (as defined in the Partnership Agreement) of the partners, in each case as set forth in the Partnership Agreement and based upon a “Fair Market Value” (as defined in the Partnership Agreement) equal to the trading price on the New York Stock Exchange of the common stock of the Company at the time of such adjustment. The Company or the Partnership may withhold from Grantee’s wages, or require Grantee to pay to the Partnership, any applicable withholding or employment taxes resulting from the issuance of the Award hereunder, from the vesting or lapse of any restrictions imposed on the Award, or from the ownership or disposition of the Class D Units.

14. Remedies . Grantee shall be liable to the Partnership for all costs and damages, including incidental and consequential damages, resulting from a disposition of the Award or the Class D Units which is in violation of the provisions of this Agreement. Without limiting the generality of the foregoing, Grantee agrees that the Partnership shall be entitled to obtain specific performance of the obligations of Grantee under this Agreement and immediate injunctive relief in the event any action or proceeding is brought in equity to enforce the same. Grantee will not urge as a defense that there is an adequate remedy at law.

15. Restrictive Legends . Certificates evidencing the Award, to the extent such certificates are issued, may bear such restrictive legends as the Partnership and/or the Partnership’s counsel may deem necessary or advisable under applicable law or pursuant to this Agreement, including, without limitation, the following legends or any legends similar thereto:

“The offering and sale of the securities represented hereby have not been registered under the Securities Act of 1933, as amended (the “Securities Act”). Any transfer of such securities will be invalid unless a Registration Statement under the Securities Act is in effect as to such transfer or in the opinion of counsel for the Partnership such registration is unnecessary in order for such transfer to comply with the Securities Act.”

“The securities represented hereby are subject to forfeiture, transferability and other restrictions as set forth in (i) a written agreement with the Partnership, (ii) the First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan and (iii) the Amended and Restated Agreement of Limited Partnership of Digital Realty Trust, L.P., in each case, as has been and as may in the future be amended (or amended and restated) from time to time, and such securities may not be sold or otherwise transferred except pursuant to the provisions of such documents.”

16. Restrictions on Public Sale by Grantee . To the extent not inconsistent with applicable law, Grantee agrees not to effect any sale or distribution of the Class D Units or any similar security of the Company or the Partnership, or any securities convertible into or exchangeable or exercisable for such securities, including a sale pursuant to Rule 144 under the Securities Act, during the 14 days prior to, and during the up to 90-day period beginning on, the date of the pricing of any public or private debt or equity securities offering by the Company or the Partnership (except as part of such offering), if and to the extent requested in writing by the Partnership or the

 

8


Company in the case of a non-underwritten public or private offering or if and to the extent requested in writing by the managing underwriter or underwriters (or initial purchaser or initial purchasers, as the case may be) and consented to by the Partnership or the Company, which consent may be given or withheld in the Partnership’s or the Company’s sole and absolute discretion, in the case of an underwritten public or private offering (such agreement to be in the form of lock-up agreement provided by the Company, the Partnership, managing underwriter or underwriters, as the case may be).

17. Conformity to Securities Laws . Grantee acknowledges that the Plan and this Agreement are intended to conform to the extent necessary with all provisions of all applicable federal and state laws, rules and regulations (including, but not limited to the Securities Act and the Exchange Act and any and all regulations and rules promulgated by the Securities and Exchange Commission thereunder, including without limitation the applicable exemptive conditions of Rule 16b-3 of the Exchange Act) and to such approvals by any listing, regulatory or other governmental authority as may, in the opinion of counsel for the Partnership or the Company, be necessary or advisable in connection therewith. Notwithstanding anything herein to the contrary, the Plan shall be administered, and the Award of Class D Units is made, only in such a manner as to conform to such laws, rules and regulations. To the extent permitted by applicable law, the Plan, this Agreement and the Award shall be deemed amended to the extent necessary to conform to such laws, rules and regulations.

18. Code Section 409A . To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the effective date of this Agreement. Notwithstanding any provision of this Agreement to the contrary, in the event that following the effective date of this Agreement, the Company or the Partnership determines that the Award may be subject to Section 409A of the Code and related Department of Treasury guidance (including such Department of Treasury guidance as may be issued after the effective date of this Agreement ), the Company or the Partnership may adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect ), or take any other actions, that the Company or the Partnership determines are necessary or appropriate to (a) exempt the Award from Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the Award, or (b) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance; provided, however , that this Section 18 shall not create any obligation on the part of the Company, the Partnership or any Subsidiary to adopt any such amendment, policy or procedure or take any such other action.

19. No Right to Continued Service . Nothing in this Agreement shall confer upon Grantee any right to continue as a Service Provider of the Company, the Partnership or any Subsidiary, or shall interfere with or restrict in any way the rights of the Company, the Partnership or any Subsidiary, which rights are hereby expressly reserved, to discharge Grantee at any time for any reason whatsoever, with or without cause.

20. Miscellaneous .

(a) Incorporation of the Plan . This Agreement is made under and subject to and governed by all of the terms and conditions of the Plan. In the event of any discrepancy or inconsistency between this Agreement and the Plan, the terms and conditions of the Plan shall control. By signing this Agreement, Grantee confirms that he or she has received a copy of the Plan and has had an opportunity to review the contents thereof.

(b) Clawback . This Award shall be subject to any clawback or recoupment policy currently in effect or as may be adopted by the Company or the Partnership, in each case, as may be amended from time to time.

(c) Successors and Assigns . Subject to the limitations set forth in this Agreement, this Agreement shall be binding upon, and inure to the benefit of, the executors, administrators, heirs, legal representatives, successors and assigns of the parties hereto, including, without limitation, any business entity that succeeds to the business of the Company or the Partnership.

 

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(d) Entire Agreement; Amendments and Waivers. This Agreement, together with the Plan and the Partnership Agreement, constitutes the entire agreement among the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties. Without limiting the generality of the foregoing, this Agreement supersedes the provisions of any employment agreement, employment offer letter or similar agreement between Grantee and the Company, the Partnership or any Subsidiary that would otherwise accelerate the vesting of the Award and the Class D Units, and any provision in such agreement or letter which would otherwise accelerate such vesting shall have no force or effect with respect to the Award or the Class D Units. In the event that the provisions of such other agreement or letter conflict or are inconsistent with the provisions of this Agreement, the provisions of this Agreement shall control. Except as set forth in Section 18 above, this Agreement may not be amended except in an instrument in writing signed on behalf of each of the parties hereto and approved by the Committee. No amendment, supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.

(e) Survival of Representations and Warranties . The representations, warranties and covenants contained in Section 8 hereof shall survive the later of the date of execution and delivery of this Agreement or the issuance of the Award.

(f) Severability . If for any reason one or more of the provisions contained in this Agreement or in any other instrument referred to herein, shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any other such instrument.

(g) Titles . The titles, captions or headings of the Sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

(h) Counterparts . This Agreement may be executed in any number of counterparts, any of which may be executed and transmitted by facsimile, and each of which shall be deemed to be an original, but all of which together shall be deemed to be one and the same instrument.

(i) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed within the State of California by California residents, without regard to any otherwise governing principles of conflicts of law that would choose the law of any state other than the State of California.

(j) Notices . Any notice to be given by Grantee under the terms of this Agreement shall be addressed to the General Counsel of the Company at the Company’s address set forth in Exhibit A attached hereto. Any notice to be given to Grantee shall be addressed to him or her at Grantee’s then current address on the books and records of the Company. By a notice given pursuant to this Section 20(j), either party may hereafter designate a different address for notices to be given to him. Any notice which is required to be given to Grantee shall, if Grantee is then deceased, be given to Grantee’s personal representative if such representative has previously informed the Company of his or her status and address by written notice under this Section 20(j) (and the Company shall be entitled to rely on any such notice provided to it that it in good faith believes to be true and correct, with no duty of inquiry). Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery or upon deposit in the United States mail by certified mail, with postage and fees prepaid, addressed as set forth above or upon confirmation of delivery by a nationally recognized overnight delivery service.

 

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(k) Spousal Consent . As a condition to the Partnership’s, the Company’s and their Subsidiaries’ obligations under this Agreement, the spouse of Grantee, if any, shall execute and deliver to the Partnership the Consent of Spouse attached hereto as Exhibit C.

(l) Fractional Units . For purposes of this Agreement, any fractional Class D Units that vest or become entitled to distributions pursuant to the Partnership Agreement will be rounded to the nearest whole Class D Unit, as determined by the Company or the Partnership; provided, however , that in no event shall such rounding cause the aggregate number of Class D Units that vest or become entitled to such distributions to exceed the total number of Class D Units set forth in Section 1 of this Agreement.

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.

 

DIGITAL REALTY TRUST, INC.,
a Maryland corporation
By:  

 

Name:   Michael F. Foust
Title:   Chief Executive Officer
DIGITAL REALTY TRUST, L.P.,
a Maryland limited partnership
By:   Digital Realty Trust, Inc., a Maryland corporation
Its:   General Partner
By:  

 

Name:   Michael F. Foust
Title:   Chief Executive Officer

Grantee hereby accepts and agrees to be bound by all

of the terms and conditions of this Agreement.

 

 

 

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Exhibit A

Definitions, Vesting Schedule and Notice Address

Base Units

Base Units “ means ______ Class D Units.

Performance Period

Performance Period ” means the period commencing on January 2, 2014 and ending on the earlier of (i) December 31, 2016 or (ii) the date on which a Change in Control occurs.

Performance Vesting Percentage

Performance Vesting Percentage ” means a function of the MSCI Index Relative Performance during the Performance Period, and shall be determined as set forth below:

 

    

MSCI Index

Relative
Performance

   Performance
Vesting
Percentage
 
   < 0 basis points      0

“Threshold Level”

   0 basis points      25

“Target Level”

   325 basis points      50

“High Level”

   ³ 650 basis points      100

In the event that the MSCI Index Relative Performance falls between the Threshold Level and the Target Level, the Performance Vesting Percentage shall be determined using straight line linear interpolation between the Threshold Level and Target Level Performance Vesting Percentages specified above; and in the event that the MSCI Index Relative Performance falls between the Target Level and the High Level, the Performance Vesting Percentage shall be determined using straight line linear interpolation between the Target Level and High Level Performance Vesting Percentages specified above.

Time Vesting Schedule

Company Address

4 Embarcadero Center

Suite 3200

San Francisco, California 94111

 

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Exhibit B

FORM OF SECTION 83(b) ELECTION AND INSTRUCTIONS

These instructions are provided to assist you if you choose to make an election under Section 83(b) of the Internal Revenue Code, as amended, with respect to the Class D Profits Interest Units of Digital Realty Trust, L.P. transferred to you. Please consult with your personal tax advisor as to whether an election of this nature will be in your best interests in light of your personal tax situation.

The executed original of the Section 83(b) election must be filed with the Internal Revenue Service not later than 30 days after the grant date. PLEASE NOTE: There is no remedy for failure to file on time. Follow the steps outlined below to ensure that the election is mailed and filed correctly and in a timely manner. ALSO, PLEASE NOTE: If you make the Section 83(b) election, the election is irrevocable.

Complete all of the Section 83(b) election steps below:

 

  1. Complete the Section 83(b) election form (sample form next page) and make four (4) copies of the signed election form. (Your spouse, if any, should also sign the Section 83(b) election form.)

 

  2. Prepare a cover letter to the Internal Revenue Service (sample letter included, following election form).

 

  3. Send the cover letter with the originally executed Section 83(b) election form and one (1) copy via certified mail, return receipt requested to the Internal Revenue Service at the address of the Internal Revenue Service where you file your personal tax returns.

 

    It is advisable that you have the package date-stamped at the post office. The post office will provide you with a white certified receipt that includes a dated postmark. Enclose a self-addressed, stamped envelope so that the Internal Revenue Service may return a date-stamped copy to you. However, your postmarked receipt is your proof of having timely filed the Section 83(b) election if you do not receive confirmation from the Internal Revenue Service.

 

  4. One (1) copy must be sent to Digital Realty Trust, L.P.’s legal department for its records and one (1) copy must be attached to your federal income tax return for the applicable calendar year.

 

  5. Retain the Internal Revenue Service file stamped copy (when returned) for your records.

Please consult your personal tax advisor for the address of the office of the Internal Revenue Service to which you should mail your election form.

 

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ELECTION PURSUANT TO SECTION 83(b) OF THE INTERNAL REVENUE CODE TO INCLUDE IN GROSS INCOME THE EXCESS OVER THE PURCHASE PRICE, IF ANY, OF THE VALUE OF PROPERTY TRANSFERRED IN CONNECTION WITH SERVICES

The undersigned hereby elects pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in the undersigned’s gross income for the taxable year in which the property was transferred the excess (if any) of the fair market value of the property described below, over the amount the undersigned paid for such property, if any, and supplies herewith the following information in accordance with the Treasury regulations promulgated under Section 83(b):

1. The name, address and taxpayer identification (social security) number of the undersigned, and the taxable year for which this election is being made, are:

 

  

 

           

 

NAME:    [Name of Taxpayer]       NAME       [Name of Spouse or N/A]
SSN:   

 

      SSN:      

 

   [ Taxpayer SSN ]             [Spouse SSN ]
ADDRESS:   

 

      ADDRESS:      

 

  

 

           

 

TAXABLE YEAR: The taxable year with respect to which this election is made is the calendar year in which the property was transferred.

