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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 3/16/23 Digital Realty Trust, Inc. 8-K:8,9 3/16/23 14:342K Donnelley … Solutions/FA Digital Realty Trust, L.P. |
Document/Exhibit Description Pages Size 1: 8-K Current Report HTML 44K 2: EX-1.1 Underwriting Agreement or Conflict Minerals Report HTML 84K 3: EX-5.1 Opinion of Counsel re: Legality HTML 17K 9: R1 Cover Page HTML 59K 12: XML IDEA XML File -- Filing Summary XML 13K 10: XML XBRL Instance -- d447587d8k_htm XML 26K 11: EXCEL IDEA Workbook of Financial Reports XLSX 8K 5: EX-101.CAL XBRL Calculations -- dlr-20230316_cal XML 7K 6: EX-101.DEF XBRL Definitions -- dlr-20230316_def XML 47K 7: EX-101.LAB XBRL Labels -- dlr-20230316_lab XML 76K 8: EX-101.PRE XBRL Presentations -- dlr-20230316_pre XML 46K 4: EX-101.SCH XBRL Schema -- dlr-20230316 XSD 20K 13: JSON XBRL Instance as JSON Data -- MetaLinks 16± 24K 14: ZIP XBRL Zipped Folder -- 0001193125-23-072616-xbrl Zip 33K
EX-1.1 |
Exhibit 1.1
DIGITAL REALTY TRUST, INC.
Amendment No. 1 to ATM Equity OfferingSM Sales Agreement
BofA Securities, Inc. One Bryant Park |
Mizuho Securities USA LLC 1271 Avenue of the Americas | |
BMO Capital Markets Corp. 151 West 42nd Street, 32nd Floor |
Morgan Stanley & Co. LLC 1585 Broadway | |
Barclays Capital Inc. 745 Seventh Avenue |
MUFG Securities Americas Inc. 1221 Avenue of the Americas | |
BTIG, LLC 600 Montgomery Street |
Raymond James & Associates, Inc. 880 Carillon Parkway | |
Capital One Securities, Inc. 201 St. Charles Avenue, Suite 1830 |
RBC Capital Markets, LLC 200 Vesey Street 3 World Financial Center | |
Citigroup Global Markets Inc. 390 Greenwich Street |
Scotia Capital (USA) Inc. 250 Vesey Street | |
Credit Suisse Securities (USA) LLC Eleven Madison Avenue |
TD Securities (USA) LLC 1 Vanderbilt Avenue | |
Deutsche Bank Securities Inc. One Columbus Circle |
Truist Securities, Inc. 3333 Peachtree Road | |
ING Financial Markets LLC 1133 Avenue of the Americas |
Wells Fargo Securities, LLC 500 West 33rd Street | |
Jefferies LLC 520 Madison Avenue |
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J.P. Morgan Securities LLC 383 Madison Avenue |
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KeyBanc Capital Markets Inc. 127 Public Square, 4th Floor |
As Agents and Forward Sellers
Bank of America, N.A. One Bryant Park |
Mizuho Markets Americas LLC 1271 Avenue of the Americas | |
Barclays Bank PLC c/o Barclays Capital Inc. 745 Seventh Avenue |
Morgan Stanley & Co. LLC 1585 Broadway | |
Bank of Montreal 55 Bloor Street West, 18th Floor Toronto, Ontario M4W 1A5 Canada |
MUFG Securities EMEA plc c/o MUFG Securities Americas Inc. 1221 Avenue of the Americas | |
Citibank, N.A. c/o Citigroup Global Markets Inc. 390 Greenwich Street |
Royal Bank of Canada c/o RBC Capital Markets, LLC 200 Vesey Street 3 World Financial Center | |
Credit Suisse Capital LLC c/o Credit Suisse Securities (USA) LLC Eleven Madison Avenue |
The Bank of Nova Scotia c/o Scotia Capital (USA) Inc. 250 Vesey Street | |
Deutsche Bank AG, London Branch c/o Deutsche Bank Securities Inc. One Columbus Circle |
The Toronto-Dominion Bank c/o TD Securities (USA) LLC, as Agent 1 Vanderbilt Avenue | |
Jefferies LLC 520 Madison Avanue |
Truist Bank 3333 Peachtree Road NE, 11th Floor | |
JPMorgan Chase Bank, National Association, New York Branch 383 Madison Avenue |
Wells Fargo Bank, National Association c/o Wells Fargo Securities, LLC 500 West 33rd Street | |
KeyBanc Capital Markets Inc. 127 Public Square, 4th Floor |
As Forward Purchasers
Ladies and Gentlemen:
Reference is made to the ATM Equity OfferingSM Sales Agreement dated April 1, 2022 (the “Agreement”) by and among Digital Realty Trust, Inc., a Maryland corporation (the “Company”), Digital Realty Trust, L.P., a Maryland limited partnership (the “Operating Partnership”), and (i) BofA Securities, Inc., BMO Capital Markets Corp., Barclays Capital Inc., BTIG, LLC, Capital One Securities, Inc., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., ING Financial Markets LLC, Jefferies LLC, J.P. Morgan Securities LLC, KeyBanc Capital Markets Inc., Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas Inc., Raymond James & Associates, Inc., RBC Capital Markets, LLC, Scotia Capital (USA) Inc., Truist Securities, Inc., TD Securities (USA) LLC and Wells Fargo Securities, LLC, as sales agent, forward