Digital Realty Trust, Inc 8-K, filed Dec 6, 2022
Digital Realty Trust, Inc. (DLR)
About this 8-K
Digital Realty Trust, Inc filed this 8-K on December 6, 2022.
Items reported
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
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| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
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(Address of principal executive offices) |
(Zip Code) | |||
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Title of each class |
Trading symbol(s) |
Name of each exchange on which registered | ||
| Digital Realty Trust, Inc.: |
Emerging growth company | |
| Digital Realty Trust, L.P.: |
Emerging growth company | |
Item 8.01. |
Other Events. |
| • | default for 30 days in the payment of any installment of interest under the Notes; |
| • | default in the payment of the principal amount or redemption price due with respect to the Notes, when the same becomes due and payable; |
| • | our failure to comply with any of our other agreements in the Notes or the indenture upon receipt by us of notice of such default by the trustee or by holders of not less than 25% in aggregate principal amount of the Notes then outstanding and our failure to cure (or obtain a waiver of) such default within 90 days after we receive such notice; |
| • | failure to pay any indebtedness (other than non-recourse indebtedness) that is (a) of Digital Realty Trust, L.P., Digital Realty Trust, Inc., any subsidiary in which Digital Realty Trust, L.P. has invested at least $75,000,000 in capital or any entity in which Digital Realty Trust, L.P. is the general partner, and (b) in an outstanding principal amount in excess of $75,000,000 at final maturity or upon acceleration after the expiration of any applicable grace period, which indebtedness (other than non-recourse indebtedness) is not discharged, or such default in payment or acceleration is not cured or rescinded, within 60 days after written notice to us from the trustee (or to us and the trustee from holders of at least 25% in principal amount of the outstanding Notes); and |
| • | certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of Digital Realty Trust, L.P., Digital Realty Trust, Inc. or any significant subsidiary (as defined in the indenture) or any substantial part of their respective property. |
Item 9.01. |
Financial Statements and Exhibits. |
Exhibit Number |
Description | |
| 5.1 | Opinion of Venable LLP. | |
| 5.2 | Opinion of Latham & Watkins LLP. | |
| 23.1 | Consent of Venable LLP (included in Exhibit 5.1). | |
| 23.2 | Consent of Latham & Watkins LLP (included in Exhibit 5.2). | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | |
Digital Realty Trust, Inc. | ||
| By: | /s/ Jeannie Lee | |
Jeannie Lee | ||
Executive Vice President, General Counsel and Secretary | ||
Digital Realty Trust, L.P. | ||
| By: | Digital Realty Trust, Inc. | |
| Its general partner | ||
| By: | /s/ Jeannie Lee | |
Jeannie Lee | ||
Executive Vice President, General Counsel and Secretary | ||
Exhibit 5.1
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December 6, 2022
Digital Realty Trust, Inc.
Digital Realty Trust, L.P.
5707 Southwest Parkway
Building 1, Suite 275
Austin, Texas 78735
| Re: | Registration Statement on Form S-3 (Registration Nos. 333-237232 and 333-237232-01) |
Ladies and Gentlemen:
We have served as Maryland counsel to Digital Realty Trust, Inc., a Maryland corporation (the “Company”), and Digital Realty Trust, L.P., a Maryland limited partnership (the “Operating Partnership”), in connection with certain matters of Maryland law arising out of the registration of $350,000,000 aggregate principal amount of the Operating Partnership’s 5.550% Notes due 2028 (the “Notes”), and the guarantee by the Company of the obligations of the Operating Partnership under the Notes (the “Guarantee”). The Notes and the Guarantee are covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company and the Operating Partnership with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).
