ADC Agree Realty Corporation

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of report (Date of earliest event reported): May 13, 2024

 

AGREE REALTY CORPORATION

(Exact name of registrant as specified in its charter)

 

Maryland

(State or other jurisdiction of incorporation)

 

1-12928 (Commission file number)	38-3148187 (I.R.S. Employer Identification No.)
32301 Woodward Avenue Royal Oak, MI (Address of principal executive offices)	48073 (Zip code)

 

(Registrant’s telephone number, including area code) (248) 737-4190

 

Not applicable

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨	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))

 

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

 

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, $0.0001 par value	ADC	New York Stock Exchange
Depositary Shares, each representing one-thousandth of a share of 4.25% Series A Cumulative Redeemable Preferred Stock, $0.0001 par value	ADCPrA	New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

The information set forth in Item 2.03 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 1.01.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

On May 13, 2024, Agree Limited Partnership (the “Issuer”), a Delaware limited partnership and subsidiary of Agree Realty Corporation, a Maryland corporation (the “Parent Guarantor”), completed an underwritten public offering of $450 million in aggregate principal amount of its 5.625% Notes due 2034 (the “Notes”).

 

The Notes are fully and unconditionally guaranteed (the “Guarantee”) by the Parent Guarantor and certain wholly owned subsidiaries of the Issuer that guarantee the Issuer’s debt or the debt of any other guarantor (the “Subsidiary Guarantors” and, together with the Parent Guarantor, the “Guarantors”). The terms of the Notes are governed by an indenture, dated as of August 17, 2020 (the “Base Indenture”), by and among the Issuer, the Parent Guarantor and U.S. Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association, as trustee (the “Trustee”), as amended and supplemented by an officer’s certificate, dated as of May 13, 2024, by and among the Issuer, the Parent Guarantor and the Trustee (the “Indenture Officer’s Certificate” and, together with the Base Indenture, the “Indenture”). The Indenture contains various restrictive covenants, including limitations on the ability of the Guarantors and the Issuer to incur additional indebtedness and requirements to maintain a pool of unencumbered assets. Copies of the Base Indenture, the Indenture Officer’s Certificate, the form of Note, and the form of Guarantee, the terms of which are hereby incorporated herein by reference, are filed or incorporated by reference as Exhibits 4.1, 4.2, 4.3, and 4.4, respectively, to this Current Report on Form 8-K (this “8-K”).

 

Pursuant to the Underwriting Agreement among the Issuer, the Guarantors and the underwriters named therein (the “Underwriters”) filed as Exhibit 1.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “Commission”) on May 8, 2024, the purchase price paid by the underwriters for the Notes was 98.177% of the principal amount thereof. The Notes are the Issuer’s senior unsecured obligations and rank equally in right of payment with all of the Issuer’s other existing and future senior unsecured indebtedness, including the Issuer’s 2.000% Notes due 2028, the Issuer’s 2.900% Notes due 2030, the Issuer’s 4.800% Notes due 2032 and the Issuer’s 2.600% Notes due 2033. The Notes are effectively subordinated in right of payment to: (i) all of the Issuer’s and any Guarantor’s existing and future mortgage indebtedness and other secured indebtedness (to the extent of the value of the collateral securing such indebtedness); (ii) all existing and future indebtedness and other liabilities, whether secured or unsecured of the Issuer’s subsidiaries that are not Subsidiary Guarantors and of any entity accounted for under the equity method of accounting; and (iii) all preferred equity not owned by the Issuer, if any, in its subsidiaries that are not Subsidiary Guarantors and in any entity accounted for under the equity method of accounting. The Notes bear interest at 5.625% per annum. Interest is payable on June 15 and December 15 of each year, beginning December 15, 2024, until the Notes’ maturity date of June 15, 2034.

 

 

Prior to March 15, 2034, the Notes will be redeemable in whole at any time or in part from time to time, at the Issuer’s option, at a redemption price equal to the greater of:

 

·

an amount equal to 100% of the principal amount of the Notes to be redeemed; and

·

a make-whole premium as defined in and calculated in accordance with the Indenture;

 

plus accrued and unpaid interest, if any, to but excluding the redemption date.

 

Notwithstanding the foregoing, if any of the Notes are redeemed on or after March 15, 2034 (three months prior to the maturity date of the Notes), the redemption price will equal 100% of the principal amount of such series of Notes to be redeemed plus accrued and unpaid interest, if any, up to, but not including, the redemption date.

 

Certain events are considered events of default, which may result in the accelerated maturity of the Notes, including:

 

·

default for 30 days in the payment of any installment of interest under the Notes;

·

default in the payment of the principal amount or premium, if any, due with respect to the Notes, when the same becomes due and payable;

	·	failure by the Issuer or any Guarantor to comply with any of the Issuer’s or any Guarantor’s respective other agreements in the Notes or the Indenture with respect to the Notes upon receipt by the Issuer of notice of such default by the Trustee or by holders of not less than 25% in aggregate outstanding principal amount of the Notes then outstanding and the Issuer’s failure to cure (or obtain a waiver of) such default within 60 days after the Issuer receives such notice;
	·	failure to pay any debt (other than non-recourse debt) (a) of the Issuer, the Parent Guarantor or any Material Subsidiary (as defined in the Indenture) or any entity of which the Issuer is the general partner or managing member, and (b) in an outstanding principal amount in excess of $50,000,000 at final maturity or upon acceleration after the expiration of any applicable grace period, which debt is not discharged, or such default in payment or acceleration is not cured or rescinded, within 60 days after written notice to the Issuer from the Trustee (or to the Issuer and the Trustee from holders of at least 25% in outstanding principal amount of the Notes);

·

certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of the Issuer, the Parent Guarantor or any Material Subsidiary or all or substantially all of their respective property; and

·

the Guarantees of any Guarantor is not (or is claimed by any Guarantor in writing to the Trustee not to be) in full force and effect (other than in accordance with the terms of the Indenture) with respect to the Notes.

 

The description of the Indenture in this 8-K is a summary and is qualified in its entirety by the terms of the Indenture.

 

Item 8.01  Other Events.

 

The offering closed on May 13, 2024 and resulted in net proceeds to the Parent Guarantor of approximately $440.8 million, after deducting the underwriting discount and the estimated offering expenses payable by the Issuer. The Notes were offered pursuant to (i) the shelf registration statement on Form S-3 (File No. 333-271668) which became effective upon filing with the Securities and Exchange Commission (the “Commission”) on May 5, 2023, as amended by post-effective amendment no. 1 filed with the Commission on May 6, 2024, (ii) the base prospectus dated May 5, 2023 and (iii) the prospectus supplement dated May 6, 2024, which was filed with the Commission pursuant to Rule 424(b) under the Securities Act of 1933, as amended. In connection with the filing of the prospectus supplement, an opinion of the Issuer’s and Guarantors’ counsel regarding the validity of the Notes and related Guarantee is filed with this 8-K as Exhibit 5.1, an opinion of Parent Guarantor’s counsel regarding certain Maryland law issues is filed with this 8-K as Exhibit 5.2.

 

 

Item 9.01. Financial Statements and Exhibits.

 

(d)        Exhibits

 

Exhibit Description

 

4.1	Indenture, dated as of August 17, 2020, among the Issuer, the Parent Guarantor and the Trustee (incorporated by reference to Exhibit 4.1 to Agree Realty Corporation’s Current Report on Form 8-K filed on August 17, 2020).

4.2	Indenture Officer’s Certificate, dated as of May 13, 2024, among the Issuer, the Parent Guarantor and the Trustee.

4.3	Form of Global Note for 5.625% Notes due 2034 (included in Exhibit 4.2).

4.4	Form of 2034 Guarantee by and among the Issuer, the Guarantors and the Trustee (included in Exhibit 4.2)

5.1	Opinion of Honigman LLP as to the validity of the Notes and the Guarantees.

5.2	Opinion of Ballard Spahr LLP regarding Maryland law issues.
5.3	Opinion of Burr & Forman LLP, regarding Florida and North Carolina law issues.
5.4	Opinion of Porter Hedges LLP, regarding Texas law issues.

23.1	Consent of Honigman LLP (included in Exhibit 5.1).

23.2	Consent of Ballard Spahr LLP (included in Exhibit 5.2).

104	Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	AGREE REALTY CORPORATION
Date: May 13, 2024	By:	/s/ Peter Coughenour
		Peter Coughenour
		Chief Financial Officer and Secretary

 

 

 

Exhibit 4.2

 

AGREE REALTY CORPORATION

OFFICER’S CERTIFICATE

 

May 13, 2024

 

The undersigned, Joel N. Agree, President and Chief Executive Officer of AGREE REALTY CORPORATION (the “General Partner”), a Maryland corporation operating as a real estate investment trust, hereby certifies, on behalf of the General Partner in its own capacity and as sole general partner of AGREE LIMITED PARTNERSHIP, a Delaware limited partnership (the “Company”), pursuant to Sections 2.1, 2.2 and 11.5 of the Indenture, dated as of August 17, 2020 (the “Base Indenture”), by and among the Company, the General Partner, as a guarantor, U.S. Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association, as trustee and the other parties thereto, as follows:

 

1.

The undersigned has read Sections 2.1 and 2.2 of the Base Indenture and such other sections of the Base Indenture and other documents and has made such other inquiries as he has deemed necessary to express an informed opinion as to whether or not the covenants and conditions precedent provided for in the Base Indenture relating to the issuance of the Company’s 5.625% Notes due 2034 (the “Notes”) have been complied with.

 

2.

In the opinion of the undersigned, the covenants and conditions precedent provided for in the Base Indenture relating to the issuance of the Notes have been complied with.

 

3.

The form of the Notes and the guarantee of the Notes by the General Partner, the Subsidiary Guarantors and any future guarantor, and the terms of the Notes, as set forth in Exhibit A-1, attached to Annex A hereto have been duly established pursuant to Sections 2.1 and 2.2 of the Base Indenture and comply with the Base Indenture, and this Officer’s Certificate is delivered in accordance with Sections 2.3 and 11.4 of the Base Indenture and complies with the requirements of such Sections.

 

[SIGNATURE ON FOLLOWING PAGE]

 

 

IN WITNESS WHEREOF, the undersigned has caused this certificate to be duly executed as of the date first set forth above.

 

	AGREE LIMITED PARTNERSHIP,
	a Delaware limited partnership
	By:	AGREE REALTY CORPORATION,
		Its sole general partner
	By:	/s/ Joel N. Agree
		Name:	Joel N. Agree
		Its:	President and Chief Executive Officer
	AGREE REALTY CORPORATION,
	a Maryland corporation
	By:	/s/ Joel N. Agree
		Name:	Joel N. Agree
		Its:	President and Chief Executive Officer

 

[Signature page to Officer’s Certificate to Indenture]

 

 

ANNEX A

 

Pursuant to Sections 2.1 and 2.2 of the Indenture, dated as of August 17, 2020 (the “Base Indenture”), among AGREE LIMITED PARTNERSHIP, a Delaware limited partnership (the “Company”), AGREE REALTY CORPORATION, a Maryland corporation operating as a real estate investment trust, (the “General Partner”), as a guarantor, and U.S. Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association, as trustee (the “Trustee”), the terms of the Company’s 5.625% Notes due 2034 (the “Notes”) to be issued pursuant to the Base Indenture are as set forth below. The Base Indenture together with, and as amended and supplemented by, the Officer’s Certificate (the “Series Officer’s Certificate”), dated as of May 13, 2024, establishing the terms of the Notes and of which this Annex A forms a part, is referred to herein as the “Indenture”. Certain defined terms are set forth in paragraph 17 hereof. Capitalized terms used but not otherwise defined in this Series Officer’s Certificate shall have the respective meanings assigned to them in the Base Indenture.