2. The property with respect to which the election is made consists of                     Class D Profits Interest Units (the “ Units ”) of Digital Realty Trust, L.P. (the “ Company ”), representing an interest in the future profits, losses and distributions of the Company.

3. The date on which the above property was transferred to the undersigned was                     .

4. The above property is subject to the following restrictions: The Units are subject to cancellation and forfeiture to the extent unvested upon a termination of service with the Company under certain circumstances or in the event that certain performance objectives are not satisfied. These restrictions lapse upon the satisfaction of certain conditions as set forth in an agreement between the taxpayer and the Company. In addition, the Units are subject to certain transfer restrictions pursuant to such agreement and the Amended and Restated Agreement of Limited Partnership of Digital Realty Trust, L.P., as amended (or amended and restated) from time to time, should the taxpayer wish to transfer the Units.

5. The fair market value of the above property at the time of transfer (determined without regard to any restrictions other than those which by their terms will never lapse) was $0.

6. The amount paid for the above property by the undersigned was $0.

7. The undersigned taxpayer will file this election with the Internal Revenue Service office with which taxpayer files his or her annual income tax return not later than 30 days after the date of transfer of the property. A copy of this election will be furnished to the person for whom the services were performed, and the original will be filed with the income tax return of the undersigned to which this election relates. The undersigned is the person performing the services in connection with which the property was transferred.

 

Date:                     

     

 

     

 

 

15


VIA CERTIFIED MAIL

RETURN RECEIPT REQUESTED

Internal Revenue Service

 

 

[Address where taxpayer files returns]

 

Re : Election under Section 83(b) of the Internal Revenue Code of 1986

 

Taxpayer:                                                                                          

 

Taxpayer’s Social Security Number:                                              

 

Taxpayer’s Spouse:                                                                         

 

Taxpayer’s Spouse’s Social Security Number:                             

 

Ladies and Gentlemen:

Enclosed please find an original and one copy of an Election under Section 83(b) of the Internal Revenue Code of 1986, as amended, being made by the taxpayer referenced above. Please acknowledge receipt of the enclosed materials by stamping the enclosed copy of the Election and returning it to me in the self-addressed stamped envelope provided herewith.

 

Very truly yours,   

 

  

 

  

Enclosures

cc: Digital Realty Trust, L.P.

 

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Exhibit C

CONSENT OF SPOUSE

I,                      , spouse of                      , have read and approve the foregoing Class D Profits Interest Unit Agreement (the “ Agreement ”) and all exhibits thereto, the Partnership Agreement and the Plan (each as defined in the Agreement). In consideration of the granting to my spouse of the profits interest units of Digital Realty Trust, LP. (the “ Partnership ”) as set forth in the Agreement, I hereby appoint my spouse as my attorney-in-fact in respect to the exercise of any rights and taking of all actions under the Agreement and all exhibits thereto and agree to be bound by the provisions of the Agreement and all exhibits thereto insofar as I may have any rights in said Agreement or any exhibits thereto or any shares issued pursuant thereto under the community property laws or similar laws relating to marital property in effect in the state of our residence as of the date of the signing of the foregoing Agreement and exhibits thereto or otherwise. I understand that this Consent of Spouse may not be altered, amended, modified or revoked other than by a writing signed by me, the Partnership and the Digital Realty Trust, Inc.

 

Grant Date:  

 

Doc Control:  

 

By:  

 

Print name:  

 

Dated:  

If applicable, you must print, complete and return this Consent of Spouse to

hrdirect@digitalrealty.com. Please only print and return this page.

 

17

Exhibit 10.35

PERFORMANCE-BASED RESTRICTED STOCK UNIT AGREEMENT (US)

This Restricted Stock Unit Agreement (this “ Agreement ”), dated as of                      (the “ Grant Date ”), is made by and between Digital Realty Trust, Inc., a Maryland corporation (the “ Company ”) and                      (“ Grantee ”).

WHEREAS , the Company maintains the First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan (as amended from time to time, the “ Plan ”);

WHEREAS , the Company wishes to carry out the Plan (the terms of which are hereby incorporated by reference and made a part of this Agreement);

WHEREAS , Section 8.6 of the Plan provides for the issuance of Restricted Stock Units (“ RSUs ”);

WHEREAS , the Committee, appointed to administer the Plan, has determined that it would be to the advantage and in the best interest of the Company and its stockholders to issue RSUs to Grantee as an inducement to enter into or remain in the service of the Company, Digital Realty Trust, L.P. (the “ Partnership ”) or any Subsidiary, and as an additional incentive during such service, and has advised the Company thereof.

NOW, THEREFORE , in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows:

1. Issuance of Award of RSUs . Pursuant to the Plan, in consideration of Grantee’s agreement to provide services to the Company, the Partnership or any Subsidiary (as applicable), the Company hereby issues to the Grantee an award of                      RSUs. Each RSU that vests in full (and ceases to be subject to the Restrictions) shall represent the right to receive payment, in accordance with this Agreement, of one share of the Company’s common stock, par value $0.01 per share (the “ Common Stock ”). Unless and until an RSU vests, Grantee will have no right to payment in respect of any such RSU. Prior to actual payment in respect of any vested RSU, such RSU will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.

2. Dividend Equivalents . Each RSU granted hereunder that becomes a Performance Vested RSU is hereby granted in tandem with a corresponding Dividend Equivalent, which Dividend Equivalent shall remain outstanding from the Grant Date until the earlier of the payment or forfeiture of the RSU to which it corresponds. Pursuant to each outstanding Dividend Equivalent, Grantee shall be entitled to receive payments equal to dividends paid, if any, on the shares of Common Stock underlying the Performance Vested RSU to which such Dividend Equivalent relates, payable in the same form and amounts as dividends paid to each holder of a share of Common Stock. Each such payment shall be made no later than thirty (30) days following the applicable dividend payment date, provided that no such payments shall be made prior to the date on which the Performance Vested RSU becomes a Performance Vested RSU, and any Dividend Equivalent payments that would have been made prior to such date had the Performance Vested RSU been a Performance Vested RSU, plus (or minus) the amount of gain (or loss) on such amounts had they been reinvested in Common Stock on the date on which the corresponding dividend was paid (at a price equal to the closing price of the Common Stock on the applicable dividend payment date), shall be paid in a single lump sum no later than sixty (60) days following the date on which the Performance Vested RSU becomes a Performance Vested RSU (such payment date, the “ Accumulated Dividend Payment Date ”). Dividend Equivalents shall not entitle Grantee to any payments relating to dividends paid after the earlier to occur of the payment or forfeiture of the Performance Vested RSU underlying such Dividend Equivalent, and Grantee shall not be entitled to any Dividend Equivalent payment with respect to any RSU that does not become a Performance Vested RSU. In addition, notwithstanding the foregoing, in the event

 

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of a termination of Grantee’s status as a Services Provider for any reason following the Accumulated Dividend Payment Date, Grantee shall not be entitled to any Dividend Equivalent payments with respect to dividends declared prior to the date of such termination on shares of Common Stock underlying RSUs which are unvested as of the date of such termination (after taking into account any accelerated vesting that occurs in connection with such termination). Dividend Equivalents and any amounts that may become distributable in respect thereof shall be treated separately from the RSUs and the rights arising in connection therewith for purposes of the designation of time and form of payments required by Section 409A of the Code.

3. Definitions . For purposes of this Agreement, the following terms shall have the meanings set forth below. All capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Plan.

(a) “ Cause ” means “Cause” as defined in Grantee’s employment agreement (or employment offer letter, as applicable) with the Company, the Partnership or any Subsidiary as in effect as of the Grant Date if such agreement exists and contains a definition of Cause, or, if no such employment agreement (or employment offer letter, as applicable) exists or such employment agreement (or employment offer letter, as applicable) does not contain a definition of Cause, then “Cause” means (i) Grantee’s willful and continued failure to substantially perform his or her duties with the Company or its subsidiaries or affiliates (other than any such failure resulting from Grantee’s incapacity due to physical or mental illness), after a written demand for substantial performance is delivered to Grantee, which demand specifically identifies the manner in which the Company believes that Grantee has not substantially performed his or her duties; (ii) Grantee’s willful commission of an act of fraud or dishonesty resulting in economic or financial injury to the Company or its subsidiaries or affiliates; (iii) Grantee’s conviction of, or entry by Grantee of a guilty or no contest plea to, the commission of a felony or a crime involving moral turpitude; (iv) a willful breach by Grantee of any fiduciary duty owed to the Company which results in economic or other injury to the Company or its subsidiaries or affiliates; (v) Grantee’s willful and gross misconduct in the performance of his or her duties that results in economic or other injury to the Company or its subsidiaries or affiliates; or (vi) a material breach by Grantee of any of his or her obligations under any agreement with the Company or its subsidiaries or affiliates after written notice is delivered to Grantee which specifically identifies such breach. For purposes of this provision, no act or failure to act on Grantee’s part will be considered “willful” unless it is done, or omitted to be done, by Grantee in bad faith or without reasonable belief that his or her action or omission was in the best interests of the Company.

(b) “ Company TSR Percentage ” means the compounded annual growth rate, expressed as a percentage (rounded to the nearest tenth of a percent (0.1%)), in the value per share of Common Stock during the Performance Period due to the appreciation in the price per share of Common Stock plus dividends declared during the Performance Period, assuming dividends are reinvested in Common Stock on the date that they were paid (at a price equal to the closing price of the Common Stock on the applicable dividend payment date). The Company TSR Percentage shall be calculated in accordance with the total shareholder return calculation methodology used in the MSCI REIT Index (and, for the avoidance of doubt, assuming the reinvestment of all dividends paid on Stock); provided, however, that for purposes of calculating total shareholder return for any Performance Period, the initial share price shall equal the closing price of a share of Common Stock on the principal securities exchange on which such shares are then traded on the first day of the Performance Period, and the final share price as of any given date shall be equal to the Share Value.

(c) “ Disability ” means a disability that qualifies or, had Grantee been a participant, would qualify Grantee to receive long-term disability payments under the Company’s group long-term disability insurance plan or program, as it may be amended from time to time.

(d) “ Good Reason ” means “Good Reason” as defined in Grantee’s employment agreement (or employment offer letter, as applicable) with the Company, the Partnership or any Subsidiary as in effect as of the Grant Date if such agreement exists and contains a definition of Good Reason, or, if no such employment

 

2


agreement (or employment offer letter, as applicable) exists or such employment agreement (or employment offer letter, as applicable) does not contain a definition of Good Reason, then “Good Reason” means, without Grantee’s prior written consent, the relocation of the Company’s offices at which Grantee is principally employed (the “ Principal Location ”) to a location more than forty-five (45) miles from such location, or the Company’s requiring Grantee to be based at a location more than forty-five (45) miles from the Principal Location, except for required travel on Company business. Notwithstanding the foregoing, Grantee will not be deemed to have resigned for Good Reason unless (x) Grantee provides the Company with notice of the circumstances constituting Good Reason within sixty (60) days after the initial occurrence or existence of such circumstances, (y) the Company fails to correct the circumstance so identified within 30 days after the receipt of such notice (if capable of correction), and (z) the date of termination of Grantee’s employment occurs no later than one hundred eighty (180) days after the initial occurrence of the event constituting Good Reason.

(e) “ MSCI REIT Index ” means the total return version of the MSCI US REIT Index (currently known as the “RMS”), or, in the event such index is discontinued or its methodology is significantly changed, a comparable index selected by the Committee in good faith.

(f) “ MSCI Index Relative Performance ” means the Company TSR Percentage less the MSCI Index TSR Percentage, expressed in basis points.

(g) “ MSCI Index TSR Percentage ” means the compounded annual growth rate, expressed as a percentage (rounded to the nearest tenth of a percent (0.1%)), in the value of the MSCI REIT Index during the Performance Period, calculated in a manner consistent with Section 3(b) above from publicly available information.

(h) “ Performance Period ” means the period set forth on Exhibit A attached hereto.

(i) “ Performance Vesting Percentage ” means a function of the MSCI Index Relative Performance during the Performance Period, and shall be determined as set forth on Exhibit A attached hereto.

(j) “ Performance Vested RSUs ” means the product of (i) the total number of RSUs granted hereby, and (ii) the applicable Performance Vesting Percentage.

(k) “ Qualifying Termination ” means a termination of Grantee’s status as a Service Provider by reason of (i) Grantee’s death, (ii) a termination by the Company, the Partnership or any Subsidiary due to Grantee’s disability, (iii) a termination by the Company, the Partnership or any Subsidiary other than for Cause, or (iv) a termination by Grantee for Good Reason.