In connection with our representation of the Company and the Operating Partnership, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):
1. The Registration Statement;
2. The Prospectus, dated March 17, 2020, as supplemented by a Prospectus Supplement, dated November 29, 2022, filed with the Commission pursuant to Rule 424(b)(2) of the General Rules and Regulations promulgated under the 1933 Act;
3. The charter of the Company, certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
4. The Eighth Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;
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December 6, 2022
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5. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
6. The Certificate of Limited Partnership of the Operating Partnership, certified by the SDAT;
7. The Nineteenth Amended and Restated Agreement of Limited Partnership of the Operating Partnership, certified as of the date hereof by an officer of the Company;
8. A certificate of the SDAT as to the good standing of the Operating Partnership, dated as of a recent date;
9. Resolutions adopted by the Board of Directors of the Company, in its own capacity and in its capacity as the sole general partner of the Operating Partnership, or by a duly authorized committee thereof, relating to, among other matters, (a) the sale and issuance of the Notes, (b) the Guarantee and (c) the authorization of the execution, delivery and performance by the Company and the Operating Partnership of the Indenture (as defined herein), certified as of the date hereof by an officer of the Company;
10. The Indenture, dated as of June 23, 2015 (the “Base Indenture”), by and among the Operating Partnership, the Company and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”);
11. Supplemental Indenture No. 5, dated as of September 27, 2022 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), by and among the Operating Partnership, the Company and the Trustee;
12. The Guarantee contained in the Indenture;
13. A certificate executed by an officer of the Company, dated as of the date hereof; and
14. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or any other person, is legally competent to do so.
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December 6, 2022
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2. Each individual executing any of the Documents on behalf of a party (other than the Company or the Operating Partnership) is duly authorized to do so.
3. Each of the parties (other than the Company or the Operating Partnership) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT. The Operating Partnership is a limited partnership duly formed and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. The execution, delivery and performance of the Indenture have been duly authorized by all necessary corporate action of the Company and all necessary limited partnership action of the Operating Partnership. The Notes have been duly authorized for issuance by the Operating Partnership. The Guarantee has been duly authorized by the Company.
3. The Indenture has been duly executed and delivered by the Company and the Operating Partnership.
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning United States federal law or the laws of any other jurisdiction. We express no opinion as to compliance with any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein
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December 6, 2022
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would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Notes and the Guarantee (the “Current Report”), which is incorporated by reference in the Registration Statement. Latham & Watkins LLP, counsel to the Company and the Operating Partnership, may rely on this opinion in connection with any opinions to be delivered by it in connection with the Notes and the Guarantee. We hereby consent to the filing of this opinion as an exhibit to the Current Report and the said incorporation by reference and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
/s/ Venable LLP
Exhibit 5.2
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355 South Grand Avenue, Suite 100 Los Angeles, California 90071-1560 Tel: +1.213.485.1234 Fax: +1.213.891.8763
www.lw.com
FIRM / AFFILIATE OFFICES
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| December 6, 2022 | Dubai | San Diego | ||||
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| Houston | Singapore | |||||
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| Madrid | Washington, D.C. | |||||
Digital Realty Trust, Inc.
Digital Realty Trust, L.P.
5707 Southwest Parkway, Building 1, Suite 275
Austin, Texas 78735
| Re: | Registration Statement on Form S-3 and Prospectus Supplement; $350,000,000 Aggregate Principal Amount of Digital Realty Trust, L.P.’s 5.550% Notes Due 2028 |
To the addressees set forth above:
We have acted as special counsel to Digital Realty Trust, Inc., a Maryland corporation (the “Guarantor”), and Digital Realty Trust, L.P., a Maryland limited partnership (the “Operating Partnership”), in connection with the issuance of $350,000,000 aggregate principal amount of the Operating Partnership’s 5.550% Notes due 2028 (the “Additional Notes”) and the guarantee of the Additional Notes (the “Guarantee”) by the Guarantor, under an indenture, dated June 23, 2015 (the “Base Indenture”), among the Operating Partnership, the Guarantor and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by Supplemental Indenture No. 5, dated September 27, 2022, among the Operating Partnership, the Guarantor and the Trustee (the “Supplemental Indenture,” and together with the Base Indenture, the “Indenture”), and pursuant to a registration statement on Form S-3 under the Securities Act of 1933, as amended (the “Act”), filed with the Securities and Exchange Commission (the “Commission”) on March 17, 2020 (Registration Nos. 333-237232 and 333-237232-01) (as so filed and as amended, the “Registration Statement”), a base prospectus, dated March 17, 2020, included as part of the Registration Statement (the “Base Prospectus”), a preliminary prospectus supplement, dated November 29, 2022, filed with the Commission pursuant to Rule 424(b) under the Act, a prospectus supplement, dated November 29, 2022, filed with the Commission pursuant to Rule 424(b) under the Act (together with the Base Prospectus, the “Prospectus”), and an underwriting agreement, dated November 29, 2022 (the “Underwriting Agreement”), among the Operating Partnership, the Guarantor and BofA Securities, Inc. and Citigroup Global Markets Inc. as representatives of the several underwriters named therein.