 

1.    Title. The series of Securities is hereby established under the Base Indenture and shall be known and designated as the “5.625% Notes due 2034.”

 

2.    Aggregate Principal Amount. The Notes shall be limited in initial aggregate principal amount to $450,000,000, except, for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 2.7, 2.8, 2.11, 3.6 or 9.6 of the Base Indenture. The Company may in the future, without the consent of Holders, issue additional Notes (“Additional Notes”) on the identical terms as the Notes of the series being offered hereby other than with respect to the date of issuance, issue price and date of first payment of interest thereon. The Notes and any Additional Notes subsequently issued under the Indenture would be treated as a single series with the Notes established hereunder for all purposes under the Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase; provided, however, that if such Additional Notes will not be fungible with the previously outstanding Notes for U.S. federal income tax purposes, such Additional Notes will have a separate CUSIP number.

 

3.    Issue Price. The Notes will be issued at a price equal to 98.827% of the principal amount thereof.

 

4.    Maturity. The date on which the principal of the Notes is payable is June 15, 2034 (the “Stated Maturity Date”).

 

5.    Rate of Interest; Interest Payment Date; Regular Record Dates. The Notes shall bear interest at the rate of 5.625% per year. Interest on the outstanding principal amount of the Notes shall accrue from May 13, 2024, and will be payable semi-annually in arrears on June 15 and December 15 of each year (each such date, an “Interest Payment Date”), commencing on December 15, 2024, to the persons in whose names the Notes are registered in the security register at the close of business on the immediately preceding June 1 or December 1, as the case may be (a “Regular Record Date”). Interest on the Notes shall accrue from and including the immediately preceding Interest Payment Date in respect of which interest has been paid or duly made available for payment (or from and including the date of issue, if no interest has been paid or duly made available for payment with respect to the Notes) to, but excluding the applicable Interest Payment Date, the Stated Maturity Date or date of earlier redemption (the Stated Maturity Date, the date of acceleration, or the date of earlier redemption referred to collectively herein as the “Maturity Date”), as the case may be. Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. If any Interest Payment Date or the Maturity Date falls on a day that is not a Business Day, the required payment will be made on the next Business Day as if made on the date such payment was due, and no interest will accrue on such payment for the period from and after such Interest Payment Date or the Maturity Date, as the case may be, to the date of such payment until the next Business Day.

 

 

6.    Place of Payment. Payments of principal, premium, if any, and interest, on the Notes shall be payable, at the Corporate Trust Office of the Trustee. Payment of principal of, premium, if any, on a definitive Note may be made only against surrender of the Note to the Company’s paying agent. The Company may make interest payments (1) by wire transfer of funds to the person at an account maintained within the United States, or (2) if no wire transfer is provided, the Company may make interest payments by check mailed to the address of the person entitled to the payment as that address appears in the applicable register for those Notes. However, while any Notes are represented by a registered Global Security, payment of principal of, premium, if any, or interest on the Notes may be made by wire transfer to the account of the Depositary or its nominee. Any interest not so punctually paid or duly made available for payment shall be paid in accordance with the form of Note as set forth on Exhibit A-1.

 

7.    No Sinking Fund. The Notes are not mandatorily redeemable and are not entitled to the benefit of a sinking fund or any analogous provisions.

 

8.    Optional Redemption. The Company may redeem all or part of the series of Notes at any time at its option as set forth in the applicable form of Note as set forth on Exhibit A-1 and in Article III of the Base Indenture.

 

9.    Registered Securities. The Notes shall be issued only as registered Securities, in minimum denominations of $2,000 and integral multiples of $1,000. The Notes shall be issuable as registered Global Securities in book-entry form.

 

10.    Registrar; Paying Agent; Depositary. The Trustee shall initially serve as the registrar and the paying agent for the Notes. The Depository Trust Company shall initially serve as the Depositary for the registered Global Security representing the Notes.

 

11.    Amount Payable Upon Acceleration. 100% of the principal of and accrued interest, if any, on the Notes shall be payable upon declaration of acceleration pursuant to Section 6.1 of the Indenture.

 

12.    Ranking Security. The Notes are senior unsecured obligations of the Company and rank equally with other senior unsecured indebtedness of the Company that is not subordinated to the Notes, including the Company’s 2.900% Senior Notes due 2030, 2.000% Senior Notes due 2028, 2.600% Senior Notes due 2033 and 4.800% Senior Notes due 2032 (collectively, the “Existing Notes”).

 

13.    Payment Currency-Election. The principal of, premium, if any, and interest on the Notes shall not be payable in a currency other than Dollars.

 

14.    Payment Currency-Index. The principal of, premium, if any, and interest on the Notes shall not be determined with reference to an index based on a coin or currency.

 

15.    Notes in Definitive Form. Section 2.14 of the Base Indenture will govern the transferability of the Notes in definitive form.

 

 

16.    Events of Default. There shall be no deletions from, modifications or additions to the Events of Default set forth in Section 6.1 of the Base Indenture, except, with respect to the Notes, clause (g) of Section 6.1 of the Base Indenture shall be deemed deleted in its entirety and the following shall be added as clause (g) of the Base Indenture: “failure to pay any Debt (other than Non-Recourse Debt) (a) of the Company, the General Partner, or any Material Subsidiary or any entity in which we are the general partner or managing member, and (b) in an outstanding principal amount in excess of $50,000,000 at final maturity or upon acceleration after the expiration of any applicable grace period, which Debt is not discharged, or such default in payment or acceleration is not cured or rescinded, within 60 days after written notice to the Company from the Trustee (or to the Company and the Trustee from Holders of at least 25% in principal amount of the outstanding Notes).”

 

17.    Covenants. There shall be the following additions, replacements, amendments and supplements, as the case may be, to the covenants of the Company set forth in Article IV of the Base Indenture solely with respect to the Notes:

 

(a)    Limitation on Incurrence of Total Debt. This paragraph (a) will be an addition to Article IV of the Base Indenture with respect to the Notes. The General Partner will not, and will not permit any of its Subsidiaries to, incur any Debt if, immediately after giving effect to the incurrence of such additional Debt and the application of the proceeds therefrom on a pro forma basis, the aggregate outstanding principal amount of all Debt of the General Partner and its Subsidiaries on a consolidated basis determined in accordance with GAAP is greater than 60% of the sum of (without duplication) (1) the Total Assets of the General Partner as of the end of the latest fiscal quarter covered in the General Partner’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the SEC (or, if such filing is not required under the Exchange Act, furnished to the Trustee) prior to the incurrence of such additional Debt, and (2) the aggregate purchase price of any real estate assets or mortgages receivable acquired, and the aggregate amount of any securities offering proceeds received (to the extent such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), in each case by the General Partner or any of its Subsidiaries since the end of such fiscal quarter, including the proceeds obtained from the incurrence of such additional Debt.

 

(b)    Debt Service Test. This paragraph (b) will be an addition to Article IV of the Base Indenture with respect to the Notes. The General Partner will not, and will not permit any of its Subsidiaries to, incur any Debt if the ratio of Consolidated Income Available for Debt Service to the Annual Service Charge for the four consecutive fiscal quarters most recently ended prior to the date on which such additional Debt is to be incurred is less than 1.5 to 1.0, on a pro forma basis after giving effect to the incurrence of such Debt and the application of the proceeds therefrom, and calculated on the assumptions that: (1) such Debt and any other Debt incurred by the General Partner or its Subsidiaries since the first day of such four-quarter period and the application of the proceeds therefrom (including to refinance other Debt since the first day of such four-quarter period) had occurred as of the first day of such period, (2) the repayment or retirement of any other Debt (other than Debt repaid or retired with the proceeds of any other Debt, which repayment or retirement shall be calculated pursuant to clause (1) and not this clause) by the General Partner or any of its Subsidiaries since the first day of such four-quarter period had been repaid or retired as of the first day of such period (except that, in making such computation, the amount of Debt under any revolving credit facility, line of credit or similar facility shall be computed based upon the average daily balance of such Debt during such period), (3) in the case of Acquired Debt or Debt incurred by the General Partner or any of its Subsidiaries in connection with any acquisition since the first day of such four-quarter period, the related acquisition had occurred as of the first day of such four-quarter period with the appropriate adjustments with respect to such acquisition being included in such pro forma calculation, and (4) in the case of any acquisition or disposition by the General Partner or any of its Subsidiaries of any asset or group of assets since the first day of such four-quarter period, including, without limitation, by merger, stock purchase or sale, or asset purchase or sale, such acquisition or disposition had occurred as of the first day of such period with the appropriate adjustments with respect to such acquisition or disposition and any related repayment of Debt being included in such pro forma calculation. If the Debt giving rise to the need to make the foregoing calculation or any other Debt incurred after the first day of the relevant four-quarter period bears interest at a floating rate (to the extent such Debt has been hedged to bear interest at a fixed rate, only the portion of such Debt, if any, that has not been so hedged), then, for purposes of calculating the Annual Service Charge, the interest rate on such Debt shall be computed on a pro forma basis as if the average interest rate that would have been in effect during the entire such period had been the applicable rate for the entire such period.

 

 

(c)    Maintenance of Total Unencumbered Assets. This paragraph (c) will be an addition to Article IV of the Base Indenture with respect to the Notes. The General Partner and its Subsidiaries will maintain at all times Total Unencumbered Assets of not less than 150% of the aggregate outstanding principal amount of the Unsecured Debt of the General Partner and its Subsidiaries determined on a consolidated basis in accordance with GAAP.

 

(d)    Limitation on Incurrence of Secured Debt. This paragraph (d) will be an addition to Article IV of the Base Indenture with respect to the Notes. The General Partner will not, and will not permit any of its Subsidiaries to, incur any Secured Debt if, immediately after giving effect to the incurrence of such Secured Debt and the application of the proceeds therefrom on a pro forma basis, the aggregate outstanding principal amount of the Secured Debt of the General Partner and its Subsidiaries determined on a consolidated basis in accordance with GAAP is greater than 40% of the sum of (without duplication) (1) the Total Assets of the General Partner and its Subsidiaries as of the end of the latest fiscal quarter covered in the General Partner’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the SEC (or, if such filing is not permitted under the Exchange Act, furnished to the Trustee) prior to the incurrence of such additional Debt, and (2) the aggregate purchase price of any real estate assets or mortgages receivable acquired, and the aggregate amount of any securities offering proceeds received (to the extent such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the General Partner or any of its Subsidiaries since the end of such fiscal quarter, including the proceeds obtained from the incurrence of such additional Debt.

 

For purposes of the covenants described in clauses (a)-(d) Debt shall be deemed to be “incurred” by the General Partner or any of its Subsidiaries whenever the General Partner or such Subsidiary shall create, assume, guarantee or otherwise become liable in respect thereof. Furthermore, nothing in clauses (a)-(d) shall prevent the incurrence of Debt by the General Partner or any of its Subsidiaries between or among the General Partner or any of its Subsidiaries.

 

(e)    Future Subsidiary Guarantors. This paragraph (e) will be an addition to Article IV of the Base Indenture with respect to the Notes. Each Subsidiary of the General Partner that guarantees (now or in the future) other Debt of the Company or of any Guarantor shall immediately be and become, automatically and without the execution or delivery of any instrument or other action by any person, jointly and severally with any other Guarantors of the Notes, a Guarantor of the Notes and shall be subject to and bound by all of the terms and provisions of the Indenture applicable to a Guarantor of the Notes; provided that the General Partner shall cause any such Guarantor to within thirty calendar days (i) execute and deliver to the Trustee a guarantee in the form of guarantee attached to the Notes (the “Guarantee”) to acknowledge such guarantee in accordance with Article X of the Indenture, and (ii) deliver to the Trustee, in addition to any other documents to be delivered to the Trustee pursuant to Section 11.4 of the Indenture, an Officer’s Certificate or Opinion of Counsel to the effect that (x) the execution of such Guarantee is authorized or permitted by the Indenture, and (y) such Guarantee has been duly authorized, executed and delivered by, and is a valid binding obligation of such entity, enforceable against such entity in accordance with its terms, subject to customary exceptions.

