Agree Realty Corp 8-K, filed Sep 22, 2026
Agree Realty Corp (ADC)
8-K
2026-09-22
For: 2026-09-17
View Original
Added on
September 22, 2026
About this 8-K
Agree Realty Corp filed this 8-K on September 22, 2026, reporting on events of September 17, 2026.
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.03: New debt or off-balance-sheet obligation
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
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): September 17, 2026
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of incorporation)
| (Commission file number) | (I.R.S. Employer Identification No.) | ||||
| (Address of principal executive offices) | (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:
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||
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 September 22, 2026, 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 $400 million aggregate principal amount of its 5.650% Notes due 2036 (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 September 22, 2026, 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 an underwriting agreement (the “Underwriting Agreement”) among the Issuer, the Guarantors and the underwriters named therein (the “Underwriters”) filed as Exhibit 1.1 to this Current Report on Form 8-K, the purchase price paid by the underwriters for the Notes was 97.847% 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 2.900% Notes due 2030, the Issuer’s 2.000% Notes due 2028, the Issuer’s 4.800% Notes due 2032, the Issuer’s 2.600% Notes due 2033, the Issuer’s 5.625% Notes due 2034 and the Issuer’s 5.600% Notes due 2035. 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 5.650% per annum. Interest is payable on April 15 and October 15 of each year, beginning April 15, 2027, until the Notes’ maturity date of October 15, 2036.
Prior to October 15, 2036 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 July 15, 2036 (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.
On September 17, 2026, the Issuer entered into the Underwriting Agreement with the Guarantors and the Underwriters, relating to the underwritten public offering of $400,000,000 aggregate principal amount of the Issuer’s 5.650% Notes due 2036.
A copy of the Underwriting Agreement is filed herewith as Exhibit 1.1 to this Current Report on Form 8-K and is hereby incorporated herein by reference. The summary of the Underwriting Agreement set forth above is qualified in its entirety by reference to Exhibit 1.1.
The offering closed on September 22, 2026 and resulted in net proceeds to the Issuer of approximately $390.1 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. 333-295307) which became effective upon filing with the Securities and Exchange Commission (the “Commission”) on April 24, 2026, (ii) the base prospectus included in the shelf registration statement and (iii) the prospectus supplement dated September 17, 2026, 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 and 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 | |||||||
| 1.1 | ||||||||
| 4.1 | ||||||||
| 4.2 | ||||||||
| 4.3 | ||||||||
| 4.4 | ||||||||
| 5.1 | ||||||||
| 5.2 | ||||||||
| 5.3 | ||||||||
| 5.4 | ||||||||
| 23.1 | ||||||||
| 23.2 | ||||||||
| 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: September 22, 2026 | By: | /s/ Peter Coughenour | |||||||||
| Name: | Peter Coughenour | ||||||||||
| Title: | Chief Financial Officer and Secretary | ||||||||||
Exhibit 1.1
AGREE LIMITED PARTNERSHIP
$400,000,000 5.650% Notes due 2036
UNDERWRITING AGREEMENT
September 17, 2026
PNC Capital Markets LLC
300 Fifth Avenue, 10th Floor
Pittsburgh, Pennsylvania 15222
J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
U.S. Bancorp Investments, Inc.
214 North Tryon St., 26th Floor
Charlotte, NC 28202
Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, North Carolina 28202
As Representatives of the several Underwriters named in Schedule I
Ladies and Gentlemen:
Agree Limited Partnership, a Delaware limited partnership (the “Issuer”), Agree Realty Corporation, a Maryland corporation (the “Parent”), and each subsidiary of the Parent listed on Schedule III hereto as being a Subsidiary Guarantor (such subsidiaries, collectively, the “Subsidiary Guarantors” and, together with the Parent, each, a “Guarantor” and, collectively, the “Guarantors”), confirm their agreement with each of the Underwriters named in Schedule I hereto (collectively, the “Underwriters,” which term shall also include any underwriter hereinafter substituted as provided in Section 11 hereof), for whom PNC Capital Markets LLC, J.P. Morgan Securities LLC, U.S. Bancorp Investments, Inc. and Wells Fargo Securities, LLC are acting as representatives (in such capacity, if and as applicable, the “Representatives”) with respect to the sale by the Issuer and the purchase by the Underwriters, acting severally and not jointly, of $400,000,000 aggregate principal amount of the Issuer’s 5.650% Notes due 2036 (the “Notes”), each to be issued pursuant to an indenture, dated August 17, 2020, as supplemented by an officer’s certificate to be dated September 22, 2026 (as amended and supplemented, the “Indenture”), among the Issuer, the Parent, in its capacity 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”), and guaranteed by the Guarantors. The respective amount of the Notes to be purchased by the several Underwriters is set forth opposite their names on Schedule I hereto.
1. Registration Statement and Prospectus. The Issuer and the Parent have prepared and filed on April 24, 2026 with the United States Securities and Exchange Commission (the “Commission”) in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Act”), a shelf registration statement on Form S-3 (File No. 333-295307) under the Act (“Registration Statement 333-295307”), including a combined prospectus contained therein (the “Basic Prospectus”), relating to the issuance and sale of certain debt securities to be issued by the Issuer, including the Notes, and guarantees of debt securities of the Issuer by the Parent (the “Parent Guarantee”) and certain of the Guarantors (the “Guarantees”). The Issuer has filed with, or transmitted for filing to, or shall promptly hereafter file with or transmit for filing to, the Commission a supplement to the prospectus included in such registration statement (the “Prospectus Supplement”) specifically relating to the Notes and the plan of distribution thereof pursuant to Rule 424. Registration Statement 333-295307 was automatically effective upon filing pursuant to Rule 462(e) under the Act. Except where the context otherwise requires, Registration Statement 333-295307, on each date and time that such registration statement and any post-effective amendment or amendments thereto, became or becomes effective (each, an “Effective Date”), including all exhibits filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) and deemed part of such amended registration statement by virtue of Rule 430B (the “Rule 430B Information”), collectively, are herein called the “Registration Statement,” and the Basic Prospectus, as supplemented by the final Prospectus Supplement, in the form first used by the Issuer in connection with confirmation of sales of the Notes, is herein called the “Prospectus”; and the term “Preliminary Prospectus” means each preliminary form of the Prospectus Supplement used in connection with the offering of the Notes that omitted Rule 430B Information, including the related Basic Prospectus in the form first filed by the Issuer and the Parent pursuant to Rule 424(b). The Basic Prospectus together with the Preliminary Prospectus, as amended or supplemented, immediately prior to the Applicable Time is hereafter called the “Pricing Prospectus,” and any “issuer free writing prospectus” (as defined in Rule 433) relating to the Notes is hereafter called an “Issuer Free Writing Prospectus.” The “Applicable Time” shall mean 2:30 p.m. (Eastern Time) on September 17, 2026 or such other time as agreed by the Issuer and the Representatives. The Pricing Prospectus, as supplemented by the Issuer Free Writing Prospectuses, if any, listed in Schedule II hereto or that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package is hereafter collectively called the “Disclosure Package.” Any reference in this Agreement to the Registration Statement, the Disclosure Package, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act (the “Incorporated Documents”), as of each Effective Date or the Applicable Time or the date of the Prospectus, as the case may be (it being understood that the several specific references in this Agreement to documents incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus are for clarifying purposes only and are not meant to limit the inclusiveness of any other definition herein). For purposes of this Agreement, all references to the Registration Statement, the Disclosure Package or the Prospectus or any amendment or supplement thereto shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
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All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,” “stated” or “described” in the Registration Statement, the Disclosure Package or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, the Disclosure Package or the Prospectus shall be deemed to include the filing after the Applicable Time of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder (collectively, the “Exchange Act”), which is or is deemed to be incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus, as the case may be.
