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Fourth Amended And Restated Agreement of Limited Partnership

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Exhibit 10.1


FOURTH 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 20

ARTICLE 2.

ORGANIZATIONAL MATTERS 20

Section 2.1 Organization 20

Section 2.2 Name 20

Section 2.3 Registered Office and Agent; Principal Office 21

Section 2.4 Power of Attorney 21

Section 2.5 Term 22

ARTICLE 3.

PURPOSE 22

Section 3.1 Purpose and Business 22

Section 3.2 Powers 23

Section 3.3 Partnership Only for Purposes Specified 23

Section 3.4 Representations and Warranties by the Parties 23

Section 3.5 Certain ERISA Matters 25

ARTICLE 4.

CAPITAL CONTRIBUTIONS 26

Section 4.1 Capital Contributions of the Partners 26

Section 4.2 Loans by Third Parties 26

Section 4.3 Additional Funding and Capital Contributions 26

Section 4.4 Other Contribution Provisions 29

Section 4.5 Profit Interest Units 29

Section 4.6 No Preemptive Rights 32

ARTICLE 5.

DISTRIBUTIONS 32

Section 5.1 Requirement and Characterization of Distributions 32

Section 5.2 Distributions in Kind 32

Section 5.3 Distributions Upon Liquidation 33

Section 5.4 Distributions to Reflect Issuance of Additional Partnership Interests 33

ARTICLE 6.

ALLOCATIONS 33

Section 6.1 Timing and Amount of Allocations of Net Income and Net Loss 33

Section 6.2 General Allocations 33

Section 6.3 Additional Allocation Provisions 36 Section 6.4 Tax Allocations 38

ARTICLE 7.

MANAGEMENT AND OPERATIONS OF BUSINESS 39

Section 7.1 Management 39

Section 7.2 Certificate of Limited Partnership 43 Section 7.3 Restrictions on General Partner' s Authority 43


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Section 7.4

Reimbursement of the General Partner 44

Section 7.5 Outside Activities of the General Partner 46

Section 7.6 Contracts with Affiliates 47

Section 7.7 Indemnification 47

Section 7.8 Liability of the General Partner 50

Section 7.9 Other Matters Concerning the General Partner 50

Section 7.10 Title to Partnership Assets 51

Section 7.11 Reliance by Third Parties 51

ARTICLE 8.

RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS 52

Section 8.1 Limitation of Liability 52

Section 8.2 Management of Business 52

Section 8.3 Outside Activities of Limited Partners 52

Section 8.4 Return of Capital 53

Section 8.5 Rights of Limited Partners Relating to the Partnership 53

Section 8.6 Limited Partner Redemption Rights 54

Section 8.7 Conversion of Profits Interest Units 61

Section 8.8 Voting Rights of Profits Interest Units 64

ARTICLE 9.

BOOKS, RECORDS, ACCOUNTING AND REPORTS 64

Section 9.1 Records and Accounting 64

Section 9.2 Fiscal Year 64

Section 9.3 Reports 65

Section 9.4 Nondisclosure of Certain Information 65

ARTICLE 10.

TAX MATTERS 65

Section 10.1 Preparation of Tax Returns 65

Section 10.2 Tax Elections 65

Section 10.3 Tax Matters Partner 66

Section 10.4 Organizational Expenses 67

Section 10.5 Withholding 67

ARTICLE 11.

TRANSFERS AND WITHDRAWALS 68

Section 11.1 Transfer 68

Section 11.2 Transfer of General Partner' s Partnership Interest 68

Section 11.3 Limited Partners' Rights to Transfer 69

Section 11.4 Substituted Limited Partners 71

Section 11.5 Assignees 71

Section 11.6 General Provisions 72

ARTICLE 12.

ADMISSION OF PARTNERS 74

Section 12.1 Admission of Successor General Partner 74

Section 12.2 Admission of Additional Limited Partners 74

Section 12.3 Amendment of Agreement and Certificate of Limited Partnership 75


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ARTICLE 13.