 

 

(f)    Maintenance of Properties. This paragraph (f) will be an addition to Article IV of the Base Indenture with respect to the Notes. Each of the General Partner and the Company shall cause its material properties used or useful in the conduct of its business or the business of any Subsidiary of the Company to be maintained and kept in good condition, repair and working order, normal wear and tear, casualty and condemnation excepted, and supplied with all necessary equipment and will require it to cause to be made all necessary repairs, renewals, replacements, betterments and improvements to those properties, as in its judgment may be necessary so that the business carried on in connection with those properties may be properly and advantageously conducted at all times; provided, that the Company and its Subsidiaries shall not be prevented from (1) removing permanently any property that has been condemned or suffered casualty loss, (2) discontinuing any maintenance or operation of any property if, in Company’s reasonable judgment, such removal is not disadvantageous in any material respect to the Holders of the Notes or (3) selling or otherwise disposing of these properties for value in the ordinary course of business.

 

(g)    Payment of Taxes and Other Claims. This paragraph (g) will be an addition to Article IV of the Base Indenture with respect to the Notes. The General Partner and the Company shall pay or discharge (or, if applicable, cause to be transferred to bond or other security) or cause to be paid or discharged, before the same shall become delinquent, all material taxes, assessments and governmental charges levied or imposed on each of the General Partner, the Company and its Subsidiaries or upon the income, profits or property of each of the General Partner, the Company and its Subsidiaries; provided, that General Partner and the Company shall not be required to pay or discharge (or transfer to bond or other security) or cause to be paid or discharged any material tax, assessment or charge, (a) the applicability or validity of which it is contesting in good faith through appropriate proceedings and for which it has established adequate reserves in accordance with GAAP or (b) where the failure to effect such payment is not, in the General Partner or the Company’s reasonable judgment, adverse in any material respect to the Holders of the Notes.

 

(h)    Insurance. This paragraph (h) will be in addition to Article IV of the Base Indenture with respect to the Notes. The General Partner and the Company shall, and shall cause the Subsidiaries to, keep in force upon all of its properties and operations policies of insurance with financially sound and reputable carriers in such amounts and covering all risks as shall be customary in the industry, in accordance with prevailing market conditions and availability.

 

(i)    Certain Definitions. As used herein (and to the extent any such definitions conflict with definitions included in the Base Indenture, the definitions included here shall control with respect to the Notes):

 

“Acquired Debt” means Debt of a person (i) existing at the time such person becomes a Subsidiary or (ii) assumed in connection with the acquisition of assets from such person, in each case, other than Debt incurred in connection with, or in contemplation of, such person becoming a Subsidiary or such acquisition. Acquired Debt shall be deemed to be incurred on the date of the related acquisition of assets from any person or the date the acquired person becomes a Subsidiary.

 

“Annual Service Charge” for any period means, without duplication, amount that is payable for interest expense on, and the amortization during such period of any original issue discount of, the General Partner’s and its Subsidiaries’ Debt in such period.

 

“Consolidated Income Available for Debt Service” for any period means Earnings from Operations of the General Partner and its Subsidiaries plus amounts which have been deducted, and minus amounts which have been added, for the following (without duplication):

 

(1)

interest expense on Debt of the General Partner and its Subsidiaries,

 

 

(2)

provision for taxes of the General Partner and its Subsidiaries based on income,

 

(3)

amortization of debt discount, premium and other deferred financing charges,

 

(4)

provision for gains and losses and depreciation and amortization,

 

(5)

the effect of any noncash charge resulting from a change in accounting principles in determining Earnings from Operations for such period,

 

(6)

gains and losses resulting from the extinguishment of debt, and

 

(7)

all other non-cash charges.

 

“Debt” of the General Partner or any of its Subsidiaries means any indebtedness of the General Partner or any of its Subsidiaries, excluding any accrued expense or trade payable, whether or not contingent, in respect of:

 

(1)

borrowed money evidenced by bonds, notes, debentures or similar instruments,

 

(2)

indebtedness secured by any Lien existing on property owned by the General Partner or any of its Subsidiaries, but only to the extent of the lesser of (x) the amount of indebtedness so secured and (y) the fair market value of the property subject to such Lien existing on property owned by the General Partner or any of its Subsidiaries,

 

(3)

the reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued and called or amounts representing the balance deferred and unpaid of the purchase price of any property or services, or all conditional sale obligations or obligations under any title retention agreement, or

 

(4)

any lease of property by the General Partner or any of its Subsidiaries as lessee that is reflected on the General Partner’s consolidated balance sheet and classified as a finance lease in accordance with GAAP,

 

and to the extent, in the case of items of indebtedness under clauses (1) and (3) immediately above, that any such items (other than letters of credit) would appear as a liability on the General Partner’s consolidated balance sheet in accordance with GAAP, and also includes, to the extent not otherwise included, any obligation by the General Partner or any of its Subsidiaries to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course of business), Debt of another person (other than the General Partner or any of its Subsidiaries); provided, however, that the term “Debt” shall not include Permitted Non-Recourse Guarantees of the General Partner or any of its Subsidiaries until such time as they become primary obligations of, and payments are due and required to be made thereunder by, the General Partner or any of its Subsidiaries.

 

“Earnings from Operations” for any period means net income excluding gains and losses on sales of investments, net, as reflected in the financial statements of the General Partner and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.

 

“Lien” means any mortgage, lien, charge, encumbrance, trust deed, deed of trust, deed to secure debt, security agreement, pledge, security interest, security agreement or other encumbrance of any kind.

 

 

“Non-Recourse Debt” means Debt of a joint venture or Subsidiary of the General Partner (or an entity in which the Company is a general partner or managing member) that is directly or indirectly secured by real estate assets or other real estate-related assets (including Capital Stock) of such joint venture or Subsidiary (or an entity in which the Company is a general partner or managing member that is the borrower) and is non-recourse to the General Partner or any of its Subsidiaries (other than pursuant to a Permitted Non-Recourse Guarantee and other than with respect to the joint venture or Subsidiary of the General Partner (or entity in which the Company is the general partner or managing member that is the borrower)); provided further that, if any such Debt is partially recourse to the General Partner or any of its Subsidiaries (other than pursuant to a Permitted Non-Recourse Guarantee and other than with respect to the joint venture or Subsidiary of the General Partner (or entity in which the Company is the general partner or managing member) that is the borrower) and therefore does not meet the criteria set forth above, only the portion of such Debt that does meet the criteria set forth above shall constitute “Non-Recourse Debt.”

 

“Permitted Non-Recourse Guarantees” means customary completion or budget guarantees, indemnities or other customary guarantees provided to lenders (including by means of separate indemnification agreements, carve-out guarantees or pledges of the equity interests in the borrower ) under such Non-Recourse Debt in the ordinary course of business of the General Partner or any of its Subsidiaries in financing transactions that are directly or indirectly secured by real estate assets or other real estate-related assets (including Capital Stock) of a joint venture or Subsidiary of the General Partner (or an entity in which the Company is the general partner or managing member), in each case that is the borrower in such financing, but is non-recourse to the General Partner or any of its other Subsidiaries, except for such completion or budget guarantees, indemnities or other guarantees (including by means of separate indemnification agreements or carve-out guarantees or pledges of the equity interests in the borrower) as are consistent with customary industry practice (such as environmental indemnities and recourse triggers based on violation of transfer restrictions and other customary exceptions to non-recourse liability).

 

“Secured Debt” means Debt secured by a Lien on any property or assets of the General Partner or any of its Subsidiaries.

 

“Subsidiary Guarantors” means, as of any date, all Subsidiaries of the General Partner, if any, that guarantee the obligations of the Company under the Indenture and the Notes in accordance with the provisions of this Annex A and the Indenture, and “Subsidiary Guarantor” means any one of the Subsidiary Guarantors; provided that upon the release or discharge of such Subsidiary Guarantor from its guarantee in accordance with paragraph 18 of this Annex A and Article X of the Base Indenture, such Subsidiary shall cease to be a Subsidiary Guarantor.

 

“Total Assets” means, as of any date, the sum of (i) Undepreciated Real Estate Assets and (ii) all of the General Partner’s and its Subsidiaries’ other assets, but excluding accounts receivables, right of use assets relating to operating leases and non-real estate intangibles, determined on a consolidated basis in accordance with GAAP.

 

“Total Unencumbered Assets” means the sum of the General Partner’s and its Subsidiaries’ Undepreciated Real Estate Assets and the value determined on a consolidated basis in accordance with GAAP of all of the General Partner’s and its Subsidiaries’ other assets, other than accounts receivables, right of use assets relating to operating leases and non-real estate intangibles, in each case not subject to any Lien of any kind for borrowed money; provided, however, that “Total Unencumbered Assets” does not include investments in unconsolidated joint ventures, unconsolidated limited partnerships, unconsolidated limited liability companies and other unconsolidated entities.

 

 

“Undepreciated Real Estate Assets” as of any date means the cost (original cost plus capital improvements) of real estate assets and related intangibles of the General Partner and its Subsidiaries on such date, before depreciation and amortization charges determined on a consolidated basis in accordance with GAAP.

 

“Unsecured Debt” means Debt of the types described in clauses (1) and (3) of the definition thereof that is not secured by any Lien upon any of the properties of the General Partner or any of its Subsidiaries.

 

18.    Guarantee. The Notes are guaranteed by the Guarantors as provided in Article X of the Indenture. The General Partner and the Subsidiaries listed on Schedule I are hereby designated as “Guarantors” under the Indenture with respect to the Notes on the original issue date. Each other Subsidiary of the General Partner shall become a Guarantor of the Notes as provided in the Indenture and paragraph 17(e) of this Annex A. Each Guarantor’s guarantee of the Notes shall be in the form of the Guarantee, is an unsecured obligation of such Guarantor and ranks equally with other unsecured indebtedness of such Guarantor that is not subordinated to its Guarantee of the Notes. Other than in accordance with Section 10.4 of the Base Indenture, the General Partner shall not be released from its Guarantee of the Notes so long as any Notes of such series remain outstanding.

 

(a)            Any Subsidiary Guarantor shall be automatically and unconditionally released: (i) upon the sale or other disposition (including by way of consolidation or merger), in one transaction or a series of related transactions, of a majority of the total voting power of the Capital Stock or other interests of such Subsidiary Guarantor (other than to the Company or any Affiliate of the Company); or (ii) upon the sale or disposition of all or substantially all the property of such Subsidiary Guarantor (other than to the Company or any Affiliate of the Company); or (iii) if at any time when no Event of Default has occurred and is continuing with respect to the Notes, such Subsidiary Guarantor no longer guarantees (or which guarantee is being simultaneously released or will be immediately released after the release of the Subsidiary Guarantor) any other Debt of the Company or of any Guarantor.

 

(b)            The applicable Guarantees also will be automatically released if the Company exercises its legal defeasance or its covenant defeasance option with respect to the Notes as set forth in Article VIII of the Base Indenture, or if the Company’s obligations under the Base Indenture with respect to the Notes are discharged as set forth in Section 8.4 thereof.