2. Agreement to Sell and Purchase.
(a) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Issuer agrees to issue and sell to each Underwriter, severally and not jointly, and each Underwriter agrees to purchase from the Issuer, at a purchase price of 97.847% of the principal amount of the Notes, plus accrued interest, if any, from September 22, 2026 to the Closing Date, the respective principal amounts of Notes set forth opposite their respective names on Schedule I hereto.
3. Offering by Underwriters. It is understood that the Underwriters propose to offer the Notes for sale to the public as soon after this Agreement has become effective as in their judgment is advisable and initially to offer the Notes upon the terms set forth in the Prospectus.
The Underwriters represent and agree that, unless they have or shall have obtained, as the case may be, the prior written consent of the Issuer, the Underwriters have not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 (a “Free Writing Prospectus”) required to be filed by the Issuer with the Commission or retained by the Issuer under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of any Free Writing Prospectuses listed in Schedule II hereto and any electronic road show.
4. Delivery of the Notes and Payment Therefor. Delivery of and payment for the Notes shall be made at 10:00 a.m., New York City time, on September 22, 2026 or at such time on such later date not more than five (5) Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by mutual written agreement of the Representatives and the Issuer (such date and time of delivery and payment for the Notes being herein called the “Closing Date”) (or at such other time on the same or on such other date, in any event not later than the third Business Day thereafter, as the Representatives and the Issuer may agree in writing). Delivery of the Notes shall be made against payment by the Underwriters of the purchase price thereof, to or upon the order of the Issuer by wire transfer payable in immediately available funds to an account specified by the Issuer. The Notes will each be delivered to the Representatives through the facilities of The Depository Trust Company
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(“DTC”). The Notes shall each be global notes registered in the name of Cede & Co., as nominee for DTC. The interests of beneficial owners of the Notes will be represented by book entries on the records of DTC and participating members thereof. The number and denominations of definitive notes so delivered shall be as specified by DTC. The definitive notes for the Notes will be made available for inspection by the Representatives at the offices of Honigman LLP, not later than 5:00 p.m., New York City time, on the Business Day before the Closing Date, or such other date, time and place as the Representatives and the Issuer may agree.
5. Agreements of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, agree with each Underwriter as follows:
(a) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Notes may commence, each of the Issuer and the Guarantors will use its best efforts to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, immediately after such post-effective amendment has become effective.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would (x) include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Issuer and the Guarantors will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Issuer and the Guarantors will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Issuer, the Guarantors, their respective affiliates or any filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose or any examination pursuant to Section 8(e) of the Act relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Notes; (iii) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Issuer’s or any Guarantor’s condition (financial or other), business, prospects, properties, net worth or results of
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operations, or of the happening of any event, which results in any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Issuer and the Guarantors will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) On request, the Issuer and the Guarantors will furnish to the Representatives and counsel to the Underwriters, without charge: (i) one (1) signed copy of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement; (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as the Representatives may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) one (1) copy of the exhibits to the Incorporated Documents.
(e) Neither the Issuer nor any Guarantor will file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which upon filing becomes an Incorporated Document, of which the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Issuer and the Guarantors will give the Representatives notice of its intention to make any other filing pursuant to the Exchange Act from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing.
(f) After the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), each of the Issuer and the Guarantors will file promptly all reports and any definitive proxy or information statements required to be filed by the Issuer or the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any Issuer Free Writing Prospectus as each Underwriter may request. Each of the Issuer and the Guarantors consents to the use of the
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Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealers. If during such period of time: (i) any event shall occur as a result of which, in the judgment of the Issuer and the Guarantors, or in the opinion of counsel for the Underwriters, the Prospectus as supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading; or (ii) if it is necessary to supplement the Prospectus or amend the Registration Statement (or to file under the Exchange Act any document which, upon filing, would become an Incorporated Document) in order to comply with the Act, the Exchange Act or any other law, the Issuer and the Guarantors will promptly notify the Representatives of such event and forthwith prepare and, subject to the provisions of paragraph (e) above, file with the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Issuer and the Representatives agree that the Prospectus should be amended or supplemented, the Issuer, if requested by the Representatives, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(g) Each of the Issuer and the Guarantors will: (i) cooperate with the Underwriters and their counsel in connection with the registration or qualification of the Notes for offering and sale by the Underwriters and by dealers under the securities or blue sky laws of such jurisdictions as the Underwriters may designate; (ii) maintain such qualifications in effect so long as required for the distribution of the Notes; and (iii) file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall the Issuer or any Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject.
(h) Unless the Issuer or the Guarantors have or shall have obtained the prior written consent of the Representatives, each of the Issuer and the Guarantors has not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Issuer or the Guarantors with the Commission or retained by the Issuer or the Guarantors under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses listed in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Issuer and the Guarantors is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Guarantors agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements
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of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Issuer and the Guarantors will make generally available to their security holders and to the Underwriters as soon as practicable, but in no event later than fifteen (15) months after the end of the Parent’s current fiscal quarter, a consolidated earnings statement of the Parent, which need not be audited, covering a 12-month period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158.
(j) During the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Issuer and the Guarantors will furnish to the Underwriters: (i) as soon as available, if requested, a copy of each report of the Parent mailed to stockholders or filed with the Commission that is not publicly available on EDGAR or the Parent’s website; and (ii) from time to time such other information concerning the Issuer or the Guarantors as the Representatives may reasonably request.
(k) The Issuer and the Guarantors shall reimburse the Underwriters for accountable, reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel for the Underwriters) actually incurred by the Underwriters in connection herewith if this Agreement is terminated pursuant to any provisions hereof or if this Agreement is terminated by the Representatives because of any inability, failure or refusal on the part of the Issuer or the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement.
(l) The Issuer will apply the net proceeds from the sale of the Notes in the manner specified in the Registration Statement, the Disclosure Package and the Prospectus under the heading “Use of Proceeds.”
(m) If Rule 430A, 430B or 430C is employed, the Issuer will timely file the Prospectus pursuant to Rule 424(b) and will advise the Representatives of the time and manner of such filing.
(n) Neither the Issuer nor any affiliate of the Issuer has taken, nor will the Issuer or any affiliate of the Issuer take, directly or indirectly, any action designed to, or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of the Notes.
(o) The Parent will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”), so long as its Board of Directors deems it in the best interest of the Parent’s stockholders to remain so qualified.
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(p) Each of the Issuer and the Guarantors will use all reasonable best efforts to do or perform all things required to be done or performed by the Issuer and the Guarantors prior to the Closing Date to satisfy all conditions precedent to the delivery of the Notes pursuant to this Agreement.
(q) Neither the Issuer nor the Guarantors will, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Issuer or the Guarantors or any affiliate of the Issuer or the Guarantors, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position (within the meaning of Section 16 of the Exchange Act), on any debt securities or guarantees thereon (other than the Notes, the Guarantees or pursuant to the commercial paper program described in the Registration Statement); or publicly announce an intention to effect any such transaction, until after the Closing Date.
(r) Each of the Issuer and the Guarantors will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), and will use its reasonable best efforts to cause its directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes-Oxley Act.
(s) The Issuer and the Guarantors will file any Issuer Free Writing Prospectus to the extent required by Rule 433 within the time period required by such rule. The Issuer will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433(g).
6. Representations and Warranties of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, represent, warrant and covenant to each Underwriter as follows:
(a) The Basic Prospectus and each Preliminary Prospectus, if any, included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424, complied when so filed in all material respects with the provisions of the Act.