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For the avoidance of doubt, it is understood and agreed that for purposes of this letter, the term “Additional Notes” shall exclude the $550,000,000 aggregate principle amount of 5.550% Notes due 2028 sold by the Company on September 27, 2022. This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or Prospectus, other than as expressly stated herein with respect to the issue of the Additional Notes and Guarantee.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Operating Partnership, the Guarantor and others as to factual matters without having independently verified such factual matters. We are opining herein as to the internal laws of the State of New York, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or as to any matters of municipal law or the laws of any local agencies within any state. Various issues concerning Maryland law are addressed in the opinion of Venable LLP, which has been separately provided to you. We express no opinion with respect to those matters herein, and to the extent elements of those opinions are necessary to the conclusions expressed herein, we have, with your consent, assumed such matters.
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Additional Notes have been duly executed, issued and authenticated in accordance with the terms of the Indenture and delivered against payment therefor in the circumstances contemplated by the Underwriting Agreement, the Additional Notes and the Guarantee will be legally valid and binding obligations of the Operating Partnership and the Guarantor, respectively, enforceable against the Operating Partnership and the Guarantor in accordance with their respective terms.
Our opinion is subject to: (i) the effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights and remedies of creditors; (ii) (a) the effect of general principles of equity, whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief), (b) concepts of materiality, reasonableness, good faith and fair dealing, and (c) the discretion of the court before which a proceeding is brought and (iii) the invalidity under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy. We express no opinion as to (a) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty, (b) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies or judicial relief, (c) the waiver of rights or defenses contained in Sections 4.4, 6.13, 12.1(d) and 12.3 of the Base Indenture (except, with respect to Section 12.3, to the extent such waiver is limited to the fullest extent that the Guarantor may do so under applicable law), (d) any provision requiring the payment of attorneys’ fees, where such payment is contrary to law or public policy, (e) any provision permitting, upon acceleration of the Additional Notes, collection of that portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon, (f) the creation, validity, attachment, perfection, or priority of any lien or security interest, (g) advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights, (h) waivers of broadly or vaguely stated rights, (i) provisions for exclusivity, election or cumulation of rights or remedies, (j) provisions authorizing or validating conclusive or discretionary determinations, (k) grants of setoff rights, (l) proxies, powers and trusts, (m) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or property, (n) provisions purporting to make a guarantor primarily liable rather than as a surety, (o) provisions purporting to waive modifications of any guaranteed obligation to the extent such modification constitutes a novation, (p) any provision to the extent it requires that a claim with respect to a security denominated in other than U.S. dollars (or a judgment in respect of such a claim) be converted into U.S. dollars at a rate of exchange at a particular date, to the extent applicable law otherwise provides, (q) provisions purporting to make a guarantor primarily liable rather than as a surety and provisions purporting to waive modifications of any guaranteed obligation to the extent such modification constitutes a novation and (r) the severability, if invalid, of provisions to the foregoing effect.
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We express no opinion or confirmation as to federal or state securities laws, tax laws, antitrust or trade regulation laws, insolvency or fraudulent transfer laws, antifraud laws, compliance with fiduciary duty requirements, pension or employee benefit laws, usury laws, environmental laws, margin regulations, FINRA rules or stock exchange rules (without limiting other laws excluded by customary practice).
With your consent, we have assumed (a) that the Indenture, the Guarantee and the Additional Notes (collectively, the “Documents”) will be governed by the internal laws of the State of New York, (b) have been duly authorized, executed and delivered by the parties thereto, (c) that the Documents constitute legally valid and binding obligations of the parties thereto other than the Operating Partnership and the Guarantor, enforceable against each of them in accordance with their respective terms, and (d) that the status of the Documents as legally valid and binding obligations of the parties is not affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders or (iii) failures to obtain required consents, approvals or authorizations from, or make required registrations, declarations or filings with, governmental authorities.
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Guarantor’s and the Operating Partnership’s Current Report on Form 8-K, dated December 6, 2022, and to the reference to our firm contained in the Prospectus under the heading “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| Sincerely, |
| /s/ Latham & Watkins LLP |