 

19.    Conversion and Exchange. The Notes shall not be convertible into or exchangeable into any other security.

 

20.    Satisfaction and Discharge; Covenant Defeasance. Article VIII of the Base Indenture shall apply to the Notes. In addition to the other sections of the Indenture subject to the covenant defeasance provisions set forth in Article VIII of the Base Indenture, the covenants set forth in paragraph 17 of this Annex A shall be subject to the covenant defeasance provisions set forth in Article VIII of the Base Indenture.

 

21.    Discount Securities. The Notes are not Discount Securities.

 

22.    Modification, Amendment and Waiver. The terms and provisions of the Notes may be modified, amended, supplemented or waived as set forth in the Indenture.

 

23.    Other Terms. The Notes shall have the other terms, and the Notes shall be substantially in the form, set forth in Exhibit A-1. In case of any conflict between this Annex A and the Notes, the form of the Notes shall control. In the case of any conflict between, on the one hand, this Annex A and/or the Notes, and on the other hand, the Base Indenture, this Annex A and/or the Notes shall control.

 

 

Exhibit A-1

 

[FORM OF 2034 NOTE]

 

THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF, WHICH MAY BE TREATED BY THE ISSUER, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITARY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

 

UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

AGREE LIMITED PARTNERSHIP

5.625% Notes due 2034

 

CUSIP No. 008513 AE3

ISIN No. US008513AE31

No. [ ]     $[ ]

 

AGREE LIMITED PARTNERSHIP, a Delaware limited partnership (hereinafter referred to as “Issuer,” which term includes any successor thereof under the Indenture (as defined on the reverse hereof)), for value received, hereby promises to pay to CEDE & CO., or its registered assigns, the principal sum of [__] ($[ ]) on June 15, 2034 (the “Stated Maturity Date” with respect to the principal of this Note), unless previously redeemed on any call for redemption in accordance with the provisions set forth on the reverse hereof (the Stated Maturity Date, the date on which the principal becomes due following acceleration or any call for redemption is referred herein as the “Maturity Date” with respect to principal repayable or repurchased on such date) and to pay interest thereon semi-annually in arrears on June 15 and December 15 of each year (each, an “Interest Payment Date”), commencing on December 15, 2024, at the rate of 5.625% per annum, until payment of said principal has been made or duly provided for. Interest on this Note payable on an Interest Payment Date will accrue from and including the immediately preceding Interest Payment Date in respect of which interest has been paid or duly made available for payment, or from and including May 13, 2024, if no interest has been paid or duly made available for payment, to but excluding the applicable Interest Payment Date or the Maturity Date, as the case may be. Interest on this Note will be computed on the basis of a 360-day year consisting of twelve 30-day months.

 

 

Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to them in the Indenture.

 

The interest so payable and punctually paid or duly made available for payment on any Interest Payment Date will be paid to the Holder in which name this Note is registered in the security register at the close of business on the “Regular Record Date” for such payment, which shall be the June 1 and December 1, as the case may be, immediately preceding such Interest Payment Date (regardless of whether such day is a Business Day (as defined below)). Any such interest not so punctually paid or duly made available for payment shall forthwith cease to be payable to the Holder on such Regular Record Date, and shall be paid to the person in whose name this Note is registered at the close of business on a subsequent special record date for the payment of such defaulted interest (which shall be not more than 5 Business Days prior to the date of the payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the Holders of the Notes not less than 15 calendar days preceding such subsequent special record date, or may be paid at any time in any other lawful manner, all as more fully provided in the Indenture.

 

The principal of, and premium, if any, with respect to, this Note payable on the Maturity Date will be paid against presentation and surrender of this Note at the Corporate Trust Office of the Trustee or other office or agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York. The Issuer hereby initially designates the Corporate Trust Office of the Trustee (as defined on the reverse hereof) as the office to be maintained by it where Notes may be presented for payment, registration of transfer or exchange and where notices or demands to or upon the Issuer in respect of the Notes or the Indenture may be served.

 

If any Interest Payment Date or the Maturity Date falls on a day that is not a Business Day, the payment required to be made on such date will, instead, be made on the next Business Day with the same force and effect as if it were made on the date such payment was due, and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date or the Maturity Date, as the case may be. “Business Day” means, unless otherwise provided by Board Resolution, supplemental indenture to the Indenture or Officer’s Certificate delivered pursuant to Section 2.2 of the Base Indenture, any day except Saturday, Sunday or a legal holiday in The City of New York (or in connection with any payment, the place of payment) on which banking institutions are authorized or required by law, regulation or executive order to close.

 

Payments of principal, premium, if any, and interest in respect of this Note will be made in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts (i) in the case of payments on the Maturity Date, in immediately available funds, and (ii) in the case of payments of interest on an Interest Payment Date other than the Maturity Date, (a) by wire transfer of immediately available funds to an account maintained by the payee with a bank located in the United States of America, or (b) if no wire transfer is provided, by check mailed to the Holder entitled thereto at the applicable address appearing in the security register; provided, however, that so long as Cede & Co. is the Holder of this Note, payments of interest on an Interest Payment Date may be made in immediately available funds.

 

Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

This Note shall not be entitled to the benefits of the Indenture or the Guarantee or be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been executed by manual signature by the Trustee.

 

 

IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed, manually, electronically or by facsimile by an authorized signatory.

 

Date:
	AGREE LIMITED PARTNERSHIP
	By:	AGREE REALTY CORPORATION,
		its sole general partner
	By:
		Name:
		Title:

 

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated herein, referred to in the within-mentioned Indenture.

 

	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
	as Trustee
	By:
		Authorized Signatory

 

 

[FORM OF REVERSE OF 2034 NOTE]

AGREE LIMITED PARTNERSHIP 

 

5.625% Notes due 2034

 

This Note is one of a duly authorized issue of Securities of the Issuer (hereinafter called the “Securities”) of the series hereinafter specified, all issued or to be issued under and pursuant to an Indenture (the “Base Indenture”), dated as of August 17, 2020, duly executed and delivered by the Issuer, AGREE REALTY CORPORATION (the “General Partner”), to U.S. Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association, as trustee (the “Trustee,” which term includes any successor trustee under the Indenture with respect to the series of Securities of which this Note is a part), together with the Officer’s Certificate dated as of May 13, 2024 amending and supplementing the Base Indenture and establishing the terms of the Notes (collectively with the Base Indenture, the “Indenture”) and reference is hereby made to the Indenture, and all modifications and amendments and indentures supplemental thereto relating to the Notes, made for a description of the rights, limitations of rights, obligations, duties, and immunities thereunder of the Trustee, the Issuer, the Guarantor(s) and the Holders of the Notes and the terms upon which the Notes are authenticated and delivered. This Note is one of a series of Securities designated as the 5.625% Notes due June 15, 2034 (collectively, the “Notes”) of the Issuer, limited (except as permitted under the Indenture) in aggregate principal amount to $450,000,000.

 

Payments of principal, premium, if any, and interest in respect of the Notes will be fully and unconditionally guaranteed by the Guarantor(s).

 

Optional Redemption. Prior to March 15, 2034 (the “Par Call Date”), the Issuer may redeem the Notes at any time at its option in whole or from time to time in part, at a redemption price equal to the greater of: (a) 100% of the principal amount of the Notes to be redeemed, and (b) the sum of the present values of the remaining scheduled payments of principal of and interest on the Notes to be redeemed (exclusive of interest accrued to the applicable redemption date), assuming that the Notes matured and that accrued and unpaid interest on the Notes was payable on the Par Call Date, discounted to such redemption date on a semi-annual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate plus 35 basis points (determined on the third Business Day preceding the date the notice of redemption is given) from the respective dates on which such principal and interest would have been payable if such redemption had not been made, plus, in the case of both clauses (a) and (b) above, accrued and unpaid interest on the principal amount of the Notes to be redeemed to but excluding such redemption date.

 

On and after the Par Call Date, the Issuer may redeem the Notes at any time in whole or from time to time in part at its option at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest on the principal amount of the Notes to be redeemed to the applicable redemption date.

 

As used herein (and to the extent any such definitions conflict with definitions included in the Base Indenture, the definitions included here shall control with respect to the Notes):

 

“Treasury Rate” means, with respect to any redemption date, the yield determined by the Issuer in accordance with the following two paragraphs.

 

 

The Treasury Rate shall be determined by the Issuer after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the date the notice of redemption is given based upon the yield or yields for the most recent day that appears or appear, as applicable, after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) — H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities — Treasury constant maturities — Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, we shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields — one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life — and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.

 

If on the third Business Day preceding the date the notice of redemption is given H.15 TCM or any successor designation or publication is no longer published, we shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding the date the notice of redemption is given of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date. If there is no United States Treasury security maturing on the Par Call Date, but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, we shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, we shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.

 

Notice of redemption will be mailed or sent by electronic transmission (or in the case of the Global Note, given pursuant to the applicable procedures of the Depository Trust Company) at least 10 but not more than 60 calendar days before the redemption date to each Holder of record of the Notes to be redeemed at its last registered address and the Trustee (if the notice is to be delivered by the Issuer). The notice of redemption for the Notes will state, among other things, the aggregate principal amount of Notes to be redeemed, the redemption date, the redemption price and the place or places that payment will be made upon presentation and surrender of Notes to be redeemed. Unless the Issuer defaults in payment of the redemption price, interest, if any, will cease to accrue on any Notes that have been called for redemption at the redemption date, on and after the redemption date (unless the Issuer defaults in payment of the redemption price) such Notes shall cease to be entitled to any benefit or security under the Indenture and the Holders of such Notes shall have no right in respect of such Notes except the right to receive the redemption price thereof.

 

 

Miscellaneous. In case an Event of Default with respect to this Note shall have occurred and be continuing, the principal hereof may be (and, in certain cases, shall be) declared, and upon such declaration shall become, due and payable, in the manner, with the effect, and subject to the conditions, provided in the Indenture.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and, if applicable, the Guarantors, and the rights of the Holders of the Securities under the Indenture at any time by the Issuer and, if applicable, the Guarantors, and the Trustee with the consent of the Holders of a majority in the aggregate principal amount of Securities of each series (voting as separate classes) issued under the Indenture at the time outstanding and affected thereby. Furthermore, provisions in the Indenture permit the Holders of a majority in the aggregate outstanding principal amount of Securities of any series, in certain instances, to waive, on behalf of all of the Holders of Securities of such series, certain past defaults under the Indenture and their consequences. Any such waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and other Notes issued upon the registration of transfer hereof or in exchange hereof, or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.

 

No reference herein to the Indenture and no provision of this Note or the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of, and premium, if any, with respect to, and interest on, this Note in the manner, at the respective times, at the rate and in the coin or currency herein prescribed.

 

The Indenture contains provisions for defeasance and discharge and for defeasance at any time of certain restrictive covenants and Events of Default with respect to the Notes upon compliance with certain conditions set forth in the Indenture.

 

This Note is issuable only in definitive registered form, without coupons, in denominations of $2,000 and integral multiples of $1,000 in excess thereof. This Note may be exchanged for a like aggregate principal amount of Notes of other authorized denominations at the office or agency of the Issuer in The City of New York, in the manner and subject to the limitations provided herein and in the Indenture, but without the payment of any charge except for any tax or other governmental charge imposed in connection therewith.

 

The Issuer shall not pay Additional Amounts on this Note held by a person that is not a U.S. person in respect of taxes or similar charges withheld or deducted.