(b) No order preventing or suspending the use of the Preliminary Prospectus has been issued by the Commission, and the Preliminary Prospectus included in the Disclosure Package, at the time of filing thereof, complied in all material respects with the Act, and the Preliminary Prospectus, as of its date and as of the date hereof, did not, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representation and warranty contained in this Section 6(b) does not apply to statements in or omissions from the Preliminary Prospectus made in reliance upon and in conformity with the Underwriters Content (as defined below).
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(c) (i) At the original effectiveness of the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Issuer or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 under the Act, and (iv) as of the Applicable Time, the Parent was and is a “well-known seasoned issuer” (as defined in Rule 405).
(d) The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Notes and the Guarantees have been and remain eligible for registration by the Issuer and the Guarantors on such automatic shelf registration statement. The Registration Statement has become effective under the Act. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Act against the Issuer or any Guarantor or related to the offering of the Notes has been initiated or, to the knowledge of the Issuer and the Guarantors, threatened by the Commission; the Registration Statement, as of the date hereof, and any post-effective amendment thereto, as of its applicable effective date, and at each deemed effective date with respect to the Underwriters pursuant to paragraph (f)(2) of Rule 430B, complied and will comply in all material respects with the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. As of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Issuer nor any Guarantor has received from the Commission any notice objecting to the use of the shelf registration statement form. On the date that the Registration Statement, any post-effective amendment or amendments thereto became or will become effective and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act. The Indenture has been qualified under the Trust Indenture Act. The representation and warranty contained in this Section 6(d) does not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) statements in or omissions from the Registration Statement, the Disclosure Package or the Prospectus made in reliance upon and in conformity with the Underwriters Content.
(e) (i) The Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not at the Applicable Time and will not on the Closing Date contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to
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statements in or omissions from the Disclosure Package made in reliance upon and in conformity with the Underwriters Content.
(f) (i) At the earliest time after the filing of the Registration Statement that the Issuer or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Notes and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Parent was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Parent be considered an Ineligible Issuer.
(g) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any Incorporated Document and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with the Underwriters Content.
(h) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder. No such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(i) (i) The Indenture has been duly and validly authorized by the Issuer and, when executed and delivered in accordance with its terms by each of the parties thereto, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; (ii) the Notes have been duly and validly authorized and, when executed and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement on the Closing Date, will be validly issued pursuant to the Indenture, will constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus; and (iii) each Guarantee has been duly and validly authorized and will on the Closing Date constitute the valid and legally binding obligation of the applicable Guarantor enforceable in accordance with its terms, except as the enforcement thereof may be limited by
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bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general equitable principles, will be entitled to the benefits of the Indenture and will conform in all material respects to the description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus.
(j) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), there are no persons with registration or other similar rights to have any equity or debt securities, including securities which are convertible into or exchangeable for equity securities, registered pursuant to the Registration Statement or otherwise registered by the Issuer under the Act (other than those that have been waived).
(k) The Parent is a corporation and the Issuer is a limited partnership, each of which is duly organized, validly existing and in good standing under the laws of the state of its formation, with full corporate or partnership power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify would not reasonably be expected to have a material adverse effect on the condition (financial or other), prospects, earnings, business, properties, net worth or results of operations of the Parent and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
(l) Each Subsidiary Guarantor and each of the other subsidiaries of the Parent (other than the Issuer) is a corporation, limited liability company, limited partnership or trust, as applicable, duly organized, validly existing and in good standing under the laws of the state of its formation, as set forth on Schedule III hereto, except where the failure to be in good standing would not result in a Material Adverse Effect, with full corporate, limited liability company, partnership or trust power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify or be in good standing would not reasonably be expected to have a Material Adverse Effect.
(m) Neither the Parent, nor the Issuer nor any of their subsidiaries does any business in Cuba.
(n) Other than as set forth on Schedule III hereto, neither the Issuer nor any Guarantor has any subsidiary or subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business association. The issued shares of capital stock of each of the Guarantor’s subsidiaries (including the equity interests of the Issuer) have been duly authorized and validly issued, are fully paid and nonassessable and are owned legally and beneficially by such Guarantor free and clear of any security interests,
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liens, encumbrances, equities or claims, except as disclosed in the Registration Statement, the Disclosure Package, and the Prospectus.
(o) There are no legal or governmental actions, suits, inquiries, investigations or proceedings pending or, to the knowledge of the Issuer or any Guarantor, threatened, against the Issuer, any Guarantor or any of their subsidiaries, or to which the Issuer, any Guarantor or any properties of the Issuer, the Guarantors or any of their subsidiaries is subject, that (A) are required to be described in the Registration Statement, the Disclosure Package or the Prospectus but are not described as required; (B) could reasonably be expected to have a Material Adverse Effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby; or (C) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). There are no statutes, regulations, off-balance sheet transactions, contingencies or agreements, contracts, indentures, leases or other instruments or documents of a character that are required to be described in the Registration Statement or the Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement or any Incorporated Document that are not described, filed or incorporated as required by the Act or the Exchange Act (and the Pricing Prospectus contains or incorporates by reference in all material respects the same description of the foregoing matters contained in the Prospectus). The statements in the Registration Statement, the Disclosure Package, and the Prospectus under the heading “Material Federal Income Tax Considerations” fairly summarize the matters therein described.
(p) None of the Issuer, the Guarantors or any of their subsidiaries is: (A) in violation of (i) its respective articles of incorporation, partnership agreement, operating agreement or by-laws (or analogous governing instruments), (ii) any law, ordinance, administrative or governmental rule or regulation applicable to the Issuer, the Guarantors or any of their subsidiaries, except in the case of clause (ii), which violation would not reasonably be expected to have a Material Adverse Effect, or (iii) any decree of any court or governmental agency or body having jurisdiction over the Issuer, the Guarantors or their subsidiaries; or (B) except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), in default in any material respect in the performance of any obligation, agreement, condition or covenant (financial or otherwise) contained in any bond, debenture, note or any other evidence of indebtedness or in any Material Agreement (as defined below), indenture, lease or other instrument to which the Issuer, the Guarantors or any of their subsidiaries is a party or by which the Issuer, Guarantors or any of their subsidiaries or any of their respective properties may be bound, and, to the Issuer’s and the Guarantor’s knowledge, no such default is expected. All agreements, contracts or other arrangements that are material to the Issuer and the Guarantors are set forth on Schedule IV of this Agreement (the “Material Agreements”).
(q) (A) As of the date of this Agreement, the Parent and its respective subsidiaries have good and marketable title in fee simple to, all of the real properties (the “Properties”) described in the Registration Statement, Disclosure Package and the Prospectus. To the Issuer’s and the Guarantors’ knowledge, none of the Issuer, the Guarantors or any of
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their subsidiaries is in violation of any municipal, state or federal law, rule or regulation concerning any of their Properties, which violation would reasonably be expected to have a Material Adverse Effect; (B) to the Issuer’s and the Guarantors’ knowledge, each of the Properties complies with all applicable zoning laws, ordinances and regulations in all material respects and, if and to the extent there is a failure to comply, such failure does not materially impair the value of any of such Properties and will not result in a forfeiture or reversion of title thereof; (C) none of the Issuer, the Guarantors or any of their subsidiaries has received from any governmental authority any written notice of any condemnation of, or zoning change affecting any of, the Properties, and neither the Issuer nor any Guarantor knows of any such condemnation or zoning change which is threatened and which, in each case, if consummated would reasonably be expected to have a Material Adverse Effect; (D) the leases under which the Guarantors or any of their subsidiaries leases the Properties as lessor (the “Leases”) are in full force and effect and have been entered into in the ordinary course of business of such entity, except as would not reasonably be expected to have a Material Adverse Effect; (E) each Guarantor and each of their subsidiaries has complied with its respective obligations under the Leases in all material respects and the Guarantors do not know of any default by any other party to the Leases which, alone or together with other such defaults, would reasonably be expected to have a Material Adverse Effect; and (F) all liens, charges, encumbrances, claims or restrictions on or affecting the assets (including the Properties) of the Guarantors and their subsidiaries that are required to be disclosed in the Registration Statement, the Disclosure Package and the Prospectus are disclosed therein.