seller and/or principal (in any such capacity, each, an “Agent,” and collectively, the “Agents”) and (ii) Bank of America, N.A., Bank of Montreal, Barclays Bank PLC, Citigroup Global Markets Inc. (in its capacity as an agent and affiliate of Citibank, N.A.), Credit Suisse Capital LLC, Deutsche Bank AG, London Branch, Jefferies LLC, JPMorgan Chase Bank, National Association, New York Branch, KeyBanc Capital Markets Inc., Mizuho Markets Americas LLC, Morgan Stanley & Co. LLC, MUFG Securities EMEA plc, The Bank of Nova Scotia, The Toronto-Dominion Bank, Royal Bank of Canada, Truist Bank and Wells Fargo Bank, National Association (in such capacity,
each, a “Forward Purchaser,” and collectively, the “Forward Purchasers”), pursuant to which the Company may (A) issue, offer and sell Shares from time to time to or through any Agent, acting as sales agent on behalf of the Company and/or acting as principal, and (B) instruct any Agent, acting as forward seller, to offer and sell Shares borrowed by the applicable Forward Purchaser, in each case, on the terms and subject to the conditions set forth in the Agreement, any Confirmation and any Terms Agreement, as applicable.
The parties wish to amend the Agreement through this Amendment No. 1 to ATM Equity OfferingSM Sales Agreement (this “Amendment”) to modify the definition of certain defined terms set forth in the Agreement and used therein and to make certain other changes to the Agreement with effect on and after the date hereof (the “Effective Date”).
1. Definitions. Unless otherwise specified herein, capitalized terms used herein shall have the respective meanings assigned thereto in the Agreement.
2. Representation and Warranty. Each of the Company and the Operating Partnership, jointly and severally, represents and warrants to each Agent and Forward Purchaser that this Amendment has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company and the Operating Partnership.
3. Amendment of the Agreement. The parties agree, from and after the Effective Date, that:
(a) On and after the Effective Date, the references to “Registration Statement” shall refer to the “automatic shelf registration statement” on Form S-3 (File No. 333-270596) filed by the Company with the Commission on March 16, 2023, that became effective upon such filing in accordance with Rule 462(e) of the 1933 Act Regulations, including the exhibits and any schedules thereto, the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B of the 1933 Act Regulations.
(b) On and after the Effective Date, the references to: (i) “Base Prospectus” shall refer to the base prospectus dated March 16, 2023 filed as part of the Registration Statement, in the form first furnished by the Company to the Agents for use in connection with the offering of the Shares, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at the Applicable Time; (ii) “Prospectus Supplement” shall refer to the most recent prospectus supplement relating to the Shares, filed by the Company with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, in the form first furnished by the Company to the Agents for use in connection with the offering of the Shares, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at the Applicable Time; and (iii) “Prospectus” shall refer to the Base Prospectus and the Prospectus Supplement.
(c) The last sentence of Section 1(ii) is hereby amended and restated in its entirety to read as follows:
“There is no franchise, contract or other document of a character required to be described or incorporated by reference in the General Disclosure Package, the Registration Statement or the Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference (A) in the General Disclosure Package and the Prospectus under the heading “Plan of Distribution,” and (B) in the Base Prospectus under the headings “Description of Common Stock,” “Description of Preferred Stock,” “Description of Depositary Shares,” “Description of Warrants,” “Description of Debt Securities and Related Guarantees,” “Restrictions on Ownership and Transfer,” “Description of the Partnership Agreement of Digital Realty Trust, L.P.,” “Material Provisions of Maryland Law and of the Charter and Bylaws of Digital Realty Trust, Inc.,” “United States Federal Income Tax Considerations,” and “Plan of Distribution,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.”