(l) “ Restrictions ” means the exposure to forfeiture set forth in Sections 5(a) and 6.

(m) “ Retirement ” means Grantee’s voluntary retirement from his or her service as an Employee or member of the Board at a time when Grantee has (i) attained at least fifty-five (55) years of age, and (ii) completed at least ten (10) Years of Service with the Company, the Partnership or a Subsidiary, provided that Grantee has provided the Company or the Partnership with at least twelve (12) months’ advance written notice of Grantee’s retirement. For avoidance of doubt, if Grantee’s status as a Service Provider terminates for any reason during such notice period, Grantee’s status as a Service Provider shall not be deemed to have terminated by reason of his or her Retirement for purposes of this Agreement.

(n) “ Service Provider ” means an Employee, Consultant or member of the Board. For purposes of this Agreement, a Grantee who is both an Employee and a member of the Board shall not cease to be a Service Provider unless and until his or her status as both an Employee and Board member has terminated. In addition, unless otherwise determined by the Committee, a Grantee shall not cease to be a Service Provider in the case of a termination of the Grantee’s employment or directorship where there is established a continuing consulting relationship between the Grantee and the Company, the Partnership or any Subsidiary.

 

3


(o) “ Share Value ,” as of any given date, means the average of the closing trading prices of a share of Common Stock on the principal exchange on which such shares are then traded for each trading day during the thirty (30) consecutive calendar days ending on such date; provided, however, that if the last day of the Performance Period is the date on which a Change in Control occurs, Share Value shall mean the price per share of Common Stock paid by the acquiror in the Change in Control transaction or, to the extent that the consideration in the Change in Control transaction is paid in stock of the acquiror or its affiliates, then, unless otherwise determined by the Committee, Share Value shall mean the value of the consideration paid per share based on the average of the high and low trading prices of a share of such acquiror stock on the principal exchange on which such shares are then traded on the date on which a Change in Control occurs.

(p) “ Unvested RSU ” means any RSU (including any Performance Vested RSU) that has not become fully vested pursuant to Section 5 hereof and remains subject to the Restrictions.

(q) “ Vesting Date ” means any date on which an RSU vests (with respect to both time-vesting and performance-vesting conditions) and ceases to be subject to the Restrictions.

(r) “ Years of Service ” means the aggregate period of time, expressed as a number of whole years and fractions thereof, during which Grantee was a member of the Board or served as an Employee in paid status.

4. RSUs and Dividend Equivalents Subject to the Plan; Ownership and Transfer Restrictions .

(a) The RSUs and Dividend Equivalents are subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference, including, without limitation, the restrictions on transfer set forth in Section 10.3 of the Plan and the REIT restrictions set forth in Section 15.15 of the Plan.

(b) Without limiting the foregoing, the RSUs and Common Stock issuable with respect thereto shall be subject to the restrictions on ownership and transfer set forth in the Articles of Amendment and Restatement of the Company, as amended and supplemented from time to time

5. Vesting .

(a) Performance Vesting . As soon as reasonably practicable following the completion of the Performance Period, the Committee shall determine the Company TSR Percentage, the MSCI Index TSR Percentage, the MSCI Index Relative Performance, the Performance Vesting Percentage and the number of RSUs granted hereby that have become Performance Vested RSUs as of the completion of the Performance Period. Any RSUs granted hereby which have not become Performance Vested Units as of the completion of the Performance Period will automatically be cancelled and forfeited without payment of any consideration therefor, and Grantee shall have no further right or interest in or with respect to such RSUs.

(b) Time Vesting . Subject to Sections 5(c) below, the Restrictions set forth in Section 6 below applicable to any outstanding Performance Vested RSUs (if any) will lapse and such Performance Vested RSUs shall become fully vested and nonforfeitable in accordance with and subject to the time vesting schedule set forth on Exhibit A attached hereto, subject to Grantee’s continued status as a Service Provider through each applicable vesting date.

(c) Change in Control . Notwithstanding the foregoing, in the event of the consummation of a Change in Control, the Restrictions set forth in Section 6 below applicable to any outstanding Performance

 

4


Vested RSUs (if any) (after taking into account any RSUs that become Performance Vested RSUs in connection with such Change in Control) shall lapse and such Performance Vested RSUs shall vest in full and become nonforfeitable immediately prior to such Change in Control, subject to Grantee’s continued status as a Service Provider until at least immediately prior to such Change in Control.

6. Effect of Termination of Service .

(a) Termination of Service . Subject to Section 6(b)(i) and (ii) below, in the event of the termination of Grantee’s status as a Service Provider for any reason, any and all Unvested RSUs as of the date on which Grantee’s status as a Service Provider terminates (after taking into account any accelerated vesting that occurs in connection with such termination) will automatically be cancelled and forfeited without payment of any consideration therefor, and Grantee shall have no further right or interest in or with respect to such Unvested RSUs. Except as set forth in Sections 6(b)(i) and (ii) below, no Unvested RSUs as of the date on which Grantee’s status as a Service Provider terminates shall thereafter become vested.

(b) Qualifying Termination; Retirement .

(i) In the event that Grantee incurs a Qualifying Termination due to Grantee’s death or disability prior to the completion of the Performance Period, the RSUs granted hereby shall remain outstanding and eligible to become Performance Vested RSUs in accordance with Section 5(a) above. In such event, following the completion of the Performance Period, the Restrictions set forth in Section 6(a) above shall lapse with respect to the number of RSUs that become Performance Vested RSUs in accordance with Section 5(a) above (if any) as of the completion of the Performance Period, and such RSUs shall thereupon become fully vested. Any RSUs that do not become fully vested in accordance with the preceding sentence will automatically be cancelled and forfeited as of the completion of the Performance Period without payment of any consideration therefor, and Grantee shall have no further right or interest in or with respect to such RSUs.

(ii) In the event that Grantee incurs a Qualifying Termination due to a termination by the Company, the Partnership or any Subsidiary other than for Cause or by Grantee for Good Reason or in the event that Grantee ceases to be a Service Provider by reason of Grantee’s Retirement, in any case, prior to the completion of the Performance Period, the RSUs granted hereby shall remain outstanding and eligible to become Performance Vested RSUs in accordance with Section 5(a) above. In such event, following the completion of the Performance Period, the Restrictions set forth in Section 6(a) above shall lapse with respect to a number of RSUs equal to the product of (x) the number of RSUs that become Performance Vested RSUs in accordance with Section 5(a) above (if any) as of the completion of the Performance Period, and (y) a fraction, the numerator of which is the number of days elapsed from the first day of the Performance Period through and including the date of Grantee’s Qualifying Termination or Retirement, as applicable, and the denominator of which is the number of days in the completed Performance Period, and such RSUs shall thereupon become fully vested. Any RSUs (including any Performance Vested RSUs) that do not become fully vested in accordance with the preceding sentence will automatically be cancelled and forfeited as of the completion of the Performance Period without payment of any consideration therefor, and Grantee shall have no further right or interest in or with respect to such RSUs.

(iii) In the event that, following the completion of the Performance Period, Grantee incurs a Qualifying Termination or ceases to be a Service Provider by reason of his or her Retirement, the Restrictions set forth in Section 6(a) above applicable to any outstanding Performance Vested RSUs (if any) shall lapse and such Performance Vested RSUs shall become fully vested upon such Qualifying Termination or Retirement, as applicable.

 

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7. Payment . Payments in respect of any RSUs that vest in full in accordance herewith shall be made to Grantee (or in the event of Grantee’s death, to his or her estate) in whole shares of Stock, and any fractional share will be rounded to the nearest whole share; provided, however , that in no event shall the aggregate number of RSUs that vest or become payable hereunder exceed the total number of RSUs set forth in Section 1 of this Agreement. The Company shall make such payments as soon as practicable after the applicable Vesting Date, but in any event within thirty (30) days after such Vesting Date, provided that, in the event of vesting upon a Change in Control under Section 5(c) above, such payment shall be made or deemed made immediately preceding and effective upon the occurrence of such Change in Control.

8. Determinations by Committee . Notwithstanding anything contained herein, all determinations, interpretations and assumptions relating to the vesting of the RSUs (including, without limitation, determinations, interpretations and assumptions with respect to Company TSR Percentage and MSCI Index TSR Percentage) shall be made by the Committee and shall be applied consistently and uniformly to all similar Awards granted under the Plan (including, without limitation, similar Awards of Profits Interest Units). In making such determinations, the Committee may employ attorneys, consultants, accountants, appraisers, brokers, or other persons, and the Committee, the Board, the Company, the Partnership and their officers and directors shall be entitled to rely upon the advice, opinions or valuations of any such persons. All actions taken and all interpretations and determinations made by the Committee or the Board in good faith and absent manifest error shall be final and binding upon the Grantee, the Company and all other interested persons. In addition, the Committee, in its discretion, may adjust or modify the methodology for calculations relating to the vesting of the RSUs (including, without limitation, the methodology for calculating Company TSR Percentage and MSCI Index TSR Percentage), other than the Performance Vesting Percentage, as necessary or desirable to account for events affecting the value of the Stock which, in the discretion of the Committee, are not considered indicative of Company performance, which may include events such as the issuance of new Stock, stock repurchases, stock splits, issuances and/or exercises of stock grants or stock options, and similar events, all in order to properly reflect the Company’s intent with respect to the performance objectives underlying the RSUs or to prevent dilution or enlargement of the benefits or potential benefits intended to be made available with respect to the RSUs.

9. Restrictions on New Shares . In the event that the RSUs are changed into or exchanged for a different number or kind of securities of the Company or of another corporation or other entity by reason of merger, consolidation, recapitalization, reclassification, stock split, stock dividend or combination of shares, such new or additional or different securities which are issued upon conversion of or in exchange or substitution for RSUs which are then subject to vesting shall be subject to the same vesting conditions, unless the Committee provides for the vesting or the RSUs underlying the distribution of the new or additional or different securities.

10. Conditions to Issuance of Stock Certificates . Shares of Common Stock issued as payment for the RSUs may be either previously authorized but unissued shares or issued shares which have then been reacquired by the Company. Upon issuance, such shares shall be fully paid and nonassessable. The shares of stock issued pursuant to this Agreement shall be held in book entry form and no certificates shall be issued therefor; provided however, that certificates may be issued for shares of stock issued pursuant to this Agreement at the request of the holder and in accordance with the Articles of Amendment and Restatement of the Company, as amended and supplemented from time to time, and the Amended and Restated Bylaws of the Company, as amended and supplemented from time to time, upon the fulfillment of all of the following conditions:

(a) The admission of such shares to listing on all stock exchanges on which such class of stock is then listed;

(b) The completion of any registration or other qualification of such shares under any state or federal law or under rulings or regulations of the Securities and Exchange Commission or of any other governmental regulatory body, which the Committee shall, in its absolute discretion, deem necessary or advisable;

 

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(c) The obtaining of any approval or other clearance from any state or federal governmental agency which the Committee shall, in its absolute discretion, determine to be necessary or advisable;

(d) The lapse of such reasonable period of time as the Committee may from time to time establish for reasons of administrative convenience; and

(e) The receipt by the Company of full payment for any applicable withholding or other employment tax or required payments with respect to any such shares to the Company with respect to the issuance or vesting of such shares.

In the event that the Company delays a distribution or payment in settlement of RSUs because it reasonably determines that the issuance of shares of Common Stock in settlement of RSUs will violate federal securities laws or other applicable law, such distribution or payment shall be made at the earliest date at which the Company reasonably determines that the making of such distribution or payment will not cause such violation, as required by Treasury Regulation Section 1.409A-2(b)(7)(ii). The Company shall not delay any payment if such delay will result in a violation of Section 409A of the Code.

11. Rights as Stockholder . Neither Grantee nor any person claiming under or through Grantee will have any of the rights or privileges of a stockholder of the Company in respect of any shares of Common Stock deliverable hereunder unless and until certificates representing such shares of Stock will have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to Grantee or any person claiming under or through Grantee.

12. Tax Withholding . The Company, the Services Company, the Partnership or any Subsidiary shall have the authority and the right to deduct or withhold, or require Grantee to remit to the Company, the Services Company, the Partnership or any Subsidiary, as applicable, an amount sufficient to satisfy federal, state, local and foreign taxes (including Grantee’s FICA obligation) required by law to be withheld with respect to the issuance, vesting or payment of the RSUs and the Dividend Equivalents. The Committee may in its discretion and in satisfaction of the foregoing requirement allow Grantee to elect to have the Company or the Employer, as applicable, withhold shares of Common Stock otherwise issuable under such award (or allow the return of shares of Common Stock) having a Fair Market Value equal to the sums required to be withheld. Notwithstanding any other provision of the Plan or this Agreement, the number of shares of Common Stock which may be withheld with respect to the issuance, vesting or payment of the RSUs in order to satisfy Grantee’s income and payroll tax liabilities with respect to the issuance, vesting or payment of the RSUs and the Dividend Equivalents shall be limited to the number of shares which have a fair market value on the date of withholding equal to the aggregate amount of such liabilities based on the minimum statutory withholding rates for tax income and payroll tax purposes that are applicable to such supplemental taxable income.