(r) Neither the issuance and sale of the Notes, the execution, delivery or performance of this Agreement by the Issuer or the Guarantors, nor the consummation by the Issuer or the Guarantors of the transactions contemplated hereby (including the application of the proceeds from the sale of the Notes as described in the Registration Statement, the Disclosure Package and the Prospectus): (A) requires any consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may be required for the registration of the Notes under the Act and compliance with the securities or blue sky laws of various jurisdictions), or conflicts or will conflict with or constitutes or will constitute a breach or violation of, or a default under, the articles of incorporation or by-laws (or analogous governing documents) of the Issuer, the Guarantors or any of their subsidiaries; or (B) (i) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Issuer, the Guarantors or any of their subsidiaries is a party or by which the Issuer or any Guarantors or any properties of the Issuer or the Guarantors or any of their subsidiaries may be bound, except as would not reasonably be expected to have a Material Adverse Effect, or (ii) violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Issuer, any Guarantor or any of their subsidiaries or any properties of the Issuer, the Guarantors or any of their subsidiaries, or (iii) will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Issuer, the Guarantors or any of their subsidiaries pursuant to the terms of any agreement or instrument to which the Issuer, any Guarantor or any of their subsidiaries is a party or by which the Issuer, the Guarantors or any of
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their subsidiaries may be bound, or to which any property or assets of the Issuer, the Guarantors or any of their subsidiaries is subject.
(s) To the Issuer’s and the Guarantors’ knowledge, Grant Thornton LLP, who has certified or shall certify the financial statements and schedules included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), is and was, as of the date of this Agreement and during the periods covered by the financial statements on which Grant Thornton LLP reported, an independent registered public accounting firm with respect to the Parent as required by the Act and the Exchange Act and the applicable published rules and regulations thereunder and by the Public Company Accounting Oversight Board (“PCAOB”).
(t) The historical financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus (and any amendment or supplement thereto), present fairly in all material respects the financial position, results of operations and changes in financial position of the Parent and its subsidiaries on the basis stated in the Registration Statement and the Incorporated Documents at the respective dates or for the respective periods to which they apply. Such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein. The other historical financial and statistical information and data included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus (and any amendment or supplement thereto) are accurately presented and prepared on a basis consistent with the audited financial statements, included or incorporated in the Registration Statement, the Disclosure Package and the Prospectus, and the books and records of the Parent and its subsidiaries. The financial statements of the businesses or properties acquired or proposed to be acquired, if any, included in, or incorporated by reference into, the Registration Statement, the Disclosure Package or the Prospectus present fairly in all material respects the information set forth therein, have been prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a consistent basis and otherwise have been prepared in accordance with the applicable financial statement requirements of Rule 3-05 or Rule 3-14 of Regulation S-X with respect to real estate operations acquired or to be acquired. Any pro forma financial statements and other pro forma financial information included, or incorporated by reference in, the Registration Statement, Disclosure Package and the Prospectus include assumptions that provide a reasonable basis for presenting the significant effects directly attributable to the transactions and events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma adjustments reflect the proper application of those adjustments to the historical financial statement amounts in the pro forma financial statements included in the Registration Statement, the Disclosure Package and the Prospectus. Any pro forma financial statements included in the Registration Statement, the Disclosure Package and the Prospectus comply as to form in all material respects with the applicable accounting requirements of Regulation S-X under the Act. The Issuer and the Guarantors have filed with the Commission all financial statements, together with related schedules and notes, required to be filed pursuant to Regulation S-X under the Act. Any disclosures contained or incorporated in the Registration Statement, the Disclosure Package or
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the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G under the Exchange Act and Item 10 of Regulation S-K of the Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance in all material respects with the Commission’s rules and guidelines applicable thereto.
(u) (i) The Issuer has the partnership power to issue, sell and deliver the Notes as provided herein; the execution and delivery of, and the performance by the Issuer of its obligations under, this Agreement have been duly and validly authorized by the Issuer, and this Agreement has been duly executed and delivered by the Issuer and constitutes the valid and legally binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general principles of equity and to the extent that rights to indemnity and contribution hereunder may be limited by federal or state securities laws; (ii) the Guarantors have the corporate or limited liability company power, as applicable, to issue and deliver the Guarantees as provided herein; the execution and delivery of, and the performance by the Guarantors of their respective obligations under, this Agreement have been duly and validly authorized by the respective Guarantors, and this Agreement has been duly executed and delivered by the Guarantors and constitutes the valid and legally binding agreement of the Guarantors, enforceable against the Guarantors in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general principles of equity and to the extent that rights to indemnity and contribution hereunder may be limited by federal or state securities laws.
(v) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), subsequent to the respective dates as of which such information is given in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), (A) none of the Issuer, the Guarantors or any of their subsidiaries has incurred any liability or obligation (financial or other), direct or contingent, or entered into any transaction (including any off-balance sheet activities or transactions), not in the ordinary course of business, that is material to the Parent and its subsidiaries, as a whole; (B) there has not been any material change in the capital stock, or partnership interests, as the case may be, or material increase in the short-term debt or long-term debt (including any off-balance sheet activities or transactions), of any of the Issuer or the Guarantors or the occurrence of or any development which may reasonably be expected to result in a Material Adverse Effect; and (C) except for regular quarterly dividends on the Common Stock in amounts per share that are consistent with the past practice, there has been no dividend or distribution of any kind declared, paid or made by the Parent on any class of its capital stock.
(w) The Issuer, the Guarantors and each of their subsidiaries has good and marketable title to all property (real and personal) described in the Registration Statement, the
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Disclosure Package and the Prospectus as being owned by each of them (including the Properties), free and clear of all liens, claims, security interests or other encumbrances that would materially and adversely affect the value thereof or materially interfere with the use made or presently contemplated to be made thereof by them as described in the Registration Statement, the Disclosure Package and the Prospectus, except such as are described in the Registration Statement, the Disclosure Package and the Prospectus, or in any document filed as an exhibit to the Registration Statement, and each property described in the Registration Statement, the Disclosure Package and the Prospectus as being held under lease by the Issuer or the Guarantors or any of their subsidiaries is held by such entity under a valid, subsisting and enforceable lease.
(x) The “significant subsidiaries” of the Parent as defined in Section 1-02(w) of Regulation S-X of the Act are set forth in Schedule III hereto (the “Significant Subsidiaries”).
(y) None of the Issuer or the Guarantors has distributed and, prior to the later to occur of (x) the Closing Date and (y) completion of the distribution of the Notes, will distribute, any offering material in connection with the offering and sale of the Notes other than the Registration Statement, the Disclosure Package or the Prospectus. None of the Issuer or the Guarantors has, directly or indirectly: (i) taken any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of the Notes; or (ii) since the filing of the Registration Statement (A) sold, bid for, purchased, or paid anyone any compensation for soliciting purchases of, the Notes or (B) except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Issuer.
(z) The Issuer, the Guarantors and each of their subsidiaries possess all certificates, permits, licenses, franchises and authorizations of governmental or regulatory authorities (the “permits”) as are necessary to own their respective properties and to conduct their respective businesses in the manner described in the Registration Statement, the Disclosure Package and the Prospectus, where such failure to possess could have, individually or in the aggregate, a Material Adverse Effect, subject to such qualifications as may be set forth in the Registration Statement, the Disclosure Package and the Prospectus. The Issuer, the Guarantors and each of their subsidiaries has fulfilled and performed all of their respective material obligations with respect to such permits, and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or which would result in any other material impairment of the rights of the holder of any such permit, subject in each case to such qualification as may be set forth in the Registration Statement, the Disclosure Package and the Prospectus.