DISSOLUTION AND LIQUIDATION 75

Section 13.1 Dissolution 75

Section 13.2 Winding Up 76

Section 13.3 Capital Contribution Obligation 77

Section 13.4 Compliance with Timing Requirements of Regulations 77

Section 13.5 Deemed Distribution and Recontribution 78

Section 13.6 Rights of Limited Partners 78

Section 13.7 Notice of Dissolution 78

Section 13.8 Cancellation of Certificate of Limited Partnership 78

Section 13.9 Reasonable Time for Winding-Up 78

Section 13.10 Waiver of Partition 79

ARTICLE 14.

AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS 79

Section 14.1 Amendments 79

Section 14.2 Action by the Partners 79

ARTICLE 15.

GENERAL PROVISIONS 80

Section 15.1 Addresses and Notice 80

Section 15.2 Titles and Captions 80

Section 15.3 Pronouns and Plurals 80

Section 15.4 Further Action 80

Section 15.5 Binding Effect 81

Section 15.6 Creditors 81

Section 15.7 Waiver 81

Section 15.8 Counterparts 81

Section 15.9 Applicable Law 81

Section 15.10 Invalidity of Provisions 81

Section 15.11 Entire Agreement 81

Section 15.12 No Rights as Stockholders 81

ARTICLE 16.

SERIES A PREFERRED UNITS 82

Section 16.1 Designation and Number 82

Section 16.2 Distributions 82

Section 16.3 Liquidation Proceeds 83

Section 16.4 Redemption 84

Section 16.5 Ranking 85

Section 16.6 Voting Rights 85

Section 16.7 Transfer Restrictions 85

Section 16.8 No Conversion Rights 85

Section 16.9 No Sinking Fund 85

ARTICLE 17.

SERIES B PREFERRED UNITS 86

Section 17.1 Designation and Number 86

Section 17.2 Distributions 86

Section 17.3 Liquidation Proceeds 87

Section 17.4 Redemption 88

Section 17.5 Ranking 89


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Section 17.6 Voting Rights 89

Section 17.7 Transfer Restrictions 89

Section 17.8 No Conversion Rights 89

Section 17.9 No Sinking Fund 89

ARTICLE 18.

CLASS C PROFITS INTEREST UNITS 90

Section 18.1 Designation and Number 90

Section 18.2 Terms of Class C Units 90


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FOURTH AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

OF DIGITAL REALTY TRUST, L.P.

THIS FOURTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of Digital Realty Trust, L.P., dated as of October 26, 2005, 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 Third Amended and Restated Agreement of Limited Partnership of Digital Realty Trust, L.P., dated as of July 26, 2005 (the " Third Amended and Restated Partnership Agreement" );


WHEREAS, pursuant to Section 7.3C(2), the Third 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, 4.5, 5.4 and 6.2.B and to set forth the designations, rights, powers, duties and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4; 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 Third Amended and Restated Partnership Agreement as set forth herein.


NOW, THEREFORE, pursuant to Sections 2.4 and 7.3C(2) of the Third 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 Third 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."

" 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.

" 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 Fourth Amended and Restated Agreement of Limited Partnership, as it may be amended, modified, supplemented or restated from time to time.


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" 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,


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,

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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.

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.


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(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) 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) or Section 1.704-2.

" 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.

" 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.


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" Class C Units Change in Control" means, with respect to the Class C Units issued to a Partner, a " Change in Control" as defined in that Partner' s Class C Units Agreement.

" Class C Units Change in Control Date" means, with respect to the Class C Units issued to a Partner, the " Change in Control Date" as defined in that Partner' s Class C Unit Agreement.


" Class C Units Measurement Date" means, with respect to the Class C Units issued to a Partner, the " Measurement Date" as defined in that Partner' s Class C Units Agreement.

" Class C Units Performance Condition" means, with respect to the Class C Units issued to a Partner, the Performance Condition as defined in that Partner' s Class C Units Agreement.

" Class C Service Condition Unit" means, with respect to the Class C Units issued to a Partner, a Service Condition Unit as defined in that Partner' s Class C Units Agreement.


" 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-Equivalent Units" means Partnership Units that are either Common Units or Profits Interest Units.

" 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.


" Consent" means the consent to, approval of, or vote on a proposed action by a Partner given in accordance with Article 14 .


" 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.


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" 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 or other performance of obligations 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.


" 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.


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" 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.


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