13. Remedies . Grantee shall be liable to the Company for all costs and damages, including incidental and consequential damages, resulting from a disposition of the RSUs which is in violation of the provisions of this Agreement. Without limiting the generality of the foregoing, Grantee agrees that the Company shall be entitled to obtain specific performance of the obligations of Grantee under this Agreement and immediate injunctive relief in the event any action or proceeding is brought in equity to enforce the same. Grantee will not urge as a defense that there is an adequate remedy at law.

14. Restrictions on Public Sale by Grantee . To the extent not inconsistent with applicable law, Grantee agrees not to effect any sale or distribution of the RSUs or any similar security of the Company, or any securities convertible into or exchangeable or exercisable for such securities, including a sale pursuant to Rule 144 under the Securities Act, during the fourteen (14) days prior to, and during the up to 90 day period beginning on, the date of the pricing of any public or private debt or equity securities offering by the Company (except as part of such offering), if and to the extent requested in writing by the Partnership or the Company in the case of a

 

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non-underwritten public or private offering or if and to the extent requested in writing by the managing underwriter or underwriters (or initial purchaser or initial purchasers, as the case may be) and consented to by the Company, which consent may be given or withheld in the Company’s sole and absolute discretion, in the case of an underwritten public or private offering (such agreement to be in the form of lock-up agreement provided by the Company or managing underwriter or underwriters, as the case may be).

15. Conformity to Securities Laws . Grantee acknowledges that the Plan and this Agreement are intended to conform to the extent necessary with all provisions of all applicable federal and state laws, rules and regulations (including, but not limited to the Securities Act and the Exchange Act and any and all regulations and rules promulgated by the Securities and Exchange Commission thereunder, including without limitation the applicable exemptive conditions of Rule 16b-3 of the Exchange Act) and to such approvals by any listing, regulatory or other governmental authority as may, in the opinion of counsel for the Company, be necessary or advisable in connection therewith. Notwithstanding anything herein to the contrary, the Plan shall be administered, and the RSUs are granted, only in such a manner as to conform to such laws, rules and regulations. To the extent permitted by applicable law, the Plan, this Agreement and the RSUs shall be deemed amended to the extent necessary to conform to such laws, rules and regulations.

16. Code Section 409A . To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the effective date of this Agreement. Notwithstanding any provision of this Agreement to the contrary, in the event that following the effective date of this Agreement, the Company determines that the RSUs may be subject to Section 409A of the Code and related Department of Treasury guidance (including such Department of Treasury guidance as may be issued after the effective date of this Agreement ), the Company may adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect ), or take any other actions, that the Company determines are necessary or appropriate to (a) exempt the RSUs from Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the RSUs, or (b) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance; provided, however, that this Section 16 shall not create any obligation on the part of the Company, the Partnership or any Subsidiary to adopt any such amendment, policy or procedure or take any such other action. For purposes of Section 409A of the Code, any right to a series of payments pursuant to this Agreement shall be treated as a right to a series of separate payments.

17. No Right to Continued Service . Nothing in this Agreement shall confer upon Grantee any right to continue as a Service Provider of the Company, the Partnership or any Subsidiary, or shall interfere with or restrict in any way the rights of the Company, the Partnership or any Subsidiary, which rights are hereby expressly reserved, to discharge Grantee at any time for any reason whatsoever, with or without cause.

18. Miscellaneous .

(a) Incorporation of the Plan . This Agreement is made under and subject to and governed by all of the terms and conditions of the Plan. In the event of any discrepancy or inconsistency between this Agreement and the Plan, the terms and conditions of the Plan shall control. By signing this Agreement, Grantee confirms that he or she has received a copy of the Plan and has had an opportunity to review the contents thereof.

(b) Clawback . This award, the RSUs and the shares of Common Stock issuable with respect to the RSUs shall be subject to any clawback or recoupment policy currently in effect or as may be adopted by the Company, as may be amended from time to time.

(c) Successors and Assigns . Subject to the limitations set forth in this Agreement, this Agreement shall be binding upon, and inure to the benefit of, the executors, administrators, heirs, legal representatives, successors and assigns of the parties hereto, including, without limitation, any business entity that succeeds to the business of the Company.

 

8


(d) Entire Agreement; Amendments and Waivers. This Agreement, together with the Plan, constitutes the entire agreement among the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties. Without limiting the generality of the foregoing, this Agreement supersedes the provisions of any employment agreement, employment offer letter or similar agreement between Grantee and the Company, the Partnership or any Subsidiary that would otherwise accelerate the vesting of the RSUs, and any provision in such agreement or letter which would otherwise accelerate such vesting shall have no force or effect with respect to the RSUs. In the event that the provisions of such other agreement or letter conflict or are inconsistent with the provisions of this Agreement, the provisions of this Agreement shall control. Except as set forth in Section 16 above, this Agreement may not be amended except in an instrument in writing signed on behalf of each of the parties hereto and approved by the Committee. No amendment, supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.

(e) Severability . If for any reason one or more of the provisions contained in this Agreement or in any other instrument referred to herein, shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any other such instrument.

(f) Titles . The titles, captions or headings of the Sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

(g) Counterparts . This Agreement may be executed in any number of counterparts, any of which may be executed and transmitted by facsimile, and each of which shall be deemed to be an original, but all of which together shall be deemed to be one and the same instrument.

(h) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed within the State of California by California residents, without regard to any otherwise governing principles of conflicts of law that would choose the law of any state other than the State of California.

(i) Notices . Any notice to be given by Grantee under the terms of this Agreement shall be addressed to the General Counsel of the Company at the Company’s address set forth in Exhibit A attached hereto. Any notice to be given to Grantee shall be addressed to him or her at Grantee’s then current address on the books and records of the Company. By a notice given pursuant to this Section 18(i), either party may hereafter designate a different address for notices to be given to him. Any notice which is required to be given to Grantee shall, if Grantee is then deceased, be given to Grantee’s personal representative if such representative has previously informed the Company of his or her status and address by written notice under this Section 18(i) (and the Company shall be entitled to rely on any such notice provided to it that it in good faith believes to be true and correct, with no duty of inquiry). Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery or upon deposit in the United States mail by certified mail, with postage and fees prepaid, addressed as set forth above or upon confirmation of delivery by a nationally recognized overnight delivery service.

(j) Spousal Consent. As a condition to the Company’s and its Subsidiaries’ obligations under this Agreement, the spouse of Grantee, if any, shall execute and deliver to the Company the Consent of Spouse attached hereto as Exhibit B .

 

9


IN WITNESS WHEREOF , the parties have executed this Agreement as of the day and year first above written.

 

DIGITAL REALTY TRUST, INC.,
a Maryland corporation
By:  

 

Name:   Michael F. Foust
Title:   Chief Executive Officer

Grantee hereby accepts and agrees to be bound by all

of the terms and conditions of this Agreement.

 

 

 

10


Exhibit A

Definitions, Vesting Schedule and Notice Address

Performance Period

Performance Period ” means the period commencing on January 2, 2014 and ending on the earlier of (i) December 31, 2016 or (ii) the date on which a Change in Control occurs.

Performance Vesting Percentage

Performance Vesting Percentage ” means a function of the MSCI Index Relative Performance during the Performance Period, and shall be determined as set forth below:

 

    

MSCI Index

Relative
Performance

   Performance
Vesting
Percentage
 
   < 0 basis points      0

“Threshold Level”

   0 basis points      25

“Target Level”

   325 basis points      50

“High Level”

   ³ 650 basis points      100

In the event that the MSCI Index Relative Performance falls between the Threshold Level and the Target Level, the Performance Vesting Percentage shall be determined using straight line linear interpolation between the Threshold Level and Target Level Performance Vesting Percentages specified above; and in the event that the MSCI Index Relative Performance falls between the Target Level and the High Level, the Performance Vesting Percentage shall be determined using straight line linear interpolation between the Target Level and High Level Performance Vesting Percentages specified above.

Time Vesting Schedule

Company Address

4 Embarcadero Center

Suite 3200

San Francisco, California 94111


Exhibit B

CONSENT OF SPOUSE

I,                      , spouse of [                      ], have read and approve the foregoing Restricted Stock Unit Agreement (the “ Agreement ”) and all exhibits thereto and the Plan (as defined in the Agreement). In consideration of the granting to my spouse of the restricted stock units of Digital Realty Trust, Inc. (the “ Company ”) as set forth in the Agreement, I hereby appoint my spouse as my attorney-in-fact in respect to the exercise of any rights and taking of all actions under the Agreement and all exhibits thereto and agree to be bound by the provisions of the Agreement and all exhibits thereto insofar as I may have any rights in said Agreement or any exhibits thereto or any shares issued pursuant thereto under the community property laws or similar laws relating to marital property in effect in the state of our residence as of the date of the signing of the foregoing Agreement and exhibits thereto or otherwise. I understand that this Consent of Spouse may not be altered, amended, modified or revoked other than by a writing signed by me and the Company.

 

Grant Date:  

 

By:  

 

Print name:  

 

Dated:  

If applicable, you must print, complete and return this Consent of Spouse to

hrdirect@digitalrealty.com. Please only print and return this page.

Exhibit 10.36

TIME-BASED RESTRICTED STOCK UNIT AGREEMENT (US)

This Restricted Stock Unit Agreement (this “ Agreement ”), dated as of                      (the “ Grant Date ”), is made by and between Digital Realty Trust, Inc., a Maryland corporation (the “ Company ”) and                      (“ Grantee ”).

WHEREAS , the Company maintains the First Amended and Restated Digital Realty Trust, Inc., Digital Services, Inc. and Digital Realty Trust, L.P. 2004 Incentive Award Plan (as amended from time to time, the “ Plan ”);

WHEREAS , the Company wishes to carry out the Plan (the terms of which are hereby incorporated by reference and made a part of this Agreement);

WHEREAS , Section 8.6 of the Plan provides for the issuance of Restricted Stock Units (“ RSUs ”);

WHEREAS , the Committee, appointed to administer the Plan, has determined that it would be to the advantage and in the best interest of the Company and its stockholders to issue RSUs to Grantee as an inducement to enter into or remain in the service of the Company, Digital Realty Trust, L.P. (the “ Partnership ”) or any Subsidiary, and as an additional incentive during such service, and has advised the Company thereof.

NOW, THEREFORE , in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows:

1. Issuance of Award of RSUs . Pursuant to the Plan, in consideration of Grantee’s agreement to provide services to the Company, the Partnership or any Subsidiary (as applicable), the Company hereby issues to the Grantee an award of                      RSUs. Each RSU that vests shall represent the right to receive payment, in accordance with this Agreement, of one share of the Company’s common stock, par value $0.01 per share (the “ Common Stock ”). Unless and until an RSU vests, Grantee will have no right to payment in respect of any such RSU. Prior to actual payment in respect of any vested RSU, such RSU will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.

2. Dividend Equivalents . Each RSU granted hereunder is hereby granted in tandem with a corresponding Dividend Equivalent, which Dividend Equivalent shall remain outstanding from the Grant Date until the earlier of the payment or forfeiture of the RSU to which it corresponds. Pursuant to each outstanding Dividend Equivalent, Grantee shall be entitled to receive payments equal to dividends paid, if any, on the shares of Common Stock underlying the RSU to which such Dividend Equivalent relates, payable in the same form and amounts as dividends paid to each holder of a share of Common Stock. Each such payment shall be made no later than thirty (30) days following the applicable dividend payment date. Dividend Equivalents shall not entitle Grantee to any payments relating to dividends paid after the earlier to occur of the payment or forfeiture of the RSU underlying such Dividend Equivalent. In addition, notwithstanding the foregoing, in the event of a termination of Grantee’s status as a Services Provider for any reason, Grantee shall not be entitled to any Dividend Equivalent payments with respect to dividends declared prior to the date of such termination on shares of Common Stock underlying RSUs which are unvested as of the date of such termination (after taking into account any accelerated vesting that occurs in connection with such termination). Dividend Equivalents and any amounts that may become distributable in respect thereof shall be treated separately from the RSUs and the rights arising in connection therewith for purposes of the designation of time and form of payments required by Section 409A of the Code.

 

1


3. Definitions . For purposes of this Agreement, the following terms shall have the meanings set forth below. All capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Plan.

(a) “ Disability ” means a disability that qualifies or, had Grantee been a participant, would qualify Grantee to receive long-term disability payments under the Company’s group long-term disability insurance plan or program, as it may be amended from time to time.

(b) “ Qualifying Termination ” means a termination of Grantee’s status as a Service Provider by reason of (i) Grantee’s death, or (ii) a termination by the Company, the Partnership or any Subsidiary due to Grantee’s disability.