(aa) The Parent has established and maintains disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) that are designed to ensure that information required to be disclosed by the Parent in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the
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time periods specified in the Commission’s rules and forms and is accumulated and communicated to the Parent’s management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure; and the Parent maintains a system of internal control over financial reporting sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and which includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Parent, including its consolidated subsidiaries, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles and that receipts and expenditures of the Issuer, the Guarantors and each of their subsidiaries are being made only in accordance with the authorization of management, (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisitions, use or dispositions of assets that could have a material effect on the financial statements, and (iv) provide reasonable assurance that the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto. The Parent’s disclosure controls and procedures have been evaluated for effectiveness as of the end of the period covered by the Parent’s most recently filed periodic report on Form 10-Q or 10-K, as the case may be, which precedes the date of the Prospectus and were effective in all material respects to perform the functions for which they were established. Based on the most recent evaluation of its internal control over financial reporting, the Parent was not aware of (i) any material weaknesses in the design or operation of internal control over financial reporting, except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, or (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Parent’s internal control over financial reporting. There has been no change in the Parent’s internal control over financial reporting that has occurred during its most recently completed fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Parent’s internal control over financial reporting, except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus.
(bb) There is and has been no failure on the part of the Parent or any of the Parent’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act and the rules and regulations promulgated in connection therewith, including, without limitation, Section 402 related to loans to insiders and Sections 302 and 906 related to certifications.
(cc) To the Issuer’s and the Guarantors’ knowledge, none of the Issuer, the Guarantors or any of their subsidiaries nor any employee or agent of the Issuer, any Guarantor or any of their subsidiaries has made any payment of funds of the Issuer or the Guarantors or any of their subsidiaries or received or retained any funds in violation of any law, rule or
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regulation, which payment, receipt or retention of funds is of a character required to be disclosed in the Registration Statement, the Disclosure Package or the Prospectus.
(dd) None of the Issuer, the Guarantors or any of their subsidiaries nor, to the knowledge of the Issuer and the Guarantors, any director, officer, agent, employee or affiliate of the Issuer, the Guarantors or any of their subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Issuer, the Guarantors, their subsidiaries and, to the knowledge of the Issuer and the Guarantors, their affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(ee) The operations of the Issuer, the Guarantors and their subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer, the Guarantors or any of their subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer or the Guarantors, threatened.
(ff) None of the Issuer, the Guarantors, or any of their subsidiaries or, to the knowledge of the Issuer or the Guarantors, any director, officer, agent, employee, affiliate or representative of the Issuer, the Guarantors or any of their subsidiaries is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government, (including, without limitation, the U.S Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council (“UNSC”), the European Union, His Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor is the Issuer, any Guarantor, or any of their respective subsidiaries located, organized or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, Cuba, Iran, North Korea, the Crimea Region of Ukraine, the non-designated controlled areas of Zaporizhzhia and Kherson Regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or in any other country or territory that is the subject of Sanctions (each, a “Sanctioned Country”); and neither the Issuer nor any Guarantor will directly or indirectly use the proceeds of the sale of the Notes hereunder, or lend, contribute or
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otherwise make available such proceeds to any subsidiaries, joint venture partners or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or the target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as Issuer, Guarantor, Underwriter, advisor, investor or otherwise) of Sanctions. For the past ten years, the Issuer, the Guarantors and their respective subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(gg) No labor problem or dispute with the employees of the Issuer or the Guarantors and/or any of their subsidiaries or, to the Issuer’s or Guarantors’ knowledge, any of the Issuer’s or the Guarantors’ or their subsidiaries’ principal suppliers, contractors or customers, exists, is threatened or imminent that could result in a Material Adverse Effect. To the Issuer’s and the Guarantors’ knowledge, no labor problem or dispute with the Issuer’s or the Guarantors’ or their subsidiaries’ tenants exists, is threatened or imminent that could result in a Material Adverse Effect.
(hh) Each of the Issuer, the Guarantors and their subsidiaries has timely filed all foreign, federal, state and local tax returns that are required to be filed, which returns are complete and correct, or has requested extensions thereof (except in any case in which the failure to so file timely would not reasonably be expected to have a Material Adverse Effect and except as set forth in the Registration Statement, the Disclosure Package and the Prospectus) and has paid all material taxes required to be paid by it and any material other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith. The Parent has made appropriate provisions in the Parent’s financial statements that are incorporated by reference into the Registration Statement (or otherwise described in the Registration Statement, the Disclosure Package and the Prospectus) in respect of all federal, state, local and foreign income and franchise taxes for all current or prior periods as to which the tax liability of the Issuer, the Guarantors and their subsidiaries has not been finally determined, except to the extent of any inadequacy that would not reasonably be expected to result in a Material Adverse Effect.
(ii) No holder of any security of the Issuer or any Guarantor has any right to require registration of the Notes or any other security of the Issuer or any Guarantor because of the filing of the Registration Statement or consummation of the transactions contemplated by this Agreement, which right has not been waived in connection with the transactions contemplated by this Agreement.
(jj) The Issuer, the Guarantors and their subsidiaries own or possess all patents, trademarks, trademark registrations, service marks, service mark registrations, trade names, copyrights, licenses, inventions, trade secrets and rights described in the Registration Statement, the Disclosure Package and the Prospectus as being owned by them or necessary for
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the conduct of their respective businesses. Neither the Issuer nor any of the Guarantors is aware of any claim to the contrary or any challenge by any other person to the rights of the Issuer, the Guarantors and their subsidiaries with respect to the foregoing that would reasonably be expected to have a Material Adverse Effect.
(kk) None of the Issuer, the Guarantors or any of their subsidiaries is now, and after sale of the Notes to be sold by the Issuer hereunder and the application of the net proceeds from such sale as described in the Registration Statement, the Disclosure Package and the Prospectus under the caption “Use of Proceeds,” will be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(ll) To the Issuer’s and the Guarantors’ knowledge, the Issuer, the Guarantors, their subsidiaries, the Properties and the operations conducted thereon comply and heretofore have complied with all applicable Environmental Laws, and no expenditures are required to maintain or achieve such compliance, except as disclosed in environmental site assessment reports obtained by the Issuer or the Guarantors on or before the date hereof in connection with the purchase of any of the Properties or in a written summary maintained by the Issuer or the Guarantors of the status of ongoing environmental projects at the Properties, each of which have been directly provided to the Underwriters or their counsel (collectively, the “Environmental Reports”) and except for those circumstances that have not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or as disclosed in the Registration Statement, the Disclosure Package and the Prospectus.
(mm) None of the Issuer, the Guarantors or any of their subsidiaries has at any time and, to the Issuer’s and the Guarantors’ knowledge, no other party has at any time, handled, buried, stored, retained, refined, transported, processed, manufactured, generated, produced, spilled, allowed to seep, leak, escape or leach, or be pumped, poured, emitted, emptied, discharged, injected, dumped, transferred or otherwise disposed of or dealt with, Hazardous Materials (as defined below) on, to, under or from the Properties, except as disclosed in Environmental Reports, the Registration Statement, the Disclosure Package and the Prospectus and except for those circumstances that have not had or would not reasonably be expected to have a Material Adverse Effect. None of the Issuer, the Guarantors or any of their subsidiaries intends to use the Properties or any subsequently acquired properties for the purpose of handling, burying, storing, retaining, refining, transporting, processing, manufacturing, generating, producing, spilling, seeping, leaking, escaping, leaching, pumping, pouring, emitting, emptying, discharging, injecting, dumping, transferring or otherwise disposing of or dealing with Hazardous Materials; provided, however, the tenants of the Issuer and the Guarantors may use Properties for their intended purpose, which may involve the handling, storing and transporting of Hazardous Materials.