 

The Issuer, the Guarantor(s) or the Trustee and any authorized agent of the Issuer, the Guarantor(s) or the Trustee may deem and treat the person in whose name this Note is registered as the Holder and absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment of, or on account of, the principal of, or premium, if any, with respect to, or subject to the provisions on the face hereof, interest on, this Note and for all other purposes, and none of the Issuer, the Guarantor(s) or the Trustee or any authorized agent of the Issuer, the Guarantor(s) or the Trustee shall be affected by any notice to the contrary.

 

THE INDENTURE AND THIS NOTE SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE.

 

 

ASSIGNMENT FORM

 

FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto:

Please insert social security number or other identifying number of assignee:

Please print or type name and address (including zip code) of assignee:

the within Note and all rights thereunder, hereby irrevocably constituting and appointing                  attorney to transfer said Note of AGREE Limited Partnership (the “Issuer”) on the books of the Issuer, with full power of substitution in the premises.

Dated: _________

Signature Guaranteed

NOTICE: Signature must be guaranteed by an eligible Guarantor Institution (banks, stockbrokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15.

NOTICE: The signature to this Assignment must correspond with the name as written upon the face of the within Note in every particular, without alteration or enlargement or any change whatever.

 

 

FORM OF GUARANTEE

 

The guarantor listed below (hereinafter referred to as the “Guarantor,” which term includes any successors or assigns under an Indenture (the “Base Indenture”), dated as of August 17, 2020, duly executed and delivered by AGREE LIMITED PARTNERSHIP, a Delaware limited partnership (the “Issuer”), AGREE REALTY CORPORATION, a Maryland Corporation (the “General Partner”), and U.S. Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association, as trustee (the “Trustee”), together with the Officer’s Certificate dated as of May 13, 2024, amending and supplementing the Base Indenture and establishing the terms of the Notes (defined below) (collectively with the Base Indenture, the “Indenture”) hereby agrees to, irrevocably and unconditionally, jointly and severally with any other Guarantors of the Notes, guarantee on a senior unsecured basis (i) the due and punctual payment of the principal of, premium, if any, and interest, if any, on the 5.625% Notes due 2034 (the “Notes”) of the Issuer, whether at Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and interest on the overdue principal and premium, if any, and interest on any interest on the Notes, if any, if lawful, and all other obligations of the Issuer, to the Holders (as defined in the Indenture) of the Notes or the Trustee all in accordance with the terms set forth in Article X of the Indenture, and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, or by declaration of acceleration, call for redemption or otherwise.

 

The obligations of the Guarantors to the Holders of the Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Article X of the Indenture and reference is hereby made to such Indenture for the precise terms of this Guarantee. The Guarantor acknowledges that it has received and reviewed a copy of the Indenture and all other documents it deems necessary to review in order to enter into this Guarantee, and acknowledges and agrees to perform all obligations and duties required of a Guarantor pursuant to the Indenture.

 

The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever.

 

This is a continuing Guarantee and shall remain in full force and effect and shall be binding upon the Guarantor and its successors and assigns until full and final payment of all of the Issuer’s obligations under the Notes and Indenture or until legally discharged in accordance with the terms regarding release set forth in Article X of the Indenture and shall inure to the benefit of the successors and assigns of the Trustee and the Holders of the Notes, and, in the event of any transfer or assignment of rights by any Holder of the Notes or the Trustee, the rights and privileges herein conferred upon that party shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof. This is a Guarantee of payment and performance and not of collectability.

 

This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Note upon which this Guarantee is noted shall have been signed, in the name and on behalf of the Trustee under the Indenture, manually or by facsimile or other electronic imaging means by one of the authorized officers of the Trustee under the Indenture or as otherwise permitted under the Indenture.

 

The obligations of the Guarantor under this Guarantee shall be limited to the extent necessary to insure that it does not constitute a fraudulent conveyance under applicable law.

 

THE TERMS OF ARTICLE X OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE. Capitalized terms used herein have the same meanings given in the Indenture unless otherwise indicated.

 

 

IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed, manually, electronically or by facsimile by an authorized signatory.

 

Date: _______________
	[NAME OF GUARANTOR]
	By:
		Name:
		Title:

 

 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY

 

The following exchanges of a part of this Global Security for an interest in another Global Security or for a definitive registered Note, or exchanges of a part of another Global Security or definitive registered Note for an interest in this Global Security, have been made:

 

Date of Exchange		Amount of Decrease in Principal Amount of This Global Security		Amount of Increase in Principal Amount of This Global Security		Principal Amount of This Global Security Following Such Decrease (or Increase)		Signature of Authorized Signatory of Trustee or  Custodian

 

 

 

Exhibit 5.1

 

 

 

May 13, 2024

 

Agree Realty Corporation Agree Limited Partnership 32301 Woodward Avenue Royal Oak, Michigan 48073

 

Re:

Registration of 5.625% Senior Notes Due 2034 of Agree Limited Partnership

 

Ladies and Gentlemen:

 

We have acted as counsel to Agree Limited Partnership, a Delaware limited partnership (the “Issuer”) in connection with the issuance and sale of $450,000,000 aggregate principal amount of the Issuer’s 5.625% Senior Notes due 2034 (the “Notes”), which have been registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to a registration statement on Form S-3 (File No. 333-271668), as amended by the Post-Effective Amendment No. 1 filed with the Securities and Exchange Commission (the “Commission”) (as amended, the “Registration Statement”), which became effective upon filing with the Commission, with the Notes to be guaranteed (the “Guarantees”) by Agree Realty Corporation, a Maryland corporation (the “Parent”), the parties listed on Schedule I attached hereto (the “Subsidiary Guarantors”, and together with the Parent, collectively, the “Opinion Guarantors”) and the parties listed on Schedule II attached hereto (the “Other Guarantors”, and together with the Opinion Guarantors, collectively, the “Guarantors”).

 

In our capacity as counsel to the Issuer, we have examined originals or copies of (i) the Registration Statement, (ii) an indenture, dated as of August 17, 2020, among the Issuer, Parent, and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by the Officer’s Certificate delivered by the Issuer and the Parent on May 13, 2024 (as supplemented, the “Indenture”), (iii) the underwriting agreement (the “Underwriting Agreement”), dated May 6, 2024, by and among the Issuer, the Guarantors, and PNC Capital Markets LLC, Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Wells Fargo Securities, LLC, as representatives of the several underwriters named therein, and (iv) such other limited liability company and limited partnership and other records and documents we considered appropriate. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us as copies.

 

The law covered by the opinions expressed in this opinion letter is limited to the following Law (as applicable and as defined in paragraph F below): (i) the Delaware Revised Uniform Limited Partnership Act (the “Delaware RULPA”), (ii) the federal Law of the United States, (iii) the Delaware Limited Liability Company Act (together with the Delaware RULPA, “Applicable Delaware Law”), (iv) the internal Law of the State of Michigan, (v) the internal Law of the State of Illinois, and (vi) the internal Law of the State of New York, in each case as in effect on the date of this opinion letter, and we do not express any opinion concerning any other laws. We are not admitted to practice in the State of Delaware and, with respect to the opinions set forth below, insofar as they relate to any Delaware law, we (a) have limited our review, with your permission, to standard compilations available to us of the Applicable Delaware Law, which we have assumed to be accurate and complete, and (b) have not reviewed case law.

 

Honigman LLP • 2290 First National Building • 660 Woodward Avenue • Detroit, Michigan 48226-3506

 

 

 

 

 

May 13, 2024

Page 2

 

Based upon and subject to the foregoing, we are of the opinion that:

 

1.

The Notes and the Guarantees have been duly authorized by all necessary limited partnership, corporate or limited liability company action, as applicable, on the part of the Issuer and each Guarantor listed on Schedule I as being organized or incorporated under the laws of the State of Delaware, the State of Illinois or the State of Michigan, as applicable.

 

2.

When authenticated, executed, issued and delivered in accordance with the Indenture and upon payment for and delivery of the Notes in accordance with the terms of the Underwriting Agreement, the Notes will be the legally valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance laws) and by general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.

 

3.

When the Guarantees are executed and the Notes are executed, issued, authenticated and delivered, all in accordance with the Indenture and upon payment for and delivery of the Notes in accordance with the terms of the Underwriting Agreement, the Guarantees will be the legally valid and binding obligations of the Opinion Guarantors, enforceable against the Opinion Guarantors in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance laws) and by general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.

 

With respect to the foregoing opinions, we have assumed as true the matters set forth in the opinions of Ballard Spahr LLP, Burr & Forman LLP and Porter Hedges LLP dated the date hereof, a copy of which has been delivered to you by such other counsel.

 

Our opinions set forth above are subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance and voidable transaction laws), general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law and limitations regarding the availability of indemnification and contribution where such indemnification or contribution may be limited by applicable law or the application of principles of public policy.

 

We express no opinion as to the validity, binding effect or enforceability of (i) provisions that relate to choice of law, forum selection or submission to jurisdiction (including, without limitation, any express or implied waiver of any objection to venue in any court or of any objection that a court is an inconvenient forum), (ii) waivers by the Issuer or Guarantor of any statutory or constitutional rights or remedies, (iii) terms which excuse any person or entity from liability for, or require the Issuer or Guarantor to indemnify such person or entity against, such person’s or entity’s negligence or willful misconduct, (iv) obligations to pay any prepayment premium, default interest rate, early termination fee or other form of liquidated damages, if the payment of such premium, interest rate, fee or damages may be construed as unreasonable in relation to actual damages or disproportionate to actual damages suffered as a result of such prepayment, default or termination, usury and other interest-related restrictions, or (v) provisions providing that the terms of agreement may not be waived or modified except in writing.

 

Honigman LLP • 2290 First National Building • 660 Woodward Avenue • Detroit, Michigan 48226-3506

 

 

 

 

May 13, 2024

Page 3

 

We hereby consent to the filing of this opinion as an exhibit to the Current Report on Form 8-K of Agree Realty Corporation and Agree Limited Partnership being filed on the date hereof, and incorporated by reference into the Registration Statement. We hereby consent to the reference to our firm under the caption “Legal Matters” in the prospectus supplement, dated May 6, 2024, filed with the Commission on May 8, 2024. In giving such consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission under the Securities Act.

 

	Very truly yours,
	/s/ Honigman LLP
	Honigman LLP

 

Honigman LLP • 2290 First National Building • 660 Woodward Avenue • Detroit, Michigan 48226-3506

 

 

Schedule I

 

Subsidiary Guarantors

 

Delaware Guarantors

 

1.

Agree 2016, LLC

2.

Agree Central, LLC

3.

Agree Chapel Hill NC, LLC

4.

Agree Columbia SC, LLC

5.

Agree Convenience No. 1, LLC

6.

Agree Construction Management, LLC

7.

Agree CW, LLC

8.

Agree DT Jacksonville NC, LLC

9.

Agree Farmington NM, LLC

10.

Agree Grandview Heights OH, LLC

11.

Agree Greenwich CT, LLC

12.

Agree Lebanon NH, LLC

13.

Agree Littleton CO, LLC

14.

Agree MCW, LLC

15.

Agree Mena AR, LLC

16.

Agree NJ, LLC

17.

Agree Onaway MI, LLC

18.

Agree Orange CT, LLC

19.

Agree Oxford Commons AL, LLC

20.

Agree Paterson NJ, LLC

21.

Agree SB, LLC

22.

Agree Secaucus NJ, LLC

23.

Agree Shelf ES PA, LLC

24.

Agree Shelf PA, LLC

25.

Agree Stores, LLC

26.

Agree TK, LLC

27.

DD71, LLC

28.

Lunacorp, LLC

29.

Pachyderm Chattanooga TN, LLC

30.

Pachyderm Marietta GA, LLC

31.

Pachyderm Myrtle Beach SC, LLC

32.