(c) “ Service Provider ” means an Employee, Consultant or member of the Board. For purposes of this Agreement, a Grantee who is both an Employee and a member of the Board shall not cease to be a Service Provider unless and until his or her status as both an Employee and Board member has terminated. In addition, unless otherwise determined by the Committee, a Grantee shall not cease to be a Service Provider in the case of a termination of the Grantee’s employment or directorship where there is established a continuing consulting relationship between the Grantee and the Company, the Partnership or any Subsidiary.

4. RSUs and Dividend Equivalents Subject to the Plan; Ownership and Transfer Restrictions .

(a) The RSUs and Dividend Equivalents are subject to the terms, definitions and provisions of the Plan, which is incorporated herein by reference, including, without limitation, the restrictions on transfer set forth in Section 10.3 of the Plan and the REIT restrictions set forth in Section 15.15 of the Plan.

(b) Without limiting the foregoing, the RSUs and Common Stock issuable with respect thereto shall be subject to the restrictions on ownership and transfer set forth in the Articles of Amendment and Restatement of the Company, as amended and supplemented from time to time.

5. Vesting .

(a) Time Vesting . Subject to Sections 5(b) and (c) below, the RSUs will vest and become nonforfeitable in accordance with and subject to the time vesting schedule set forth on Exhibit A attached hereto, subject to Grantee’s continued status as a Service Provider through each applicable vesting date.

(b) Change in Control . Notwithstanding the foregoing, in the event of the consummation of a Change in Control, the RSUs will vest in full and become nonforfeitable immediately prior to such Change in Control, subject to Grantee’s continued status as a Service Provider until at least immediately prior to such Change in Control.

(c) Qualifying Termination . In the event that Grantee incurs a Qualifying Termination, the RSUs will vest in full and become nonforfeitable upon such Qualifying Termination.

6. Effect of Termination of Service . Subject to Section 5(c) above, in the event of the termination of Grantee’s status as a Service Provider for any reason, any and all RSUs that have not vested as of the date on which Grantee’s status as a Service Provider terminates (after taking into account any accelerated vesting that occurs in connection with such termination) will automatically be cancelled and forfeited without payment of any consideration therefor, and Grantee shall have no further right or interest in or with respect to such RSUs. No RSUs which have not vested as of the date on which Grantee’s status as a Service Provider terminates shall thereafter become vested.

 

2


7. Payment . Payments in respect of any RSUs that vest in accordance herewith shall be made to Grantee (or in the event of Grantee’s death, to his or her estate) in whole shares of Stock, and any fractional share will be rounded to the nearest whole share; provided, however , that in no event shall the aggregate number of RSUs that vest or become payable hereunder exceed the total number of RSUs set forth in Section 1 of this Agreement. The Company shall make such payments as soon as practicable after the applicable vesting date, but in any event within thirty (30) days after such vesting date, provided that, in the event of vesting upon a Change in Control under Section 5(b) above, such payment shall be made or deemed made immediately preceding and effective upon the occurrence of such Change in Control.

8. Restrictions on New Shares . In the event that the RSUs are changed into or exchanged for a different number or kind of securities of the Company or of another corporation or other entity by reason of merger, consolidation, recapitalization, reclassification, stock split, stock dividend or combination of shares, such new or additional or different securities which are issued upon conversion of or in exchange or substitution for RSUs which are then subject to vesting shall be subject to the same vesting conditions, unless the Committee provides for the vesting or the RSUs underlying the distribution of the new or additional or different securities.

9. Conditions to Issuance of Stock Certificates . Shares of Common Stock issued as payment for the RSUs may be either previously authorized but unissued shares or issued shares which have then been reacquired by the Company. Upon issuance, such shares shall be fully paid and nonassessable. The shares of stock issued pursuant to this Agreement shall be held in book entry form and no certificates shall be issued therefor; provided however, that certificates may be issued for shares of stock issued pursuant to this Agreement at the request of the holder and in accordance with the Articles of Amendment and Restatement of the Company, as amended and supplemented from time to time, and the Amended and Restated Bylaws of the Company, as amended and supplemented from time to time, upon the fulfillment of all of the following conditions:

(a) The admission of such shares to listing on all stock exchanges on which such class of stock is then listed;

(b) The completion of any registration or other qualification of such shares under any state or federal law or under rulings or regulations of the Securities and Exchange Commission or of any other governmental regulatory body, which the Committee shall, in its absolute discretion, deem necessary or advisable;

(c) The obtaining of any approval or other clearance from any state or federal governmental agency which the Committee shall, in its absolute discretion, determine to be necessary or advisable;

(d) The lapse of such reasonable period of time as the Committee may from time to time establish for reasons of administrative convenience; and

(e) The receipt by the Company of full payment for any applicable withholding or other employment tax or required payments with respect to any such shares to the Company with respect to the issuance or vesting of such shares.

In the event that the Company delays a distribution or payment in settlement of RSUs because it reasonably determines that the issuance of shares of Common Stock in settlement of RSUs will violate federal securities laws or other applicable law, such distribution or payment shall be made at the earliest date at which the Company reasonably determines that the making of such distribution or payment will not cause such violation, as required by Treasury Regulation Section 1.409A-2(b)(7)(ii). The Company shall not delay any payment if such delay will result in a violation of Section 409A of the Code.

10. Rights as Stockholder . Neither Grantee nor any person claiming under or through Grantee will have any of the rights or privileges of a stockholder of the Company in respect of any shares of Common Stock

 

3


deliverable hereunder unless and until certificates representing such shares of Stock will have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to Grantee or any person claiming under or through Grantee.

11. Tax Withholding . The Company, the Services Company, the Partnership or any Subsidiary shall have the authority and the right to deduct or withhold, or require Grantee to remit to the Company, the Services Company, the Partnership or any Subsidiary, as applicable, an amount sufficient to satisfy federal, state, local and foreign taxes (including Grantee’s FICA obligation) required by law to be withheld with respect to the issuance, vesting or payment of the RSUs and the Dividend Equivalents. The Committee may in its discretion and in satisfaction of the foregoing requirement allow Grantee to elect to have the Company or the Employer, as applicable, withhold shares of Common Stock otherwise issuable under such award (or allow the return of shares of Common Stock) having a Fair Market Value equal to the sums required to be withheld. Notwithstanding any other provision of the Plan or this Agreement, the number of shares of Common Stock which may be withheld with respect to the issuance, vesting or payment of the RSUs in order to satisfy Grantee’s income and payroll tax liabilities with respect to the issuance, vesting or payment of the RSUs and the Dividend Equivalents shall be limited to the number of shares which have a fair market value on the date of withholding equal to the aggregate amount of such liabilities based on the minimum statutory withholding rates for tax income and payroll tax purposes that are applicable to such supplemental taxable income.

12. Remedies . Grantee shall be liable to the Company for all costs and damages, including incidental and consequential damages, resulting from a disposition of the RSUs which is in violation of the provisions of this Agreement. Without limiting the generality of the foregoing, Grantee agrees that the Company shall be entitled to obtain specific performance of the obligations of Grantee under this Agreement and immediate injunctive relief in the event any action or proceeding is brought in equity to enforce the same. Grantee will not urge as a defense that there is an adequate remedy at law.

13. Restrictions on Public Sale by Grantee . To the extent not inconsistent with applicable law, Grantee agrees not to effect any sale or distribution of the RSUs or any similar security of the Company, or any securities convertible into or exchangeable or exercisable for such securities, including a sale pursuant to Rule 144 under the Securities Act, during the fourteen (14) days prior to, and during the up to 90 day period beginning on, the date of the pricing of any public or private debt or equity securities offering by the Company (except as part of such offering), if and to the extent requested in writing by the Partnership or the Company in the case of a non-underwritten public or private offering or if and to the extent requested in writing by the managing underwriter or underwriters (or initial purchaser or initial purchasers, as the case may be) and consented to by the Company, which consent may be given or withheld in the Company’s sole and absolute discretion, in the case of an underwritten public or private offering (such agreement to be in the form of lock-up agreement provided by the Company or managing underwriter or underwriters, as the case may be).

14. Conformity to Securities Laws . Grantee acknowledges that the Plan and this Agreement are intended to conform to the extent necessary with all provisions of all applicable federal and state laws, rules and regulations (including, but not limited to the Securities Act and the Exchange Act and any and all regulations and rules promulgated by the Securities and Exchange Commission thereunder, including without limitation the applicable exemptive conditions of Rule 16b-3 of the Exchange Act) and to such approvals by any listing, regulatory or other governmental authority as may, in the opinion of counsel for the Company, be necessary or advisable in connection therewith. Notwithstanding anything herein to the contrary, the Plan shall be administered, and the RSUs are granted, only in such a manner as to conform to such laws, rules and regulations. To the extent permitted by applicable law, the Plan, this Agreement and the RSUs shall be deemed amended to the extent necessary to conform to such laws, rules and regulations.

15. Code Section 409A . To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued

 

4


thereunder, including without limitation any such regulations or other guidance that may be issued after the effective date of this Agreement. Notwithstanding any provision of this Agreement to the contrary, in the event that following the effective date of this Agreement, the Company determines that the RSUs may be subject to Section 409A of the Code and related Department of Treasury guidance (including such Department of Treasury guidance as may be issued after the effective date of this Agreement ), the Company may adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect ), or take any other actions, that the Company determines are necessary or appropriate to (a) exempt the RSUs from Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the RSUs, or (b) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance; provided, however, that this Section 15 shall not create any obligation on the part of the Company, the Partnership or any Subsidiary to adopt any such amendment, policy or procedure or take any such other action. For purposes of Section 409A of the Code, any right to a series of payments pursuant to this Agreement shall be treated as a right to a series of separate payments.

16. No Right to Continued Service . Nothing in this Agreement shall confer upon Grantee any right to continue as a Service Provider of the Company, the Partnership or any Subsidiary, or shall interfere with or restrict in any way the rights of the Company, the Partnership or any Subsidiary, which rights are hereby expressly reserved, to discharge Grantee at any time for any reason whatsoever, with or without cause.

17. Miscellaneous .

(a) Incorporation of the Plan . This Agreement is made under and subject to and governed by all of the terms and conditions of the Plan. In the event of any discrepancy or inconsistency between this Agreement and the Plan, the terms and conditions of the Plan shall control. By signing this Agreement, Grantee confirms that he or she has received a copy of the Plan and has had an opportunity to review the contents thereof.

(b) Clawback . This award, the RSUs and the shares of Common Stock issuable with respect to the RSUs shall be subject to any clawback or recoupment policy currently in effect or as may be adopted by the Company, as may be amended from time to time.

(c) Successors and Assigns . Subject to the limitations set forth in this Agreement, this Agreement shall be binding upon, and inure to the benefit of, the executors, administrators, heirs, legal representatives, successors and assigns of the parties hereto, including, without limitation, any business entity that succeeds to the business of the Company.

(d) Entire Agreement; Amendments and Waivers. This Agreement, together with the Plan, constitutes the entire agreement among the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties. Except as set forth in Section 15 above, this Agreement may not be amended except in an instrument in writing signed on behalf of each of the parties hereto and approved by the Committee. No amendment, supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.

(e) Severability . If for any reason one or more of the provisions contained in this Agreement or in any other instrument referred to herein, shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any other such instrument.

 

5


(f) Titles . The titles, captions or headings of the Sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

(g) Counterparts . This Agreement may be executed in any number of counterparts, any of which may be executed and transmitted by facsimile, and each of which shall be deemed to be an original, but all of which together shall be deemed to be one and the same instrument.

(h) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed within the State of California by California residents, without regard to any otherwise governing principles of conflicts of law that would choose the law of any state other than the State of California.

(i) Notices . Any notice to be given by Grantee under the terms of this Agreement shall be addressed to the General Counsel of the Company at the Company’s address set forth in Exhibit A attached hereto. Any notice to be given to Grantee shall be addressed to him or her at Grantee’s then current address on the books and records of the Company. By a notice given pursuant to this Section 17(i), either party may hereafter designate a different address for notices to be given to him. Any notice which is required to be given to Grantee shall, if Grantee is then deceased, be given to Grantee’s personal representative if such representative has previously informed the Company of his or her status and address by written notice under this Section 17(i) (and the Company shall be entitled to rely on any such notice provided to it that it in good faith believes to be true and correct, with no duty of inquiry). Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery or upon deposit in the United States mail by certified mail, with postage and fees prepaid, addressed as set forth above or upon confirmation of delivery by a nationally recognized overnight delivery service.

(j) Spousal Consent. As a condition to the Company’s and its Subsidiaries’ obligations under this Agreement, the spouse of Grantee, if any, shall execute and deliver to the Company the Consent of Spouse attached hereto as Exhibit B .

 

6


IN WITNESS WHEREOF , the parties have executed this Agreement as of the day and year first above written.

 

DIGITAL REALTY TRUST, INC.,
a Maryland corporation
By:  

 

Name:   Michael F. Foust
Title:   Chief Executive Officer

Grantee hereby accepts and agrees to be bound by all

of the terms and conditions of this Agreement.