To the Issuer’s and the Guarantors’ knowledge, no seepage, leak, escape, leach, discharge, injection, release, emission, spill, pumping, pouring, emptying or dumping of Hazardous Materials into any surface water, groundwater, soil, air or other media on or adjacent to the Properties has occurred, is occurring or is reasonably expected to occur, except as is disclosed in the Environmental Reports or the Registration Statement, the Disclosure Package
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and the Prospectus, and except for those circumstances that would not reasonably be expected to have a Material Adverse Effect.
None of the Issuer, the Guarantors or any of their subsidiaries has received written notice from any Governmental Authority or other person of, or has knowledge of, any occurrence or circumstance which, with notice, passage of time, or failure to act, would give rise to any claim against the Issuer, the Guarantors or any of their subsidiaries under or pursuant to any Environmental Law or under common law pertaining to Hazardous Materials on or originating from the existing Properties or any act or omission of any party with respect to the existing Properties, except as disclosed in the Environmental Reports, or the Registration Statement, the Disclosure Package and the Prospectus and except for those circumstances that would not reasonably be expected to have a Material Adverse Effect.
To the Issuer’s and the Guarantors’ knowledge, none of the Properties is included or proposed for inclusion on any federal, state, or local lists of sites which require or might require environmental cleanup, including, but not limited to, the National Priorities List or CERCLIS List issued pursuant to CERCLA (as defined below) by the United States Environmental Protection Agency or any analogous state list, except as is disclosed in the Environmental Reports or the Registration Statement, the Disclosure Package and the Prospectus and except for those circumstances that would not reasonably be expected to have a Material Adverse Effect.
In the ordinary course of its business, the Parent periodically reviews the effect of Environmental Laws on the business, operations and properties of the Parent and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review, the Parent has reasonably concluded that such associated costs and liabilities would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus.
As used herein, “Hazardous Material” shall include, without limitation, any flammable explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials, asbestos, polychlorinated biphenyls (“PCBs”), petroleum products and by-products and substances defined or listed as “hazardous substances,” “toxic substances,” “hazardous waste,” or “hazardous materials” in any Federal, state or local Environmental Law.
As used herein, “Environmental Law” shall mean all laws, common law duties, regulations or ordinances (including any orders or agreements) of any Federal, state or local governmental authority having or claiming jurisdiction over any of the Properties (a “Governmental Authority”) that are designed or intended to protect the public health and the environment or to regulate the handling of Hazardous Materials, including, without limitation,
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the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.) (“CERCLA”), the Hazardous Material Transportation Act, as amended (49 U.S.C. Section 1801 et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 et seq.), the Federal Water Pollution Control Act, as amended (33 U.S.C. Section 1251 et seq.), and the Clean Air Act, as amended (42 U.S.C. Section 7401 et seq.), and any and all analogous state or local laws.
(nn) Commencing with its taxable year ended December 31, 1994, the Parent has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code, and the Parent’s current and proposed method of operations as described in the Registration Statement, the Disclosure Package and the Prospectus will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2026 and thereafter. No transaction or other event has occurred, and none of the Issuer, the Guarantors, or any of their subsidiaries has taken any action, that would reasonably be expected to cause the Parent not to be able to qualify as a REIT for its taxable year ending December 31, 2026 or future taxable years. Each of the Parent’s direct or indirect subsidiaries that is treated as a corporation for U.S. federal income tax purposes will qualify as a “taxable REIT subsidiary” within the meaning of Section 856(l) of the Code. The Issuer will be treated as a partnership and not as an association taxable as a corporation for U.S. federal income tax purposes.
(oo) The Issuer, the Guarantors and each of their subsidiaries is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged and the value of their properties. All policies of insurance and fidelity or surety bonds insuring the Issuer, the Guarantors or any of their subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect. The Issuer, the Guarantors and each of their subsidiaries are in compliance with the terms of such policies and instruments in all material respects and there are no claims by the Issuer, the Guarantors or any of their subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause, except as would not reasonably be expected to have a Material Adverse Effect. None of the Issuer, the Guarantors or any of their subsidiaries has been refused any insurance coverage sought or applied for, and the Issuer does not have any reason to believe that the Issuer, the Guarantors and each of their subsidiaries will not be able to renew its respective existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue their respective businesses at a cost that would not reasonably be expected to have a Material Adverse Effect.
(pp) The Issuer, the Guarantors and their subsidiaries have title insurance on each of the Properties owned in fee simple in amounts at least equal to the cost of acquisition of such property; with respect to an uninsured loss on any of the Properties, the title insurance shortfall would not reasonably be expected to have a Material Adverse Effect.
(qq) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or pursuant to the terms of the indebtedness described therein), no
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subsidiary of the Issuer or any Guarantor is currently prohibited, directly or indirectly, from paying any dividends to the Issuer or any Guarantor, from making any other distribution on such subsidiary’s capital stock, from repaying to the Issuer or any Guarantor any loans or advances to such subsidiary from the Issuer or any Guarantor, or, except for subsidiaries that are not Subsidiary Guarantors and that own properties encumbered by mortgage debt as of the date hereof, from transferring any of such subsidiary’s assets or property to the Issuer or any Guarantor, or any other subsidiary of the Issuer or any Guarantor.
(rr) There are no transfer taxes or other similar fees or charges under Federal law or the laws of any state, or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the issuance or sale by the Issuer of the Notes.
(ss) Each of the Issuer, the Guarantors and their subsidiaries has fulfilled its obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974 (“ERISA”) and the regulations and published interpretations thereunder with respect to each “plan” (as defined in Section 3(3) of ERISA and such regulations and published interpretations) in which employees of the Issuer, the Guarantors and their subsidiaries are eligible to participate. Each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and such regulations and published interpretations. None of the Issuer, the Guarantors or any of their subsidiaries has incurred any unpaid liability to the Pension Benefit Guaranty Corporation (other than for the payment of premiums in the ordinary course) or to any such plan under Title IV of ERISA.
(tt) The Parent’s authorized capitalization is as set forth in the Registration Statement, the Disclosure Package and the Prospectus.
(uu) The Notes will rank on a parity with all unsecured indebtedness of the Issuer (other than subordinated indebtedness of the Issuer) that is outstanding on the date hereof or that may be incurred hereafter, and senior to all subordinated indebtedness of the Issuer that is outstanding on the date hereof or that may be incurred hereafter.
(vv) The statistical and market related data included in the Registration Statement, the Disclosure Package, and the Prospectus are based on or derived from sources the Issuer and the Guarantors believe to be reliable and accurate as of the respective dates of such documents, and the Issuer and the Guarantors have obtained the written consent to the use of such data from such sources to the extent required.
(ww) Each of the independent directors (or independent director nominees, once appointed, if applicable) named in the Registration Statement, the Disclosure Package and Prospectus satisfies the independence standards established by NYSE and, with respect to members of the Parent’s audit committee, the enhanced independence standards contained in Rule 10A-3(b)(1) promulgated by the Commission under the Exchange Act.
(xx) None of the Issuer nor the Guarantors is required to register as a “broker” or “dealer” in accordance with the provisions of the rules and the Exchange Act and does not,
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directly or indirectly through one or more intermediaries, control or have any other association with (within the meaning of Article I of the Bylaws of the Financial Industry Regulatory Authority (“FINRA”)) any member firm of FINRA. No relationship, direct or indirect, exists between or among the Issuer or the Guarantors, on the one hand, and the directors, officers or stockholders of the Issuer or the Guarantors, on the other hand, which is required by the rules of FINRA to be described in the Registration Statement, the Disclosure Package and the Prospectus, which is not so described.