(d) References to Agreement. All references to the Agreement or in any other document executed or delivered in connection therewith shall, from the date hereof, be deemed a reference to the Agreement as amended by this Amendment. Notwithstanding anything to the contrary contained herein, this Amendment shall not have any effect on offerings or sales of Shares prior to the Effective Date or on the terms of the Agreement, and the rights and obligations of the parties thereunder, insofar as they relate to such offerings or sales, including, without limitation, the representations, warranties and agreements (including the indemnification and contribution provisions), as well as the definitions of “Registration Statement,” “Base Prospectus,” “Prospectus Supplement” and “Prospectus,” contained in the Agreement.
4. Applicable Law. This Amendment and any claim, controversy or dispute arising under or related to this Amendment shall be governed by, and construed in accordance with, the laws of the State of New York without regard to its choice of law provisions.
5. Entire Agreement. This Amendment and the Agreement as further amended hereby contain the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. Except as set forth in this Amendment or as further amended hereby, all of the terms of the Agreement shall remain in full force and effect and are hereby confirmed in all respects.
6. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
7. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Amendment by one party to the other may be made by facsimile, electronic mail (including any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[Signature Page Follows]
If the foregoing correctly sets forth the understanding among the Company, the Operating Partnership, the Agents and the Forward Purchasers, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement among the Company, the Operating Partnership, the Agents and the Forward Purchasers.
Very truly yours, | ||||
DIGITAL REALTY TRUST, INC. | ||||
By: | ||||
Name: Matthew R. Mercier | ||||
Title: Chief Financial Officer | ||||
DIGITAL REALTY TRUST, L.P. | ||||
By: | Digital Realty Trust, Inc., its General Partner | |||
By: | ||||
Name: Matthew R. Mercier | ||||
Title: Chief Financial Officer |
Accepted as of the date hereof:
BOFA SECURITIES, INC. | ||
By: | ||
Name: Chris Djoganopoulos | ||
Title: Managing Director | ||
BMO CAPITAL MARKETS CORP. | ||
By: | /s/ Matthew Coley | |
Name: Matthew Coley | ||
Title: Associate Director, Payment & Securities Operations | ||
BARCLAYS CAPITAL INC. | ||
By: | /s/ Warren Fixmer | |
Name: Warren Fixmer | ||
Title: Managing Director | ||
BTIG, LLC | ||
By: | /s/ Stephen Ortiz | |
Name: Stephen Ortiz | ||
Title: Managing Director | ||
CAPITAL ONE SECURITIES, INC. | ||
By: | ||
Name: Gregory T. Horstmen | ||
Title: Managing Director | ||
CITIGROUP GLOBAL MARKETS INC. | ||
By: | /s/ Kase Lawal | |
Name: Kase Lawal | ||
Title: Director | ||
CREDIT SUISSE SECURITIES (USA) LLC | ||
By: | ||
Name: William Raincsuk, Jr. | ||
Title: Managing Director | ||
DEUTSCHE BANK SECURITIES INC. | ||
By: | /s/ Daniel Byun | |
Name: Daniel Byun | ||
Title: Director | ||
By: | /s/ Kristen Pugno | |
Name: Kristen Pugno | ||
Title: Director |
ING FINANCIAL MARKETS LLC | ||
By: | /s/ Tim Casady | |
Name: Tim Casady | ||
Title: Director | ||
By: | /s/ Kevin Riordan | |
Name: Kevin Riordan | ||
Title: Director | ||
JEFFERIES LLC | ||
By: | /s/ Tim Roepke | |
Name: Tim Roepke | ||
Title: Managing Director | ||
J.P. MORGAN SECURITIES LLC | ||
By: | /s/ Brett Chalmers | |