 

 

 

7


Exhibit A

Vesting Schedule and Notice Address

Time Vesting Schedule

Company Address

4 Embarcadero Center

Suite 3200

San Francisco, California 94111


Exhibit B

CONSENT OF SPOUSE

I,              , spouse of [              ], have read and approve the foregoing Restricted Stock Unit Agreement (the “ Agreement ”) and all exhibits thereto and the Plan (as defined in the Agreement). In consideration of the granting to my spouse of the restricted stock units of Digital Realty Trust, Inc. (the “ Company ”) as set forth in the Agreement, I hereby appoint my spouse as my attorney-in-fact in respect to the exercise of any rights and taking of all actions under the Agreement and all exhibits thereto and agree to be bound by the provisions of the Agreement and all exhibits thereto insofar as I may have any rights in said Agreement or any exhibits thereto or any shares issued pursuant thereto under the community property laws or similar laws relating to marital property in effect in the state of our residence as of the date of the signing of the foregoing Agreement and exhibits thereto or otherwise. I understand that this Consent of Spouse may not be altered, amended, modified or revoked other than by a writing signed by me and the Company.

 

Grant Date:  

 

By:  

 

Print name:  

 

Dated:  

If applicable, you must print, complete and return this Consent of Spouse to

hrdirect@digitalrealty.com . Please only print and return this page.

Exhibit 12.1

Digital Realty Trust, Inc. and Subsidiaries

Statement of Computation of Ratios

(in thousands, except ratios)

 

     Year Ended December 31,  
     2013     2012      2011      2010      2009  

Income from continuing operations before noncontrolling interests

   $ 320,449      $ 216,047       $ 162,126       $ 105,412       $ 91,234   

Interest expense

     189,399        157,108         149,350         137,384         88,442   

Interest within rental expense (1)

     7,687        3,410         2,847         2,604         2,633   

Noncontrolling interests in consolidated joint ventures

     (595     444         324         288         (140
  

 

 

   

 

 

    

 

 

    

 

 

    

 

 

 

Earnings available to cover fixed charges

   $ 516,940      $ 377,009       $ 314,647       $ 245,688       $ 182,169   

Fixed charges:

             

Interest expense

   $ 189,399      $ 157,108       $ 149,350       $ 137,384       $ 88,442   

Interest within rental expense (1)

     7,687        3,410         2,847         2,604         2,633   

Capitalized interest

     26,277        21,456         17,905         10,241         9,196   
  

 

 

   

 

 

    

 

 

    

 

 

    

 

 

 
     223,363        181,974         170,102         150,229         100,271   

Preferred stock dividends

     42,905        38,672         25,397         37,004         40,404   
  

 

 

   

 

 

    

 

 

    

 

 

    

 

 

 

Fixed charges and preferred stock dividends

   $ 266,268      $ 220,646       $ 195,499       $ 187,233       $ 140,675   

Ratio of earnings to fixed charges

     2.31        2.07         1.85         1.64         1.82   

Ratio of earnings to fixed charges and preferred stock dividends

     1.94        1.71         1.61         1.31         1.29   
  

 

 

   

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Interest within rental expense represents one-third of rental expense (the approximate portion of rental expense representing interest).


Digital Realty Trust, L.P. and Subsidiaries

Statement of Computation of Ratios

(in thousands, except ratios)

 

     Year Ended December 31,  
     2013     2012      2011      2010      2009  

Income from continuing operations before noncontrolling interests

   $ 320,449      $ 216,047       $ 162,126       $ 105,412       $ 91,234   

Interest expense

     189,399        157,108         149,350         137,384         88,442   

Interest within rental expense (1)

     7,687        3,410         2,847         2,604         2,633   

Noncontrolling interests in consolidated joint ventures

     (595     444         324         288         (140
  

 

 

   

 

 

    

 

 

    

 

 

    

 

 

 

Earnings available to cover fixed charges

   $ 516,940      $ 377,009       $ 314,647       $ 245,688       $ 182,169   

Fixed charges:

             

Interest expense

   $ 189,399      $ 157,108       $ 149,350       $ 137,384       $ 88,442   

Interest within rental expense (1)

     7,687        3,410         2,847         2,604         2,633   

Capitalized interest

     26,277        21,456         17,905         10,241         9,196   
  

 

 

   

 

 

    

 

 

    

 

 

    

 

 

 
     223,363        181,974         170,102         150,229         100,271   

Preferred unit distributions

     42,905        38,672         25,397         37,004         40,404   
  

 

 

   

 

 

    

 

 

    

 

 

    

 

 

 

Fixed charges and preferred unit distributions

   $ 266,268      $ 220,646       $ 195,499       $ 187,233       $ 140,675   

Ratio of earnings to fixed charges

     2.31        2.07         1.85         1.64         1.82   

Ratio of earnings to fixed charges and preferred unit distributions

     1.94        1.71         1.61         1.31         1.29   
  

 

 

   

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Interest within rental expense represents one-third of rental expense (the approximate portion of rental expense representing interest).

Exhibit 21.1

List of Subsidiaries of Digital Realty Trust, Inc.

 

Entity Name

   Domestic Jurisdiction

1100 Space Park Holding Company LLC

   Delaware

1100 Space Park LLC

   Delaware

150 South First Street, LLC

   Delaware

1500 Space Park Holdings, LLC

   Delaware

1500 Space Park Partners, LLC

   Delaware

1525 Comstock Partners, LLC

   California

1550 Space Park Partners, LLC

   Delaware

200 Paul Holding Company, LLC

   Delaware

200 Paul, LLC

   Delaware

2001 Sixth Holdings LLC

   Delaware

2001 Sixth LLC

   Delaware

2020 Fifth Avenue LLC

   Delaware

2045-2055 LaFayette Street, LLC

   Delaware

2334 Lundy Holding Company LLC

   Delaware

2334 Lundy LLC

   Delaware

34551 Ardenwood Holding Company LLC

   Delaware

34551 Ardenwood LLC

   Delaware

4650 Old Ironsides, LLC

   Delaware

BH Digital 700-750 Holdco, LLC

   Delaware

BH Digital 700-750 M, LLC

   Delaware

BH Digital 700-750, LLC

   Delaware

BNY-Somerset NJ, LLC

   Delaware

Collins Technology Park Partners, LLC

   Delaware

Devin Shafron E and F Land Condominium Owners Association, Inc.

   Virginia

Digital - Bryan Street Partnership, L.P.

   Texas

Digital 1 Savvis Parkway, LLC

   Delaware

Digital 11085 Sun Center Drive, LLC

   Delaware

Digital 113 N. Myers, LLC

   Delaware

Digital 1201 Comstock, LLC

   Delaware

Digital 125 N. Myers, LLC

   Delaware

Digital 128 First Avenue Ground Lessee, LLC

   Delaware

Digital 128 First Avenue, LLC

   Delaware

Digital 1350 Duane, LLC

   Delaware

Digital 1500 Space Park Borrower, LLC

   Delaware

Digital 1500 Space Park, LLC

   Delaware

Digital 1550 Space Park, LLC

   Delaware

Digital 1725 Comstock, LLC

   Delaware

Digital 2020 Fifth Avenue Investor, LLC

   Delaware

Digital 210 Tucker, LLC

   Delaware

Digital 21110 Ridgetop, LLC

   Delaware


Entity Name

   Domestic Jurisdiction

Digital 2121 South Price, LLC

   Delaware

Digital 21561-21571 Beaumeade Circle, LLC

   Delaware

Digital 2260 East El Segundo, LLC

   Delaware

Digital 2950 Zanker, LLC

   Delaware

Digital 3011 Lafayette, LLC

   Delaware

Digital 365 Main, LLC

   Delaware

Digital 3825 NW Aloclek Place, LLC

   Delaware

Digital 400 Blair Road, LLC

   Delaware

Digital 444 Toyama, LLC

   Delaware

Digital 45845-45901 Nokes Boulevard, LLC

   Delaware

Digital 55 Middlesex, LLC

   Delaware

Digital 60 & 80 Merritt, LLC

   Delaware

Digital 650 Randolph, LLC

   Delaware

Digital 717 GP, LLC

   Delaware

Digital 717 Leonard, L.P.

   Texas

Digital 717 LP, LLC

   Delaware

Digital 720 2nd, LLC

   Delaware

Digital 7505 Mason King Court LLC

   Delaware

Digital 833 Chestnut, LLC

   Delaware

Digital 89th Place, LLC

   Delaware

Digital 900 Dorothy, LLC

   Delaware

Digital 900 Walnut, LLC

   Delaware

Digital Above, LLC

   Delaware

Digital Akard, LLC

   Delaware

Digital Alfred, LLC

   Delaware

Digital Aquila, LLC

   Delaware

Digital Arizona Research Park II, LLC

   Delaware

Digital Ashburn CS, LLC

   Delaware

Digital Asia, LLC

   Delaware

Digital Australia Finco Pty Ltd

   Australia

Digital Australia Investment Management Pty Limited

   Australia

Digital Beaumeade Circle Land, LLC

   Delaware

Digital Belgium Holding BVBA

   Belgium

Digital BH 800 Holdco, LLC

   Delaware

Digital BH 800 M, LLC

   Delaware

Digital BH 800, LLC

   Delaware

Digital Bièvres SCI

   France

Digital Business Trust

   Maryland

Digital Cabot, LLC

   Delaware

Digital Campus Circle, LLC

   Delaware


Entity Name

   Domestic Jurisdiction

Digital Centreport, L.P.

   Texas

Digital Chelsea, LLC

   Delaware

Digital Cochrane, LLC

   Delaware

Digital Collins Technology Park Investor, LLC

   Delaware

Digital Commerce Boulevard, LLC

   Delaware

Digital Concord Center, LLC

   Delaware

Digital Connect, LLC

   Delaware

Digital Crawley 1 S.à r.l.

   Luxembourg

Digital Crawley 2 S.à r.l.

   Luxembourg

Digital Deer Park 2, LLC

   Delaware

Digital Doug Davis, LLC

   Delaware

Digital East Cornell, LLC

   Delaware

Digital Erskine Park 2, LLC

   Delaware

Digital Federal Systems, LLC

   Delaware

Digital Gough, LLC

   Delaware

Digital Grand Avenue, LLC

   Delaware

Digital Greenspoint, L.P.

   Texas

Digital Greenspoint, LLC

   Delaware

Digital HK JV Holding Limited

   British Virgin Islands

Digital Hoofddorp B.V.

   Netherlands

Digital Investment Management Pte. Ltd.

   Singapore

Digital Japan 1 Pte. Ltd.

   Singapore

Digital Japan 2 Pte. Ltd.

   Singapore

Digital Japan Holding Pte. Ltd.

   Singapore

Digital Japan Investment Management GK

   Japan

Digital Japan, LLC

   Delaware

Digital Lafayette Chantilly, LLC

   Delaware

Digital Lakeside Holdings, LLC

   Delaware

Digital Lakeside, LLC

   Delaware

Digital Lewisville, LLC

   Delaware

Digital Loudoun II, LLC

   Delaware

Digital Loudoun Parkway Center North, LLC

   Delaware

Digital Luxembourg II S.à r.l.

   Luxembourg

Digital Luxembourg III S.à r.l.

   Luxembourg

Digital Luxembourg S.à r.l.

   Luxembourg

Digital Macquarie Park, LLC

   Delaware

Digital MetCenter 4-6, LLC

   Delaware

Digital MetCenter 7-9, LLC

   Delaware

Digital Midway GP, LLC

   Delaware

Digital Midway, L.P.

   Texas


Entity Name

   Domestic Jurisdiction

Digital Montigny SCI

   France

Digital Moran Holdings, LLC

   Delaware

Digital Netherlands 10 B.V.

   Netherlands

Digital Netherlands I B.V.

   Netherlands

Digital Netherlands II B.V.

   Netherlands

Digital Netherlands III (Dublin) B.V.

   Netherlands

Digital Netherlands IV B.V.

   Netherlands

Digital Netherlands IV Holdings B.V.

   Netherlands

Digital Netherlands IX B.V.

   Netherlands

Digital Netherlands V B.V.

   Netherlands

Digital Netherlands VII B.V.

   Netherlands

Digital Netherlands VIII B.V.

   Netherlands

Digital Network Services, LLC

   Delaware

Digital Norwood Park 2, LLC

   Delaware

Digital Norwood Park, LLC

   Delaware

Digital Olive, LLC

   Delaware

Digital Osaka 1 TMK

   Japan

Digital Paris Holding SARL

   France

Digital Phoenix Van Buren, LLC

   Delaware

Digital Pierce Holding, LLC

   Delaware

Digital Piscataway, LLC

   Delaware

Digital Printers Square, LLC

   Delaware

Digital Realty (Blanchardstown) Limited

   Ireland

Digital Realty (Camperdown House) Limited

   Jersey

Digital Realty (Cressex) S.à r.l.

   Luxembourg

Digital Realty (Management Company) Limited

   Ireland

Digital Realty (Manchester) S.à r.l.