(yy) Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, (i) none of the Issuer, the Guarantors or any of their subsidiaries has any material lending or similar relationship with any Underwriter or any bank or other lending institution affiliated with any Underwriter; and (ii) the Issuer does not intend to use any of the proceeds from the sale of the Notes by the Issuer hereunder to reduce or retire the balance of any loan or credit facility extended by any affiliate of any Underwriter.
(zz) To the Issuer’s and the Guarantors’ knowledge, with such exceptions as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: there has been no security breach, incident, or other compromise of the Issuer’s, the Guarantors’ or any of their subsidiaries’ information computer systems, networks, and databases (including, without limitation, the personal data and information of their respective customers, employees, suppliers and vendors and any third party data maintained, processed or stored by the Issuer, the Guarantors and each of their subsidiaries, (collectively, “IT Systems and Data”); neither the Issuer, the Guarantors nor any of their subsidiaries have been notified of, or have knowledge of any event or condition that would reasonably be expected to result in, any security breach, incident or other compromise to their IT Systems and Data; the Issuer, the Guarantors and each of their subsidiaries have implemented appropriate physical, technological and administrative controls designed to maintain and protect the integrity, confidentiality and availability of their IT Systems and Data, taking into account the nature, sensitivity and use of such IT Systems and Data, or as required by applicable regulatory standards in all respects; and the Issuer, the Guarantors and each of their subsidiaries are presently in compliance with all applicable laws or statutes, applicable judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority having jurisdiction over the Issuer, the Guarantors or any of their subsidiaries and internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
7. Indemnification and Contribution.
(a) The Issuer and the Guarantors, jointly and severally, agree to indemnify and hold harmless the Underwriters, the directors, officers, employees, affiliates and agents of each Underwriter and each person who controls the Underwriters, within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
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(i) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or in any amendment thereof (including the Rule 430B Information), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statement therein not misleading; (ii) arise out of or are based upon any untrue statement or alleged untrue statement of material fact included in any Preliminary Prospectus, the Disclosure Package or the Prospectus (or any amendment or supplement thereof) or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iii) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Issuer and the Guarantors, jointly and severally, agree to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Issuer and the Guarantors will not be liable in any such case arising in connection with this Section 7 to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with the Underwriters Content. This indemnity agreement will be in addition to any liability that the Issuer and the Guarantors may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the Issuer and each of its directors, the Guarantors and each of the Issuer’s and the Guarantors’ officers who signs the Registration Statement, and each person who controls the Issuer or such Guarantor within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity from the Issuer and the Guarantors to the Underwriters, but only with reference to the Underwriters Content.
(c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party: (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties, except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate
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counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if: (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall in writing authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. In no event will the indemnifying parties be liable for the fees, costs or expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise, or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action), unless such settlement, compromise or consent (x) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (y) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 7 is unavailable to, or insufficient to hold harmless, an indemnified party for any reason, the Issuer and the Guarantors, on the one hand, and the Underwriters, on the other, agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively “Losses”) to which the Issuer, the Guarantors and the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Issuer and the Guarantors, on the one hand, and by the Underwriters, on the other, from the offering of the Notes; provided, however, that in no case shall the Underwriters be responsible for any amount in excess of the underwriting discount or commission applicable to the Notes purchased by the Underwriters hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Issuer and the Guarantors and the Underwriters shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Issuer and the Guarantors, on the one hand, and of the Underwriters, on the other, in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Issuer and the Guarantors shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Prospectus. Relative fault shall be determined by reference to, among other things: (i) whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission
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to state a material fact relates to information provided by the Issuer or a Guarantor, on the one hand, or the Underwriters, on the other; (ii) the intent of the parties and their relative knowledge; (iii) access to information; and (iv) the opportunity to correct or prevent such untrue statement or omission. The Issuer, the Guarantors and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as the Underwriters, and each person who controls the Issuer or a Guarantor within the meaning of either the Act or the Exchange Act, each officer of the Issuer or a Guarantor who shall have signed the Registration Statement and each director of the Issuer or a Guarantor shall have the same rights to contribution as the Issuer or such Guarantor, as applicable, subject in each case to the applicable terms and conditions of this paragraph (d). The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the number of Notes set forth opposite their respective names in Schedule I hereto and not joint.
8. Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase the Notes hereunder are subject to the following conditions:
(a) (i) The Prospectus and any supplement thereto have been filed in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); and any material required to be filed by the Issuer or the Guarantors pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 and (ii) any request of the Commission for additional information (to be included in the Registration Statement, the Disclosure Package or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Subsequent to the Applicable Time, or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto), the Disclosure Package and the Prospectus (exclusive of any amendment thereof), there shall not have occurred any event or development relating to or involving the Issuer and the Guarantors and their subsidiaries or any officer or director of the Issuer or the Guarantors and their subsidiaries which makes any statement made in the Disclosure Package or the Prospectus untrue or which, in the opinion of the Issuer and its counsel or the Representatives and counsel to the Underwriters, requires the making of any addition to or change in the Disclosure Package in order to state a material fact required by the Act or any other law to be stated therein, or necessary in order to make the statements therein not misleading, if amending or supplementing the Disclosure Package to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Notes.
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(c) The Representatives shall have received on the Closing Date an opinion and negative assurance letter included therewith, and tax opinion of Honigman LLP, counsel for the Issuer and the Guarantors, dated as of such date and addressed to the Representatives, in form and substance acceptable to the Representatives.
(d) The Representatives shall have received on the Closing Date an opinion and negative assurance letter of Latham & Watkins LLP, counsel for the Underwriters, dated as of such date and addressed to the Representatives with respect to such matters as the Representatives may request.
(e) The Representatives shall have received on the Closing Date an opinion of Ballard Spahr LLP, Maryland counsel for the Parent and California, Georgia, Maryland and New Jersey counsel for certain of the Guarantors, dated as of such date and addressed to the Representatives, in form and substance acceptable to the Representatives.
(f) The Representatives shall have received on the Closing Date an opinion of Burr & Forman LLP, Florida and North Carolina counsel for certain of the Guarantors, dated as of such date and addressed to the Representatives, in form and substance acceptable to the Representatives.
(g) The Representatives shall have received on the Closing Date an opinion of Porter Hedges LLP, Texas counsel for certain of the Guarantors, dated as of such date and addressed to the Representatives, in form and substance acceptable to the Representatives.
(h) The Representatives shall have received letters addressed to the Underwriters and dated as of the date hereof and the Closing Date from Grant Thornton LLP, an independent registered public accounting firm, substantially in the form heretofore approved by the Representatives; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three (3) Business Days prior to the Closing Date.
(i) (i) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Issuer or the Guarantors, shall be contemplated by the Commission at or prior to the Closing Date; (ii) there shall not have been any change in the capital stock of the Issuer and the Guarantors nor any material increase in the short-term or long-term debt (including any off-balance sheet activities or transactions) of the Issuer and the Guarantors and their subsidiaries (other than in the ordinary course of business) from that set forth or contemplated in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment or supplement thereto); (iii) there shall not have been, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement, the Disclosure Package and Prospectus (or any amendment or supplement thereto), any Material Adverse Effect; (iv) the Issuer and the Guarantors and their subsidiaries shall not have any liabilities or obligations (financial or other), direct or contingent (whether or not in the ordinary course of business), that are material to the Issuer or the Guarantors or their subsidiaries, other than those reflected in the Registration Statement or the
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Disclosure Package and the Prospectus (or any amendment or supplement thereto); and (v) all the representations and warranties of the Issuer and the Guarantors contained in this Agreement shall be true and correct at and as of the Applicable Time and on and as of the Closing Date, as if made at and as of such time or on and as of such date, and the Representatives shall have received a certificate, dated the Closing Date, and signed by either the chief executive officer or chief operating officer and the chief financial officer or similar officer of the Parent on behalf of the Parent, the Issuer and each Subsidiary Guarantor (or such other officers as are acceptable to the Representatives), to the effect set forth in this Section 8(i) and in Section 8(j) hereof.