Pachyderm Philadelphia PA, LLC

33.

Pachyderm Properties, LLC

34.

Pachyderm Riverdale GA, LLC

35.

Pachyderm Waite Park MN, LLC

36.

Paint PA, LLC

37.

Safari Properties II, LLC

 

 

Illinois Guarantor

 

1.

Agree Spring Grove, LLC

 

Michigan Guarantors

 

1.

Agree 117 Mission, LLC

2.

Agree Madison AL, LLC

3.

Agree M-59, LLC

4.

Agree Southfield, LLC

5.

Agree Walker, LLC

6.

Mt. Pleasant Shopping Center, L.L.C.

 

 

Schedule II

 

Other Guarantors

 

1.

Agree St. Petersburg, LLC, a Florida limited liability company

2.

Agree Fort Walton Beach, LLC, a Florida limited liability company

3.

Agree Tallahassee, LLC, a Florida limited liability company

4.

DD Hempstead LLC, a North Carolina limited liability company

5.

DD Brownsville LLC, a North Carolina limited liability company

6.

Agree Wilmington, LLC, a North Carolina limited liability company

7.

Agree Dallas Forest Drive, LLC, a Texas limited liability company

8.

Agree Roseville CA, LLC, a California limited liability company

9.

Agree Absecon Urban Renewal, LLC, a New Jersey limited liability company

10.

Agree Marietta, LLC, a Georgia limited liability company

11.

Agree Wawa Baltimore, LLC, a Maryland limited liability company

 

 

 

Exhibit 5.2

 

 

May 13, 2024

 

Agree Realty Corporation Agree Limited Partnership 32301 Woodward Avenue Royal Oak, Michigan 48073

 

Re:

Agree Realty Corporation, a Maryland corporation (the “Company”) -- Issuance and sale of $450,000,000 aggregate principal amount of 5.625% Notes due 2034 (the “Notes”) by Agree Limited Partnership, a Delaware limited partnership of which the Company acts as the general partner (the “Operating Partnership”), pursuant to a Registration Statement on Form S-3 (Registration No. 333-271668) filed with the United States Securities and Exchange Commission (the “Commission”) on May 5, 2023, as amended by Post-Effective Amendment No. 1 filed with the Commission on May 6, 2024 (the “Registration Statement”)

 

Ladies and Gentlemen:

 

We have acted as (i) Maryland corporate counsel to the Company, (ii) Maryland limited liability company counsel to Agree Wawa Baltimore, LLC, a Maryland limited liability company of which the Operating Partnership is the sole member (the “Maryland Guarantor”), (iii) California limited liability company counsel to Agree Roseville CA, LLC, a California limited liability company of which the Operating Partnership is the sole member (the “California Guarantor”), (iv) Georgia limited liability company counsel to Agree Marietta, LLC, a Georgia limited liability company of which the Operating Partnership is the sole member (the “Georgia Guarantor”), and (v) New Jersey limited liability company counsel to Agree Absecon Urban Renewal, LLC, a New Jersey limited liability company of which the Operating Partnership is the sole member (the “New Jersey Guarantor” and together with the Maryland Guarantor, the California Guarantor and the Georgia Guarantor, collectively, the “Subsidiary Guarantors”), in connection with the registration of the Notes by the Operating Partnership and the guarantee of the Notes by the Company and the Subsidiary Guarantors, under the Securities Act of 1933, as amended (the “Act”), pursuant to the Registration Statement. You have requested our opinion with respect to the matters set forth below.

 

In our capacity as Maryland corporate counsel to the Company, Maryland limited liability company counsel to the Maryland Guarantor, California limited liability company counsel to the California Guarantor, Georgia limited liability company counsel to the Georgia Guarantor and New Jersey limited liability company counsel to the New Jersey Guarantor, and for the purposes of this opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively, the “Documents”):

 

 

BALLARD SPAHR LLP

 

Agree Realty Corporation

Agree Limited Partnership

May 13, 2024

Page 2

 

(i)            the corporate charter of the Company (the “Charter”) represented by Articles of Incorporation filed with the State Department of Assessments and Taxation of Maryland (the “Department”) on December 15, 1993, Articles of Amendment filed with the Department on April 7, 1994, two Articles Supplementary filed with the Department on December 8, 2008, Articles Supplementary filed with the Department on September 21, 2012, Articles of Amendment filed with the Department on May 8, 2013, two Articles Supplementary filed with the Department on July 31, 2013, Articles of Amendment filed with the Department on May 5, 2015 and Articles of Amendment filed with the Department on May 3, 2016, Articles Supplementary filed with the Department on February 26, 2019, Articles of Amendment filed with the Department on April 25, 2019, Articles of Amendment filed with the Department on May 7, 2021 and Articles Supplementary filed with the Department on September 13, 2021;

 

(ii)           the Bylaws of the Company adopted as of November 8, 2006, as amended and restated by the Amended and Restated Bylaws of the Company, adopted as of May 8, 2013, as amended by the First Amendment to the Amended and Restated Bylaws of the Company, adopted as of February 26, 2019 (the “Bylaws”);

 

(iii)          the Articles of Organization of the Maryland Guarantor filed with the Department on July 14, 2011 (the “Maryland Articles of Organization”);

 

(iv)          the Operating Agreement of the Maryland Guarantor, dated as of December 23, 2011 (the “Maryland Operating Agreement”);

 

(v)           the Articles of Organization of the California Guarantor filed with the Secretary of State of the State of California (the “California Secretary of State”) on August 22, 2011 (the “California Articles of Organization”);

 

(vi)          the Operating Agreement of the California Guarantor, dated as of August 22, 2011 (the “California Operating Agreement”);

 

(vii)         the Articles of Organization of the Georgia Guarantor filed with the Georgia Secretary of State (the “Georgia Secretary of State”) on June 1, 2011 (the “Georgia Articles of Organization”);

 

(viii)       the Operating Agreement of the Georgia Guarantor, dated as of June 9, 2011 (the “Georgia Operating Agreement”);

 

(ix)          the Certificate of Formation of the New Jersey Guarantor filed with the Department of the Treasury, Division of Revenue and Enterprise Services of the State of New Jersey (the “New Jersey Treasurer”) on April 17, 2023 (the “New Jersey Certificate of Formation”);

 

(x)           the Operating Agreement of the New Jersey Guarantor, dated as of May 11, 2023 (the “New Jersey Operating Agreement”);

 

 

BALLARD SPAHR LLP

 

Agree Realty Corporation

Agree Limited Partnership

May 13, 2024

Page 3

 

(xi)          resolutions adopted by the Board of Directors of the Company, or a duly authorized committee thereof, on or as of May 4, 2023, May 6, 2024 and May 6, 2024 (the “Directors’ Resolutions”);

 

(xii)        resolutions adopted by the sole member of each of the Subsidiary Guarantors, on or as of May 6, 2024 (the “Subsidiary Guarantor Resolutions”);

 

(xiii)       the Second Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as amended (the “Partnership Agreement”);

 

(xiv)       the Registration Statement and the related form of prospectus and prospectus supplement included therein, in substantially the form filed with the Commission pursuant to the Act;

 

(xv)        a copy of the fully executed Indenture, dated as of August 17, 2020 (the “Base Indenture”), by and among the Company, the Operating Partnership and U.S. Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association (the “Trustee”), as amended and supplemented by the Officer’s Certificate, dated as of May 13, 2024, executed by an officer of the Company, on behalf of the Company in its own capacity and as sole general partner of the Operating Partnership, pursuant to Sections 2.1, 2.2 and 11.5 of the Base Indenture and establishing the forms and terms of the Notes (the “Indenture Officer’s Certificate”, and together with the Base Indenture, the “Indenture”);

 

(xvi)        a copy of the fully executed global note, dated as of May 13, 2024 (the “Global Note”), registered in the name of The Depository Trust Company’s nominee Cede & Co., representing the Notes;

 

(xvii)        a copy of each fully executed guarantee, dated as of May 13, 2024 (individually and collectively, the “Guarantee”), made by the Company and each of the Subsidiary Guarantors for the benefit of the holders of the Notes and annexed to the Global Note;

 

(xviii)      a certificate of Joey Agree, President and Chief Executive Officer of the Company, and Peter Coughenour, Chief Financial Officer and Secretary of the Company, dated as of a recent date (the “Officers’ Certificate”), to the effect that, among other things, the Charter, the Bylaws, the Maryland Articles of Organization, the Maryland Operating Agreement, the California Articles of Organization, the California Operating Agreement, the Georgia Articles of Organization, the Georgia Operating Agreement, the New Jersey Certificate of Formation, the New Jersey Operating Agreement, the Directors’ Resolutions, the Subsidiary Guarantor Resolutions and the Partnership Agreement are true, correct and complete, have not been rescinded or modified and are in full force and effect on the date of the Officers’ Certificate, and certifying as to the form, approval, execution and delivery of the Indenture, the Global Note and the Guarantee;

 

 

BALLARD SPAHR LLP

 

Agree Realty Corporation

Agree Limited Partnership

May 13, 2024

Page 4

 

(xix)        a status certificate of the Department, dated as of a recent date, to the effect that the Company is duly incorporated and existing under the laws of the State of Maryland and is duly authorized to transact business in the State of Maryland;

 

(xx)          a status certificate of the Department, dated as of a recent date, to the effect that the Maryland Guarantor is duly formed and existing under the laws of the State of Maryland and is duly authorized to transact business in the State of Maryland (the “Maryland Status Certificate”);

 

(xxi)          a certificate of status issued by the California Secretary of State with respect to the California Guarantor, dated as of a recent date (the “California Status Certificate”);

 

(xxii)        a Certificate of Existence relating to the Georgia Guarantor issued by the Georgia Secretary of State on a recent date (the “Georgia Status Certificate”);

 

(xxiii)       a certificate issued by the New Jersey Treasurer, dated as of a recent date, stating that the New Jersey Guarantor is in good standing as a limited liability company of the State of New Jersey (the “New Jersey Status Certificate”); and

 

(xxiv)      such other laws, records, documents, certificates, opinions and instruments as we have deemed necessary to render this opinion, subject to the limitations, assumptions and qualifications noted below.

 

In reaching the opinions set forth below, we have assumed the following:

 

(a)            each person executing any of the Documents on behalf of a party (other than the Company and the Subsidiary Guarantors) is duly authorized to do so;

 

(b)            each natural person executing any of the Documents is legally competent to do so;

 

(c)            any of the Documents submitted to us as originals are authentic; any of the Documents submitted to us as certified or photostatic copies conform to the original documents; all signatures on all of the Documents are genuine; all public records reviewed or relied upon by us or on our behalf are true and complete; all statements and information contained in the Documents are true and complete; there has been no 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;

 

(d)            the Officers’ Certificate and all other certificates submitted to us are true and correct both when made and as of the date hereof;

 

 

BALLARD SPAHR LLP

 

Agree Realty Corporation

Agree Limited Partnership

May 13, 2024

Page 5

 

(e)            the Company has not, and is not required to be, registered under the Investment Company Act of 1940;

 

(f)            the consummation of the transactions contemplated by the Indenture, the Global Note and the Guarantee will result in receipt by each of the Subsidiary Guarantors of good and valuable consideration;

 

(g)            the Notes will be issued under, and subject to the terms of, the Indenture; and

 

(h)            the Notes will be issued in book-entry form, represented by the Global Note, and will be authenticated by the Trustee in accordance with and subject to the terms of the Indenture.

 

Based on the foregoing, and subject to the assumptions and qualifications set forth herein, it is our opinion that, as of the date of this letter:

 

1.            The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland.

 

2.            Based solely on the Maryland Status Certificate, the Maryland Guarantor is existing as a limited liability company in good standing under the laws of the State of Maryland.