   Luxembourg

Digital Realty (Paris 2) SCI

   France

Digital Realty (Paris) SARL

   France

Digital Realty (Redhill) S.à r.l.

   Luxembourg

Digital Realty (UK) Limited

   United Kingdom

(England & Wales)

Digital Realty (Welwyn) S.à r.l.

   Luxembourg

Digital Realty Core Properties 1 Investor, LLC

   Delaware

Digital Realty Core Properties 1 Manager, LLC

   Delaware

Digital Realty Datafirm 2, LLC

   Delaware

Digital Realty Datafirm, LLC

   Delaware

Digital Realty Management France SARL

   France

Digital Realty Management Services, LLC

   Delaware

Digital Realty Mauritius Holdings Limited

   Mauritius

Digital Realty Property Manager, LLC

   Delaware


Entity Name

   Domestic Jurisdiction

Digital Realty Trust Germany 1 GmbH

   Germany

Digital Realty Trust, L.P.

   Maryland

Digital Realty Trust, LLC

   Delaware

Digital Reston, LLC

   Delaware

Digital Saclay SCI

   France

Digital Savvis HK Holding 1 Limited

   British Virgin Islands

Digital Savvis HK JV Limited

   British Virgin Islands

Digital Savvis Investment Management HK Limited

   Hong Kong

Digital Savvis Management Subsidiary Limited

   Hong Kong

Digital Services Hong Kong Limited

   Hong Kong

Digital Services Phoenix, LLC

   Delaware

Digital Services, Inc.

   Maryland

Digital Singapore 1 Pte. Ltd.

   Singapore

Digital Singapore Jurong East Pte. Ltd.

   Singapore

Digital Sixth & Virginia, LLC

   Delaware

Digital South Price 2, LLC

   Delaware

Digital Spear Street 2, LLC

   Delaware

Digital Spear Street, LLC

   Delaware

Digital Stout Holding, LLC

   Delaware

Digital Toronto Business Trust

   Maryland

Digital Toronto Nominee, Inc.

   British Columbia

Digital Totowa, LLC

   Delaware

Digital Towerview, LLC

   Delaware

Digital Trade Street, LLC

   Delaware

Digital Vienna, LLC

   Delaware

Digital Waltham, LLC

   Delaware

Digital Waterview, LLC

   Delaware

Digital Winter, LLC

   Delaware

Digital-Bryan Street, LLC

   Delaware

Digital-PR Beaumeade Circle, LLC

   Delaware

Digital-PR Devin Shafron E, LLC

   Delaware

Digital-PR Dorothy, LLC

   Delaware

Digital-PR FAA, LLC

   Delaware

Digital-PR Mason King Court, LLC

   Delaware

Digital-PR Old Ironsides 1, LLC

   Delaware

Digital-PR Old Ironsides 2, LLC

   Delaware

Digital-PR Toyama, LLC

   Delaware

Digital-PR Venture, LLC

   Delaware

Digital-PR Zanker, LLC

   Delaware

DLR 700-750 Central, LLC

   Delaware


Entity Name

  

Domestic Jurisdiction

DLR 800 Central, LLC

   Delaware

DLR LLC

   Maryland

DRT Centreport, LLC

   Delaware

DRT Greenspoint, LLC

   Delaware

DRT-Bryan Street, LLC

   Delaware

GIP 7th Street Holding Company, LLC

   Delaware

GIP 7th Street, LLC

   Delaware

GIP Alpha General Partner, LLC

   Delaware

GIP Alpha Limited Partner, LLC

   Delaware

GIP Alpha, L.P.

   Texas

GIP Fairmont Holding Company, LLC

   Delaware

GIP Stoughton, LLC

   Delaware

GIP Wakefield Holding Company, LLC

   Delaware

GIP Wakefield, LLC

   Delaware

Global ASML, LLC

   California

Global Brea Holding Company, LLC

   Delaware

Global Brea, LLC

   Delaware

Global Gold Camp Holding Company, LLC

   Delaware

Global Gold Camp, LLC

   Delaware

Global Innovation Sunshine Holdings LLC

   Delaware

Global Kato HG, LLC

   California

Global Lafayette Street Holding Company, LLC

   Delaware

Global Marsh General Partner, LLC

   Delaware

Global Marsh Limited Partner, LLC

   Delaware

Global Marsh Member, LLC

   Delaware

Global Marsh Property Owner, L.P.

   Texas

Global Miami Acquisition Company, LLC

   Delaware

Global Miami Holding Company, LLC

   Delaware

Global Riverside, LLC

   Delaware

Global Stanford Place II, LLC

   Delaware

Global Webb, L.P.

   Texas

Global Webb, LLC

   Delaware

Global Weehawken Acquisition Company, LLC

   Delaware

Global Weehawken Holding Company, LLC

   Delaware

Loudoun Exchange Owners Association, Inc.

   Virginia

Mapp Holding Company, LLC

   California

Mapp Property, LLC

   California

Moran Road Partners, LLC

   Delaware

Redhill Park Limited

   United Kingdom
(England & Wales)

Sentrum (Croydon) Limited

   Isle of Man


Entity Name

   Domestic Jurisdiction

Sentrum Holdings Limited

   British Virgin Islands

Sentrum III Limited

   British Virgin Islands

Sentrum IV Limited

   British Virgin Islands

Sentrum Limited

   United Kingdom
(England & Wales)

Sentrum Services Limited

   United Kingdom
(England & Wales)

Sixth & Virginia Holdings, LLC

   Delaware

Sixth & Virginia Properties

   Washington

The Sentinel-Needham Primary Condominium Trust

   Massachusetts

Waspar Limited

   Ireland

Exhibit 21.2

List of Subsidiaries of Digital Realty Trust, L.P.

 

Entity Name

  

Domestic Jurisdiction

1100 Space Park Holding Company LLC

   Delaware

1100 Space Park LLC

   Delaware

150 South First Street, LLC

   Delaware

1500 Space Park Holdings, LLC

   Delaware

1500 Space Park Partners, LLC

   Delaware

1525 Comstock Partners, LLC

   California

1550 Space Park Partners, LLC

   Delaware

200 Paul Holding Company, LLC

   Delaware

200 Paul, LLC

   Delaware

2001 Sixth Holdings LLC

   Delaware

2001 Sixth LLC

   Delaware

2020 Fifth Avenue LLC

   Delaware

2045-2055 LaFayette Street, LLC

   Delaware

2334 Lundy Holding Company LLC

   Delaware

2334 Lundy LLC

   Delaware

34551 Ardenwood Holding Company LLC

   Delaware

34551 Ardenwood LLC

   Delaware

4650 Old Ironsides, LLC

   Delaware

BH Digital 700-750 Holdco, LLC

   Delaware

BH Digital 700-750 M, LLC

   Delaware

BH Digital 700-750, LLC

   Delaware

BNY-Somerset NJ, LLC

   Delaware

Collins Technology Park Partners, LLC

   Delaware

Devin Shafron E and F Land Condominium Owners Association, Inc.

   Virginia

Digital - Bryan Street Partnership, L.P.

   Texas

Digital 1 Savvis Parkway, LLC

   Delaware

Digital 11085 Sun Center Drive, LLC

   Delaware

Digital 113 N. Myers, LLC

   Delaware

Digital 1201 Comstock, LLC

   Delaware

Digital 125 N. Myers, LLC

   Delaware

Digital 128 First Avenue Ground Lessee, LLC

   Delaware

Digital 128 First Avenue, LLC

   Delaware

Digital 1350 Duane, LLC

   Delaware

Digital 1500 Space Park Borrower, LLC

   Delaware

Digital 1500 Space Park, LLC

   Delaware

Digital 1550 Space Park, LLC

   Delaware

Digital 1725 Comstock, LLC

   Delaware

Digital 2020 Fifth Avenue Investor, LLC

   Delaware

Digital 210 Tucker, LLC

   Delaware

Digital 21110 Ridgetop, LLC

   Delaware


Entity Name

   Domestic Jurisdiction

Digital 2121 South Price, LLC

   Delaware

Digital 21561-21571 Beaumeade Circle, LLC

   Delaware

Digital 2260 East El Segundo, LLC

   Delaware

Digital 2950 Zanker, LLC

   Delaware

Digital 3011 Lafayette, LLC

   Delaware

Digital 365 Main, LLC

   Delaware

Digital 3825 NW Aloclek Place, LLC

   Delaware

Digital 400 Blair Road, LLC

   Delaware

Digital 444 Toyama, LLC

   Delaware

Digital 45845-45901 Nokes Boulevard, LLC

   Delaware

Digital 55 Middlesex, LLC

   Delaware

Digital 60 & 80 Merritt, LLC

   Delaware

Digital 650 Randolph, LLC

   Delaware

Digital 717 GP, LLC

   Delaware

Digital 717 Leonard, L.P.

   Texas

Digital 717 LP, LLC

   Delaware

Digital 720 2nd, LLC

   Delaware

Digital 7505 Mason King Court LLC

   Delaware

Digital 833 Chestnut, LLC

   Delaware

Digital 89th Place, LLC

   Delaware

Digital 900 Dorothy, LLC

   Delaware

Digital 900 Walnut, LLC

   Delaware

Digital Above, LLC

   Delaware

Digital Akard, LLC

   Delaware

Digital Alfred, LLC

   Delaware

Digital Aquila, LLC

   Delaware

Digital Arizona Research Park II, LLC

   Delaware

Digital Ashburn CS, LLC

   Delaware

Digital Asia, LLC

   Delaware

Digital Australia Finco Pty Ltd

   Australia

Digital Australia Investment Management Pty Limited

   Australia

Digital Beaumeade Circle Land, LLC

   Delaware

Digital Belgium Holding BVBA

   Belgium

Digital BH 800 Holdco, LLC

   Delaware

Digital BH 800 M, LLC

   Delaware

Digital BH 800, LLC

   Delaware

Digital Bièvres SCI

   France

Digital Business Trust

   Maryland

Digital Cabot, LLC

   Delaware

Digital Campus Circle, LLC

   Delaware


Entity Name

   Domestic Jurisdiction

Digital Centreport, L.P.

   Texas

Digital Chelsea, LLC

   Delaware

Digital Cochrane, LLC

   Delaware

Digital Collins Technology Park Investor, LLC

   Delaware

Digital Commerce Boulevard, LLC

   Delaware

Digital Concord Center, LLC

   Delaware

Digital Connect, LLC

   Delaware

Digital Crawley 1 S.à r.l.

   Luxembourg

Digital Crawley 2 S.à r.l.

   Luxembourg

Digital Deer Park 2, LLC

   Delaware

Digital Doug Davis, LLC

   Delaware

Digital East Cornell, LLC

   Delaware

Digital Erskine Park 2, LLC

   Delaware

Digital Federal Systems, LLC

   Delaware

Digital Gough, LLC

   Delaware

Digital Grand Avenue, LLC

   Delaware

Digital Greenspoint, L.P.

   Texas

Digital Greenspoint, LLC

   Delaware

Digital HK JV Holding Limited

   British Virgin Islands

Digital Hoofddorp B.V.

   Netherlands

Digital Investment Management Pte. Ltd.

   Singapore

Digital Japan 1 Pte. Ltd.

   Singapore

Digital Japan 2 Pte. Ltd.

   Singapore

Digital Japan Holding Pte. Ltd.

   Singapore

Digital Japan Investment Management GK

   Japan

Digital Japan, LLC

   Delaware

Digital Lafayette Chantilly, LLC

   Delaware

Digital Lakeside Holdings, LLC

   Delaware

Digital Lakeside, LLC

   Delaware

Digital Lewisville, LLC

   Delaware

Digital Loudoun II, LLC

   Delaware

Digital Loudoun Parkway Center North, LLC

   Delaware

Digital Luxembourg II S.à r.l.

   Luxembourg

Digital Luxembourg III S.à r.l.

   Luxembourg

Digital Luxembourg S.à r.l.

   Luxembourg

Digital Macquarie Park, LLC

   Delaware

Digital MetCenter 4-6, LLC

   Delaware

Digital MetCenter 7-9, LLC

   Delaware

Digital Midway GP, LLC

   Delaware

Digital Midway, L.P.

   Texas


Entity Name

   Domestic Jurisdiction

Digital Montigny SCI

   France

Digital Moran Holdings, LLC

   Delaware

Digital Netherlands 10 B.V.

   Netherlands

Digital Netherlands I B.V.

   Netherlands

Digital Netherlands II B.V.

   Netherlands

Digital Netherlands III (Dublin) B.V.

   Netherlands

Digital Netherlands IV B.V.

   Netherlands

Digital Netherlands IV Holdings B.V.

   Netherlands

Digital Netherlands IX B.V.

   Netherlands

Digital Netherlands V B.V.

   Netherlands

Digital Netherlands VII B.V.

   Netherlands

Digital Netherlands VIII B.V.