Name: Brett Chalmers | ||
Title: Executive Director | ||
KEYBANC CAPITAL MARKETS INC. | ||
By: | /s/ Mark Barath | |
Name: Mark Barath | ||
Title: Director, Equity Capital Markets | ||
MIZUHO SECURITIES USA LLC | ||
By: | ||
Name: Ivana Rupcic-Hulin | ||
Title: Managing Director | ||
MORGAN STANLEY & CO. LLC | ||
By: | /s/ Namrta Bhurjee | |
Name: Namrta Bhurjee | ||
Title: Vice President | ||
MUFG SECURITIES AMERICAS INC. | ||
By: | /s/ Dev Gandhi | |
Name: Dev Gandhi | ||
Title: Managing Director | ||
RAYMOND JAMES & ASSOCIATES, INC. | ||
By: | /s/ Brad Butcher | |
Name: Brad Butcher | ||
Title: Co-Head of Real Estate Investment Banking | ||
RBC CAPITAL MARKETS, LLC | ||
By: | /s/ Chip Wadsworth | |
Name: Chip Wadsworth | ||
Title: Managing Director |
SCOTIA CAPITAL (USA) INC. | ||
By: | /s/ John Cronin | |
Name: John Cronin | ||
Title: Managing Director | ||
TRUIST SECURITIES, INC. | ||
By: | /s/ Geoffrey Fennel | |
Name: Geoffrey Fennel | ||
Title: Director | ||
TD SECURITIES (USA) LLC | ||
By: | /s/ Brad Limpert | |
Name: Brad Limpert | ||
Title: Managing Director | ||
WELLS FARGO SECURITIES, LLC | ||
By: | ||
Name: Elizabeth Alvarez | ||
Title: Managing Director |
Accepted as of the date hereof: | ||
BANK OF AMERICA, N.A. | ||
By: | /s/ Rohan Handa | |
Name: Rohan Handa | ||
Title: Managing Director | ||
BANK OF MONTREAL | ||
By: | /s/ Pashmin Sethi | |
Name: Pashmin Sethi | ||
Title: Manager | ||
BARCLAYS BANK PLC | ||
By: | /s/ Warren Fixmer | |
Name: Warren Fixmer | ||
Title: Managing Director | ||
CITIBANK, N.A. | ||
By: | /s/ James Heathcote | |
Name: James Healthcote | ||
Title: Authorized Signatory | ||
CREDIT SUISSE CAPITAL LLC | ||
By: | ||
Name: William L. Raincsuk, Jr. | ||
Title: Managing Director | ||
DEUTSCHE BANK AG, LONDON BRANCH | ||
By: | /s/ Joachim Sciard | |
Name: Joachim Sciard | ||
Title: Managing Director | ||
By: | /s/ Daniel Byun | |
Name: Daniel Byun | ||
Title: Director | ||
JEFFERIES LLC | ||
By: | /s/ Tim Roepke | |
Name: Tim Roepke | ||
Title: Managing Director |
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, NEW YORK BRANCH | ||||
By: | /s/ Brett Chalmers | |||
Name: | Brett Chalmers | |||
Title: | Executive Director | |||
KEYBANC CAPITAL MARKETS INC. | ||||
By: | /s/ Mark Barath | |||
Name: | Mark Barath | |||
Title: | Director, Equity Capital Markets | |||
MIZUHO MARKETS AMERICAS LLC | ||||
By: | /s/ Adam Hopkins | |||
Name: | Adam Hopkins | |||
Title: | Managing Director | |||
MORGAN STANLEY & CO. LLC | ||||
By: | /s/ Namrta Bhurjee | |||
Name: | Namrta Bhurjee | |||
Title: | Vice President | |||
MUFG SECURITIES EMEA PLC | ||||
By: | /s/ Catherine Lucas | |||
Name: | Catherine Lucas | |||
Title: | Authorised Signatory | |||
THE BANK OF NOVA SCOTIA | ||||
By: | /s/ Michael Curran | |||
Name: | Michael Curran | |||
Title: | Managing Director | |||
THE TORONTO-DOMINION BANK | ||||
By: | ||||
Name: | Vanessa Simonetti | |||
Title: | Managing Director | |||
ROYAL BANK OF CANADA | ||||
By: | /s/ Brian Ward | |||
Name: | Brian Ward | |||
Title: | Managing Director | |||
TRUIST BANK | ||||
By: | /s/ Michael Collins | |||
Name: | Michael Collins | |||
Title: | Managing Director |
WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
By: | ||
Name: Elizabeth Alvarez | ||
Title: Managing Director |
This ‘8-K’ Filing | Date | Other Filings | ||
---|---|---|---|---|
Filed on / For Period end: | 3/16/23 | 424B5, S-3ASR | ||
4/1/22 | 4, 424B5, 8-K | |||
List all Filings |
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 8/04/23 Digital Realty Trust, Inc. 424B5 2:864K Donnelley … Solutions/FA |