 

3.            Based solely on the California Status Certificate, the California Guarantor is existing as a limited liability company in good standing under the laws of the State of California.

 

4.            Based solely on the Georgia Status Certificate, the Georgia Guarantor is existing as a limited liability company under the laws of the State of Georgia.

 

5.            Based solely on the New Jersey Status Certificate, the New Jersey Guarantor is presently existing as a limited liability company in good standing under the laws of the State of New Jersey.

 

6.            The Company has the corporate power to create the obligation evidenced by the Guarantee.

 

7.            Each of the Subsidiary Guarantors has the limited liability company power to create the obligation evidenced by the Guarantee.

 

 

BALLARD SPAHR LLP

 

Agree Realty Corporation

Agree Limited Partnership

May 13, 2024

Page 6

 

8.            The issuance of the Notes, the guarantee of the Notes by the Company, and the execution and delivery of the Global Note and the Guarantee, pursuant to the Indenture and the Registration Statement, in each case by the Company in its own capacity and, in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership, as the case may be, have been duly authorized by all necessary corporate action on the part of the Company. The Global Note and the Guarantee have been duly executed and delivered by the Company in its own capacity and, in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership, as the case may be.

 

9.            The guarantee of the Notes by each of the Subsidiary Guarantors, and the execution and delivery of the Guarantee, pursuant to the Indenture and the Registration Statement, by each of the Subsidiary Guarantors have been duly authorized by all necessary limited liability company action on the part of each of the Subsidiary Guarantors. The Guarantee has been duly executed and delivered by each of the Subsidiary Guarantors.

 

The foregoing opinions are limited to the substantive laws of the State of Maryland, the State of California, the State of Georgia and the State of New Jersey, and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland, the State of California, the State of Georgia and the State of New Jersey, or as to federal or state laws regarding fraudulent transfers or the Trust Indenture Act of 1939, as amended, and we express no opinion with respect to the limited partnership actions required for the Operating Partnership to authorize, execute or deliver any document. To the extent that any matter as to which our opinions are expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, the State of California, the State of Georgia or the State of New Jersey, we do not express any opinion on such matter.

 

This opinion letter is issued as of the date hereof and is necessarily limited to laws now in effect and facts and circumstances presently existing and brought to our attention. We assume no obligation to supplement this opinion letter if any applicable laws change after the date hereof, or if we become aware of any facts or circumstances that now exist or that occur or arise in the future and may change the opinions expressed herein after the date hereof.

 

We consent to your filing this opinion as an exhibit to the Company’s Current Report on Form 8-K relating to the Notes and the Guarantee, which is incorporated by reference in the Registration Statement, and further consent to the filing of this opinion as an exhibit to the applications to securities commissioners for the various states of the United States for registration of the Notes and the Guarantee. We also consent to the identification of our firm in the section of the Registration Statement entitled “Legal Matters”. 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 Act.

 

Very truly yours,

 

/s/ Ballard Spahr LLP

 

 

 

Exhibit 5.3

 

May 13, 2024

 

Agree Realty Corporation
32301 Woodward Avenue
Royal Oak, Michigan 48073
___________________________
___________________________

 

Re:      $450,000,000 aggregate principal amount of 5.625% Notes due 2034

 

Ladies and Gentlemen:

 

We have acted as special North Carolina and Florida counsel to the entities set forth on Exhibit A to this opinion letter (the “Subsidiary Guarantors”) in connection with the transactions contemplated by the Underwriting Agreement dated May 6, 2024 (the “Underwriting Agreement”), by and among Agree Limited Partnership, a Delaware limited partnership (the “Issuer”), Agree Realty Corporation, a Maryland corporation (the “Parent Guarantor”), Subsidiary Guarantors and certain other guarantors of Issuer that are parties thereto (the “Other Guarantors”, and together with the Subsidiary Guarantors and Parent Guarantor, the “Guarantors”), and PNC Capital Markets LLC, Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Wells Fargo Securities, LLC, as representatives (collectively, the “Representatives” and each, a “Representative”) of the several underwriters listed in Schedule I thereto (collectively with the Representatives, the “Underwriters”), and the instruments and documents set forth on Exhibit C to this opinion letter. Pursuant to the Underwriting Agreement, the Underwriters have severally agreed to purchase from the Issuer $450,000,000 aggregate principal amount of 5.625% Notes due 2034 (the “Notes”), which will be issued under the Indenture (as defined on Exhibit B hereto). The Notes will be guaranteed by the Parent Guarantor, each Subsidiary Guarantor and the Other Guarantors pursuant to the Guarantee, as defined on Exhibit B hereto. As used herein, the term “Opinion Documents” shall refer to the Underwriting Agreement and the Guarantee. Except as otherwise indicated in this opinion letter, capitalized terms used below are defined as set forth in the Underwriting Agreement.

 

In so acting, we have reviewed (i) executed versions of the Opinion Documents and the other documents reflected on Exhibit B; (ii)  the articles of organization or the certificate of formation, as applicable, and the operating agreement or the limited liability company agreement, as applicable, of each Subsidiary Guarantor set forth on Exhibit C (collectively, as amended, the “Organizational Documents”) and (iii) the “Certificates” specifically described on Exhibit C (the “Certificates”), and have considered such matters of law and of fact, and relied as to factual matters upon such certificates and other information furnished to us, as we have deemed appropriate as a basis for our opinions set forth below. As to matters involving facts relevant to the opinions stated in this opinion letter, we have relied, without independent investigation or verification, upon (a) representations and warranties in the documents reflected on Exhibit B, (b) certificates of officers of the Subsidiary Guarantors and (c) written or oral advice or certificates of government officials.

 

 

For the purposes of this opinion letter, we have assumed that each document submitted to us is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each such document are genuine. We have further assumed: (a) the Opinion Documents, the Indenture and the Notes are valid and binding obligations of the parties thereto, enforceable in accordance with their respective terms, (b)  the legal capacity of natural persons, and we have assumed that, as of the date of this opinion letter, (c) each Underwriter has the legal power and authority and has satisfied all legal requirements that are applicable to it to the extent necessary to make the Opinion Documents to which it is a party enforceable against it.

 

The law covered by the opinions expressed in this opinion letter is limited to (i) the internal Law of the State of Florida, and (iii) the internal Law of the State of North Carolina, in each case as in effect on the date of this opinion letter, and we do not express any opinion concerning any other laws. For purposes of this opinion letter, “Law” means the statutes, and the judicial and administrative decisions, and the rules and regulations of the governmental agencies of the applicable jurisdiction, but excluding the statutes and ordinances, the administrative decisions, and the rules and regulations of counties, towns, municipalities, special political subdivisions (whether created or enabled through legislative action at the federal, state or regional level) and judicial decisions to the extent that they deal with any of the foregoing

 

Based upon and subject to the foregoing, we are of the opinion that:

 

1.            Based on the applicable Organizational Documents and applicable Certificate, each NC Guarantor (defined on Exhibit A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of North Carolina. Each NC Guarantor has the limited liability company power and authority to enter into and to perform its obligations under the Opinion Documents. The execution, delivery and performance by each NC Guarantor of the Opinion Documents to which it is a party have been duly authorized by all necessary limited liability company action on behalf of such NC Guarantor.

 

2.            Based on the applicable Organizational Documents and applicable Certificate, each Florida Guarantor (defined on Exhibit A) is a limited liability company organized under the laws of the State of Florida and its status is active. Each Florida Guarantor has the limited liability company power and authority to enter into and to perform its obligations under the Opinion Documents to which it is a party. The execution, delivery and performance by each Florida Guarantor of the Opinion Documents to which it is a party have been duly authorized by all necessary limited liability company action on behalf of such Florida Guarantor.

 

3.            Each NC Guarantor’s execution and delivery of the Opinion Documents to which it is a party and the performance by such NC Guarantor of its obligations thereunder: (i) do not contravene any provision of the Organizational Documents, as applicable, of the applicable NC Guarantor and (ii) do not violate any current generally applicable law or regulation of the State of North Carolina (provided that no opinion is expressed herein with respect to the violation of any law or regulation of special applicability to any NC Guarantor based on the nature of such NC Guarantor’s business activities or assets).

 

 

4.            Each Florida Guarantor’s execution and delivery of the Opinion Documents to which it is a party and the performance by such Florida Guarantor of its obligations thereunder: (i) do not contravene any provision of the Organizational Documents, as applicable, of the applicable Florida Guarantor and (ii) do not violate any current generally applicable law or regulation of the State of Florida (provided that no opinion is expressed herein with respect to the violation of any law or regulation of special applicability to any Florida Guarantor based on the nature of such Florida Guarantor’s business activities or assets).

 

5.            The Opinion Documents have been duly authorized, executed and delivered by each Subsidiary Guarantor that is a party thereto.

 

6.            No consent, approval, order or authorization of, or filing with any governmental authority is required to be obtained or made by any Subsidiary Guarantor under the Law of the States of Florida or North Carolina for the valid execution and delivery of the Opinion Documents, by such Subsidiary Guarantor except for (i) those that have been obtained, rendered or complied with, as the case may be, or (ii) as may be required under applicable state securities or blue sky laws.

 

The foregoing opinions are subject to the following (in addition to the qualifications and other limitations set forth above):

 

A.            The effect of general rules of contract law that, where a portion of an agreement is unenforceable, the balance is enforceable only when the unenforceable portion is not an essential part of the agreed exchange.

 

B.            No opinion is expressed herein as to the validity or enforceability of the provisions of the Loan Documents permitting enforcement of the Loan Documents strictly in accordance with their terms, notwithstanding the previous departure from, or waiver of, contractual terms by a party thereto.

 

C.            We have assumed that each Subsidiary Guarantor and its members, managers, directors and officers have not been subject to duress, fraud or undue influence during the process of negotiating, executing and/or delivering the Opinion Documents.

 

D.            With respect to any guarantee of indebtedness by a Subsidiary Guarantor, we have assumed that such Subsidiary Guarantor will benefit from the extension of credit to the extent necessary to make such guarantee a valid corporate, limited partnership or limited liability company (as the case may be) act of such Subsidiary Guarantor.

 

E.            We express no opinion as to the general enforceability of the Opinion Documents.

 

F.            No opinion is expressed herein as to matters of venue, or as to the jurisdiction of any court over any person, or as to any provisions of the Opinion Documents which purport to establish evidentiary standards for suits or proceedings.

 

G.            We have assumed that each NC Guarantor is organized solely under the laws of the state of North Carolina and each Florida Guarantor is organized solely under the laws of the State of Florida.

 

 

H.            We call to your attention that North Carolina General Statutes Section 6-21.2 sets forth the procedures and limitations applicable to the collection of attorneys' fees and accordingly, any provisions in the Opinion Documents relating to the ability to collect attorneys’ fees upon default are subject to those limitations; we express no opinion with respect to any provision of the Opinion Documents purporting to require a party to pay or reimburse attorneys’ fees incurred by another party or to indemnify another party therefor which may be limited by applicable law and public policy.

 

I.            We express no opinion with respect to any provision of the providing that the acceptance of a past due installment or other performance by a party shall not be deemed a waiver of its right to accelerate the loan or other payment obligation. A North Carolina Court of Appeals has held that when the holder of a promissory note regularly accepted late payments, such holder is deemed to have waived its right to accelerate the debt because of late payments until it notifies the maker that prompt payments are again required. Driftwood Manor Investors v. City Federal Savings & Loan Association, 63 N.C. App. 459, 305 S.E. 2d 204 (1983).