   Netherlands

Digital Network Services, LLC

   Delaware

Digital Norwood Park 2, LLC

   Delaware

Digital Norwood Park, LLC

   Delaware

Digital Olive, LLC

   Delaware

Digital Osaka 1 TMK

   Japan

Digital Paris Holding SARL

   France

Digital Phoenix Van Buren, LLC

   Delaware

Digital Pierce Holding, LLC

   Delaware

Digital Piscataway, LLC

   Delaware

Digital Printers Square, LLC

   Delaware

Digital Realty (Blanchardstown) Limited

   Ireland

Digital Realty (Camperdown House) Limited

   Jersey

Digital Realty (Cressex) S.à r.l.

   Luxembourg

Digital Realty (Management Company) Limited

   Ireland

Digital Realty (Manchester) S.à r.l.

   Luxembourg

Digital Realty (Paris 2) SCI

   France

Digital Realty (Paris) SARL

   France

Digital Realty (Redhill) S.à r.l.

   Luxembourg

Digital Realty (UK) Limited

   United Kingdom
(England & Wales)

Digital Realty (Welwyn) S.à r.l.

   Luxembourg

Digital Realty Core Properties 1 Investor, LLC

   Delaware

Digital Realty Core Properties 1 Manager, LLC

   Delaware

Digital Realty Datafirm 2, LLC

   Delaware

Digital Realty Datafirm, LLC

   Delaware

Digital Realty Management France SARL

   France

Digital Realty Management Services, LLC

   Delaware

Digital Realty Mauritius Holdings Limited

   Mauritius

Digital Realty Property Manager, LLC

   Delaware


Entity Name

   Domestic Jurisdiction

Digital Realty Trust Germany 1 GmbH

   Germany

Digital Realty Trust, LLC

   Delaware

Digital Reston, LLC

   Delaware

Digital Saclay SCI

   France

Digital Savvis HK Holding 1 Limited

   British Virgin Islands

Digital Savvis HK JV Limited

   British Virgin Islands

Digital Savvis Investment Management HK Limited

   Hong Kong

Digital Savvis Management Subsidiary Limited

   Hong Kong

Digital Services Hong Kong Limited

   Hong Kong

Digital Services Phoenix, LLC

   Delaware

Digital Services, Inc.

   Maryland

Digital Singapore 1 Pte. Ltd.

   Singapore

Digital Singapore Jurong East Pte. Ltd.

   Singapore

Digital Sixth & Virginia, LLC

   Delaware

Digital South Price 2, LLC

   Delaware

Digital Spear Street 2, LLC

   Delaware

Digital Spear Street, LLC

   Delaware

Digital Stout Holding, LLC

   Delaware

Digital Toronto Business Trust

   Maryland

Digital Toronto Nominee, Inc.

   British Columbia

Digital Totowa, LLC

   Delaware

Digital Towerview, LLC

   Delaware

Digital Trade Street, LLC

   Delaware

Digital Vienna, LLC

   Delaware

Digital Waltham, LLC

   Delaware

Digital Waterview, LLC

   Delaware

Digital Winter, LLC

   Delaware

Digital-Bryan Street, LLC

   Delaware

Digital-PR Beaumeade Circle, LLC

   Delaware

Digital-PR Devin Shafron E, LLC

   Delaware

Digital-PR Dorothy, LLC

   Delaware

Digital-PR FAA, LLC

   Delaware

Digital-PR Mason King Court, LLC

   Delaware

Digital-PR Old Ironsides 1, LLC

   Delaware

Digital-PR Old Ironsides 2, LLC

   Delaware

Digital-PR Toyama, LLC

   Delaware

Digital-PR Venture, LLC

   Delaware

Digital-PR Zanker, LLC

   Delaware

DLR 700-750 Central, LLC

   Delaware

DLR 800 Central, LLC

   Delaware


Entity Name

 

Domestic Jurisdiction

DLR LLC

  Maryland

DRT Centreport, LLC

  Delaware

DRT Greenspoint, LLC

  Delaware

DRT-Bryan Street, LLC

  Delaware

GIP 7th Street Holding Company, LLC

  Delaware

GIP 7th Street, LLC

  Delaware

GIP Alpha General Partner, LLC

  Delaware

GIP Alpha Limited Partner, LLC

  Delaware

GIP Alpha, L.P.

  Texas

GIP Fairmont Holding Company, LLC

  Delaware

GIP Stoughton, LLC

  Delaware

GIP Wakefield Holding Company, LLC

  Delaware

GIP Wakefield, LLC

  Delaware

Global ASML, LLC

  California

Global Brea Holding Company, LLC

  Delaware

Global Brea, LLC

  Delaware

Global Gold Camp Holding Company, LLC

  Delaware

Global Gold Camp, LLC

  Delaware

Global Innovation Sunshine Holdings LLC

  Delaware

Global Kato HG, LLC

  California

Global Lafayette Street Holding Company, LLC

  Delaware

Global Marsh General Partner, LLC

  Delaware

Global Marsh Limited Partner, LLC

  Delaware

Global Marsh Member, LLC

  Delaware

Global Marsh Property Owner, L.P.

  Texas

Global Miami Acquisition Company, LLC

  Delaware

Global Miami Holding Company, LLC

  Delaware

Global Riverside, LLC

  Delaware

Global Stanford Place II, LLC

  Delaware

Global Webb, L.P.

  Texas

Global Webb, LLC

  Delaware

Global Weehawken Acquisition Company, LLC

  Delaware

Global Weehawken Holding Company, LLC

  Delaware

Loudoun Exchange Owners Association, Inc.

  Virginia

Mapp Holding Company, LLC

  California

Mapp Property, LLC

  California

Moran Road Partners, LLC

  Delaware

Redhill Park Limited

  United Kingdom

(England & Wales)

Sentrum (Croydon) Limited

  Isle of Man

Sentrum Holdings Limited

  British Virgin Islands


Entity Name

   Domestic Jurisdiction

Sentrum III Limited

   British Virgin Islands

Sentrum IV Limited

   British Virgin Islands

Sentrum Limited

   United Kingdom

(England & Wales)

Sentrum Services Limited

   United Kingdom
(England & Wales)

Sixth & Virginia Holdings, LLC

   Delaware

Sixth & Virginia Properties

   Washington

The Sentinel-Needham Primary Condominium Trust

   Massachusetts

Waspar Limited

   Ireland

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

The Board of Directors

Digital Realty Trust, Inc.

and

The Board of Directors of the General Partner

Digital Realty Trust, L.P.:

We consent to the incorporation by reference in the registration statements (Nos. 333-147746 and 333-121353) on Form S-8 of Digital Realty Trust, Inc., (Nos. 333-1635505, 333-142396, 333-129688 and 333-180886) on Form S-3 of Digital Realty Trust, Inc. and (333-158958, 333-158958-01 and 333-180886-01) on Form S-3 of Digital Realty Trust Inc. and Digital Realty Trust, L.P. of our reports dated February 28, 2014, with respect to:

 

  (i) The consolidated balance sheets of Digital Realty Trust, Inc. and subsidiaries as of December 31, 2013 and 2012, and the related consolidated income statements, statements of comprehensive income, equity, and cash flows for each of the years in the three-year period ended December 31, 2013, and the related financial statement schedule III, properties and accumulated depreciation;

 

  (ii) The effectiveness of Digital Realty Trust, Inc.’s internal control over financial reporting as of December 31, 2013, and

 

  (iii) The consolidated balance sheets of Digital Realty Trust, L.P. and subsidiaries as of December 31, 2013 and 2012, and the related consolidated income statements, statements of comprehensive income, capital, and cash flows for each of the years in the three-year period ended December 31, 2013, and the related financial statement schedule III, properties and accumulated depreciation,

which reports appear in the December 31, 2013 annual report on Form 10-K of Digital Realty Trust, Inc. and Digital Realty Trust, L.P.

/s/ KPMG LLP

San Francisco, California

February 28, 2014

Exhibit 31.1

Certification of Principal Executive Officer

Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, Michael F. Foust, certify that:

1. I have reviewed this annual report on Form 10-K of Digital Realty Trust, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Dated: February 28, 2014

 

By:

 

/s/     MICHAEL F. FOUST

 

Michael F. Foust

Chief Executive Officer

(Principal Executive Officer)

Exhibit 31.2

Certification of Principal Financial Officer

Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, A. William Stein, certify that:

1. I have reviewed this annual report on Form 10-K of Digital Realty Trust, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Dated: February 28, 2014

 

By:   / S /    A. WILLIAM STEIN        
  A. William Stein
 

Chief Financial Officer and Chief Investment Officer

(Principal Financial Officer)

Exhibit 31.3

Certification of Principal Executive Officer

Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, Michael F. Foust, certify that:

1. I have reviewed this annual report on Form 10-K of Digital Realty Trust, L.P.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Dated: February 28, 2014

 

By:   /s/    MICHAEL F. FOUST        
  Michael F. Foust
 

Chief Executive Officer

(Principal Executive Officer)

Digital Realty Trust, Inc., sole general partner of

Digital Realty Trust, L.P.

Exhibit 31.4

Certification of Principal Financial Officer

Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, A. William Stein, certify that:

1. I have reviewed this annual report on Form 10-K of Digital Realty Trust, L.P.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Dated: February 28, 2014

 

By:   /s/    A. WILLIAM STEIN        
  A. William Stein
 

Chief Financial Officer and Chief Investment Officer

(Principal Financial Officer)

Digital Realty Trust, Inc., sole general partner of

Digital Realty Trust, L.P.

Exhibit 32.1

Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as

Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

Pursuant to 18 U.S.C. § 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of Digital Realty Trust, Inc. (the “Company”) hereby certifies, to such officer’s knowledge, that:

(i) the accompanying Annual Report on Form 10-K of the Company for the year ended December 31, 2013 (the “Report”) fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended; and

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company at the dates and for the periods indicated.

Dated: February 28, 2014

 

/ S /     MICHAEL F. FOUST        

Michael F. Foust
Chief Executive Officer

Pursuant to Securities and Exchange Commission Release 33-8238, dated June 5, 2003, this certification is being furnished and shall not be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or incorporated by reference in any registration statement of the Company filed under the Securities Act of 1933, as amended.

A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.

Exhibit 32.2

Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as

Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

Pursuant to 18 U.S.C. § 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of Digital Realty Trust, Inc. (the “Company”) hereby certifies, to such officer’s knowledge, that:

(i) the accompanying Annual Report on Form 10-K of the Company for the year ended December 31, 2013 (the “Report”) fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended; and

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company at the dates and for the periods indicated.

Dated: February 28, 2014

 

/ S /    A. WILLIAM STEIN        

A. William Stein
Chief Financial Officer

Pursuant to Securities and Exchange Commission Release 33-8238, dated June 5, 2003, this certification is being furnished and shall not be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or incorporated by reference in any registration statement of the Company filed under the Securities Act of 1933, as amended.

A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.

Exhibit 32.3

Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as

Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

Pursuant to 18 U.S.C. § 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of Digital Realty Trust, Inc., in its capacity as the sole general partner of Digital Realty Trust, L.P. (the “Operating Partnership”), hereby certifies, to such officer’s knowledge, that:

(i) the accompanying Annual Report on Form 10-K of the Operating Partnership for the year ended December 31, 2013 (the “Report”) fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended; and

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Operating Partnership at the dates and for the periods indicated.

Dated: February 28, 2014

 

/ S /    MICHAEL F. FOUST        

Michael F. Foust

Chief Executive Officer

Digital Realty Trust, Inc., sole general partner of

Digital Realty Trust, L.P.

Pursuant to Securities and Exchange Commission Release 33-8238, dated June 5, 2003, this certification is being furnished and shall not be deemed filed by the Operating Partnership for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or incorporated by reference in any registration statement of the Operating Partnership filed under the Securities Act of 1933, as amended.

A signed original of this written statement required by Section 906 has been provided to the Operating Partnership and will be retained by the Operating Partnership and furnished to the Securities and Exchange Commission or its staff upon request.

Exhibit 32.4

Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as

Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

Pursuant to 18 U.S.C. § 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of Digital Realty Trust, Inc., in its capacity as the sole general partner of Digital Realty Trust, L.P. (the “Operating Partnership”), hereby certifies, to such officer’s knowledge, that:

(i) the accompanying Annual Report on Form 10-K of the Operating Partnership for the year ended December 31, 2013 (the “Report”) fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended; and

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Operating Partnership at the dates and for the periods indicated.

Dated: February 28, 2014

 

/ S /    A. WILLIAM STEIN        
A. William Stein

Chief Financial Officer

Digital Realty Trust, Inc., sole general partner of

Digital Realty Trust, L.P.

Pursuant to Securities and Exchange Commission Release 33-8238, dated June 5, 2003, this certification is being furnished and shall not be deemed filed by the Operating Partnership for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or incorporated by reference in any registration statement of the Operating Partnership filed under the Securities Act of 1933, as amended.

A signed original of this written statement required by Section 906 has been provided to the Operating Partnership and will be retained by the Operating Partnership and furnished to the Securities and Exchange Commission or its staff upon request.