 

J.            We express no opinion with respect to any provision of the Opinion Documents which requires that any amendments or waivers to the Opinion Documents must be in writing.

 

K.            We call your attention to the provisions of North Carolina General Statutes Sections 26-7 through 26-9 which may qualify the enforceability of the Opinion Documents. These sections grant guarantors the right after the obligation which is the subject of the guaranty becomes due and payable, to make written demand on the holder of the obligation to exercise reasonable diligence to recover against the debtor or any security securing payment of the obligation before looking to the guarantor for payment of the debt.

 

L.            Our opinions set forth in this letter are based upon the facts in existence and laws in effect on the date hereof, and we expressly disclaim any obligation to update our opinions herein, regardless of whether changes in such facts or laws come to our attention after the delivery hereof.

 

M.            Our opinions are limited to those expressly set forth herein, and we express no opinions by implication.

 

This opinion letter may be relied upon by you only in connection with the transactions described in the Opinion Documents. This opinion letter may not be used or relied upon by any other person or for any other purpose whatsoever, nor published, quoted or referenced to, or filed with, any other person or governmental agency, without, in each instance, our prior written consent.

 

	Very truly yours,
	/s/ Burr & Forman LLP
	BURR & FORMAN LLP

 

 

Exhibit A

 

Subsidiary Guarantors

 

Florida Guarantors:

 

1.

Agree St. Petersburg, LLC, a Florida limited liability company

 

2.

Agree Fort Walton Beach, LLC, a Florida limited liability company

 

3.

Agree Tallahassee, LLC, a Florida limited liability company

 

NC Guarantors

 

1.

DD Hempstead LLC, a North Carolina limited liability company

 

2.

DD Brownsville LLC, a North Carolina limited liability company

 

3.

Agree Wilmington, LLC, a North Carolina limited liability company

 

 

Exhibit B
Documents

 

Opinion Documents

 

1.            Underwriting Agreement

 

2.            Guarantee, dated May 13, 2024, by the Guarantors in favor of the holders of the Notes (the “Guarantee”).

 

Other Reviewed Documents

 

3.            Indenture, dated August 17, 2020, among the Issuer, the Parent Guarantor and the Trustee (the “Base Indenture”), as supplemented by the Officer’s Certificate, dated May 13, 2024, of the Issuer and the Parent Guarantor (the “Officer’s Certificate,” and together with the Base Indenture, the “Indenture”).

 

4.            Global Note, dated May 13, 2024, representing 5.625% Notes due 2034 in the principal amount of $450,000,000, CUSIP No. 008513 AE3, ISIN No. US008513AE31.

 

 

Exhibit C

 

Organizational Documents

 

1.            Articles of Organization of Agree Fort Walton Beach, LLC filed with the Secretary of State of Florida on September 26, 2011, as certified by the Secretary of State of Florida on July 13, 2023.

 

2.            Amended and Restated Operating Agreement of Agree Fort Walton Beach, LLC dated as of July 28, 2020 by Agree Limited Partnership, a Delaware limited partnership, as its sole member.

 

3.            Articles of Organization of Agree St Petersburg, LLC filed with the Secretary of State of Florida on August 1, 2012, as certified by the Secretary of State of Florida on May 4, 2021.

 

4.            Operating Agreement of Agree St Petersburg, LLC dated as of August 2, 2012 by Agree Limited Partnership, a Delaware limited partnership, as its sole member.

 

5.            Articles of Organization of Agree Tallahassee, LLC filed with the Secretary of State of Florida on December 6, 2010, as certified by the Secretary of State of Florida on March 10, 2023.

 

6.            Operating Agreement of Agree Tallahassee, LLC dated as of December 14, 2020 by Agree Limited Partnership, a Delaware limited partnership, as its sole member.

 

7.            Articles of Organization of Agree Wilmington, LLC dated November 30, 2010 and filed with the Secretary of State of North Carolina on December 1, 2010, as certified by the Secretary of State of North Carolina on March 9, 2023.

 

8.            Amended and Restated Operating Agreement of Agree Wilmington, LLC dated as of July 28, 2020 by Agree Limited Partnership, a Delaware limited partnership, as its sole member.

 

9.            Articles of Organization of DD Brownsville LLC dated and filed with the Secretary of State of North Carolina on September 23, 2022, as certified by the Secretary of State of North Carolina on May 8, 2024.

 

10.            Amended and Restated Operating Agreement of DD Brownsville LLC dated as of December 9, 2022 by Agree Limited Partnership, a Delaware limited partnership, as its sole member.

 

11.            Articles of Organization of DD Hempstead LLC dated and filed with the Secretary of State of North Carolina on September 23, 2022, as certified by the Secretary of State of North Carolina on March 9, 2023.

 

12.            Amended and Restated Operating Agreement of DD Hempstead LLC dated as of December 9, 2022 by Agree Limited Partnership, a Delaware limited partnership, as its sole member.

 

 

Certificates

 

1.            Certificate of Status of Agree Fort Walton Beach, LLC issued by the Florida Secretary of State on March 7, 2024.

 

2.            Certificate of Status of Agree St Petersburg, LLC issued by the Florida Secretary of State on March 7, 2024.

 

3.            Certificate of Status of Agree Tallahassee, LLC issued by the Florida Secretary of State on March 7, 2024.

 

4.            Certificate of Existence of Agree Wilmington, LLC issued by the North Carolina Secretary of State on March 7, 2024.

 

5.            Certificate of Existence of DD Brownsville LLC issued by the North Carolina Secretary of State on April 23, 2024.

 

6.            Certificate of Existence of DD Hempstead LLC issued by the North Carolina Secretary of State on March 7, 2024.

 

 

 

Exhibit 5.4

  

1000 Main Street, 36th Floor Houston, Texas 77002 Telephone {713} 226-6000 Telecopier {713} 228-1331 porterhedges.com

 

May 13, 2024

 

Agree Realty Corporation 32301 Woodward Avenue Royal Oak, Michigan 48073

 

Ladies and Gentlemen:

 

We have acted as special Texas counsel to Agree Dallas Forest Drive, LLC, a Texas limited liability company (the “Texas Guarantor”), a subsidiary of Agree Limited Partnership, a Delaware limited partnership (the “Agree LP”), in connection with an Underwriting Agreement dated May 6, 2024 (the “Underwriting Agreement”), by and among Agree LP, Agree Realty Corporation, a Maryland corporation (the “Parent Guarantor”), the subsidiary guarantors party thereto, including the Texas Guarantor (the “Subsidiary Guarantors”), and PNC Capital Markets LLC, Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Wells Fargo Securities, LLC, as representatives (collectively, the “Representatives” and each, a “Representative”) of the several underwriters listed in Schedule I thereto (collectively with the Representatives, the “Underwriters”). Pursuant to the Underwriting Agreement, the Underwriters severally agreed to purchase from Agree LP $450 million aggregate principal amount of 5.625% Notes due 2034 (the “Notes”), which will be issued under the Indenture, dated August 17, 2020 (the “Base Indenture”), among Agree LP, the Parent Guarantor and U.S. Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association, as the trustee (the “Trustee”), as supplemented by the Officer’s Certificate, dated May 13, 2024, of Agree LP and the Parent Guarantor (the “Officer’s Certificate,” and together with the Base Indenture, the “Indenture”). The Notes will be guaranteed by the Parent Guarantor and each Subsidiary Guarantor, including the Texas Guarantor (the “Guarantee”).

 

On May 5, 2023, the Parent Guarantor, Agree LP and the Subsidiary Guarantors filed a Registration Statement on Form S-3ASR (Registration No. 333-271668) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and on May 6, 2024, the Parent Guarantor, Agree LP and the Subsidiary Guarantors filed a Post-Effective Amendment No. 1 to such Registration Statement with the Commission (such Registration Statement as amended, the “Registration Statement”). The offer and sale of the Notes and the Guarantee are registered under the Registration Statement.

 

Capitalized terms used but not defined herein have the meanings given such terms in the Underwriting Agreement.

 

 

Agree Realty Corporation

May 13, 2024

Page 2

 

For purposes of the opinions we express below, we have examined the originals or copies, certified or otherwise identified, of: (i) the certificate of formation and operating agreement, each as amended to date, of the Texas Guarantor; (ii) the Registration Statement; (iii) Agree LP’s preliminary prospectus supplement dated May 6, 2024 and filed with the Commission on May 6, 2024; (iv) Agree LP’s Free Writing Prospectuses, each dated May 6, 2024 and filed with the Commission on May 6, 2024; (v) Agree LP’s final prospectus supplement, dated May 6, 2024 and filed with the Commission on May 6, 2024; (vi) the Underwriting Agreement; (vii) the Indenture; (viii) the Guarantee; and (ix) the limited liability company records of the Texas Guarantor, including minute books of the Texas Guarantor, certificates of public officials and of representatives of the Texas Guarantor, statutes and other instruments and documents as we considered appropriate for purposes of the opinions hereafter expressed. In giving such opinions, we have relied upon certificates of officers of the Texas Guarantor and of public officials with respect to the accuracy of the material factual matters contained in such certificates.

 

In making our examination, we have assumed and have not verified (i) that all signatures on documents examined by us are genuine, (ii) the legal capacity of all natural persons, (iii) the authenticity of all documents submitted to us as originals, (iv) the conformity to the original documents of all documents submitted to us as copies thereof, and (v) that all other information submitted to us was accurate and complete.

 

Our opinion in paragraph 1 below is based solely upon certificates of public officials issued by the State of Texas.

 

Based on the foregoing, and subject to the assumptions, exceptions and qualifications set forth herein, we are of the opinion that:

 

1.            The Texas Guarantor is validly existing and in good standing under the laws of the State of Texas.

 

2.            The Texas Guarantor has the limited liability company power to execute, deliver and perform its obligations under the Guarantee.

 

3.            All necessary limited liability company action has been taken by the Texas Guarantor to authorize its execution, delivery and performance of the Guarantee.

 

4.            The Guarantee will be duly issued when issued by the Texas Guarantor.

 

The opinions expressed herein are limited to the laws of the State of Texas 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 the applicability or effect of any federal or state securities laws, including the securities laws of the State of Texas, federal or state laws regarding fraudulent transfers or the laws, codes or regulations of any municipality or other local jurisdiction. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Texas, we do not express any opinion on such matter.

 

 

 

Agree Realty Corporation

May 13, 2024

Page 3

 

We hereby consent to the filing of this opinion as Exhibit 5.4 to the Parent Guarantor’s Current Report on Form 8-K. In giving this consent, we do not hereby admit 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.

  

	Very truly yours,
	/s/ Porter Hedges LLP
	PORTER HEDGES LLP

 

 

v3.24.1.1.u2

Cover	May 13, 2024
Document Type	8-K
Amendment Flag	false
Document Period End Date	May 13, 2024
Entity File Number	1-12928
Entity Registrant Name	AGREE REALTY CORPORATION
Entity Central Index Key	0000917251
Entity Tax Identification Number	38-3148187
Entity Incorporation, State or Country Code	MD
Entity Address, Address Line One	32301 Woodward Avenue
Entity Address, City or Town	Royal Oak
Entity Address, State or Province	MI
Entity Address, Postal Zip Code	48073
City Area Code	248
Local Phone Number	737-4190
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	false
Common Stock [Member]
Title of 12(b) Security	Common Stock, $0.0001 par value
Trading Symbol	ADC
Security Exchange Name	NYSE
Depositary Shares [Member]
Title of 12(b) Security	Depositary Shares, each representing one-thousandth of a share of 4.25% Series A Cumulative Redeemable Preferred Stock, $0.0001 par value
Trading Symbol	ADCPrA
Security Exchange Name	NYSE

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