(j) The Issuer and the Parent shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder, at or prior to the Closing Date.
(k) [reserved].
(l) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of any of the Issuer’s or the Parent’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(m) The Issuer and the Guarantors shall have furnished or caused to be furnished to the Representatives such further certificates and documents as the Representatives shall have reasonably requested.
Any certificate or document signed by any officer of the Parent on behalf of the Issuer or any Guarantor and delivered to the Representatives, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Issuer or such Guarantor, as the case may be, to the Underwriters as to the statements made therein.
If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters and their counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled by the Representatives at, or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the Issuer in writing or by telephone or facsimile confirmed in writing.
With respect to the Closing Date, the documents required to be delivered by this Section 8 shall be delivered at the offices of Latham & Watkins LLP, Attention: Julian Kleindorfer, counsel for the Underwriters, at 355 South Grand Avenue, Suite 100, Los Angeles, California 90071 on or prior to such date.
9. Expenses. The Issuer agrees to pay the following costs and expenses and all other costs and expenses incident to the performance by the Issuer and the Guarantors of their obligations hereunder: (i) the preparation, printing or reproduction, and filing with the
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Commission of the registration statement (including financial statements and exhibits thereto), each Preliminary Prospectus, if any, the Prospectus, each Issuer Free Writing Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus, each Issuer Free Writing Prospectus, the Incorporated Documents, and all amendments or supplements to any of them, as may be reasonably requested for use in connection with the offering and sale of the Notes; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Notes, including any stamp or other taxes in connection with the original issuance and sale of the Notes; (iv) the printing (or reproduction) and delivery of this Agreement, the preliminary and supplemental blue sky memoranda and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Notes; (v) the registration or qualification of the Notes for offer and sale under the securities or blue sky laws of the several states as provided in Section 5(g) hereof (including the reasonable fees, expenses and disbursements of counsel for the Underwriters relating to the preparation, printing or reproduction, and delivery of the preliminary and supplemental blue sky memoranda and such registration and qualification (which fees and disbursements of counsel shall not exceed $10,000)); (vi) the filing fees and the fees and expenses of counsel for the Underwriters in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc. (which fees and disbursements of counsel shall not exceed $10,000); (vii) the transportation and other expenses incurred by or on behalf of representatives of Issuer and the Guarantors in connection with presentations to prospective purchasers of the Notes; (viii) the fees and expenses of the Issuer’s and the Guarantors’ accountants and counsel (including local and special counsel) for the Issuer and the Guarantors.
10. Termination of Agreement. This Agreement shall be subject to termination in the absolute discretion of the Representatives, without liability on the part of the Underwriters to the Issuer or the Guarantors, by notice to the Issuer, if, prior to the Closing Date: (i) there shall have occurred any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business, prospects, properties, net worth, or results of operations of the Issuer or the Parent and their subsidiaries, whether or not arising from transactions in the ordinary course of business, except as specifically addressed in the Registration Statement, the Disclosure Package or the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), the effect of which, in the sole judgment of the Representatives, is so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement (exclusive of any amendments thereto), the Disclosure Package and the Prospectus (exclusive of any supplement thereto); (ii) there shall have occurred any downgrading in the rating of any debt securities or preferred stock of the Issuer or the Parent by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred stock of the Issuer or the Parent (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) trading in the Parent’s common stock or outstanding preferred stock shall have been suspended by the Commission or the NYSE or
30
trading in securities generally on the NYSE or the Nasdaq Stock Market shall have been suspended or materially limited; (iv) a general moratorium on commercial banking activities in New York shall have been declared by either federal or state authorities; (v) the Issuer or the Parent or any of their subsidiaries shall have sustained a substantial loss by fire, flood, accident or other calamity which renders it impracticable, in the reasonable judgment of the Representatives, to consummate the sale of the Notes and the delivery of the Notes by the Underwriters at the public offering price; or (vi) there shall have occurred any outbreak or escalation of hostilities or other international or domestic calamity, crisis or change in political, financial or economic conditions, the effect of which on the financial markets of the United States is such as to make it, in the sole judgment of the Representatives, impracticable or inadvisable to commence or continue the offering as contemplated by the Registration Statement (exclusive of any amendments thereto), the Disclosure Package and the Prospectus (exclusive of any supplement thereto). Notice of such termination may be given to the Issuer by electronic transmission or by telephone and shall be subsequently confirmed by letter.
11. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Date to purchase the Notes that it or they are obligated to purchase under this Agreement (the “Defaulted Notes”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Notes in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24 hour period, then:
(a) if the aggregate principal amount of Defaulted Notes does not exceed 10% of the aggregate principal amount of Notes to be purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Notes exceeds 10% of the aggregate principal amount of Notes to be purchased on such date, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 11 shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement, either (i) the Representatives or (ii) the Issuer shall have the right to postpone the Closing Date for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 11.
12. Information Furnished by the Underwriters. The Issuer hereby acknowledges that the only information that the Underwriters have furnished to the Issuer expressly for use in the Registration Statement, the Disclosure Package or the Prospectus are (a) the names of the Underwriters appearing in the table immediately below the first paragraph, (b) the second and
31
third sentences of the fourth paragraph, (c) the second sentence of the fifth paragraph and (d) the first, second and third sentences of the sixth paragraph, in each case under the heading “Underwriting” in such documents (collectively, the “Underwriters Content”).
13. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Issuer, the Guarantors or any of their officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Underwriters or the Issuer, the Guarantors or any of the officers, directors, employees, agents or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Notes. The provisions of Sections 5(k), 7 and 9 hereof shall survive the termination or cancellation of this Agreement.
14. Absence of Fiduciary Relationship. Each of the Issuer and the Guarantors acknowledges and agrees that:
(a) each of the Underwriters has been retained solely to act as an underwriter in connection with the sale of the Notes and that no fiduciary, advisory or agency relationship between the Issuer and the Guarantors and the Underwriters has been created in respect of any of the transactions contemplated by this Agreement or the process leading thereto, irrespective of whether the Underwriters have advised or any of them is advising the Issuer and the Guarantors on other matters;
(b) the price of the Notes set forth in this Agreement was established by the Issuer following discussions and arm’s-length negotiations with the Underwriters, and the Issuer is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) it has been advised that the Underwriters and their affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Issuer and the Guarantors and that no Underwriter has an obligation to disclose such interests and transactions to the Issuer and the Guarantors by virtue of any fiduciary, advisory or agency relationship; and
(d) it waives, to the fullest extent permitted by law, any claims it may have against the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty.
Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Underwriters, will be mailed, delivered or sent by electronic transmission to PNC Capital Markets LLC, 300 Fifth Ave, 10th Floor, Pittsburgh, PA 15222 Attention: Debt Capital Markets, Fixed Income Transaction Execution Email: capitalmarketsnotices@pnc.com; J.P. Morgan Securities LLC, 270 Park Avenue, New York, New York 10017, Attention: Investment Grade Syndicate Desk, Facsimile: (212) 834-6081; U.S. Bancorp Investments, Inc., 214 North Tryon St., 26th Floor, Charlotte, NC 28202, Attention: Investment Grade Syndicate, Fax: (877) 774-3462; Wells Fargo Securities, LLC, 550 South Tryon Street, 5th Floor, Charlotte, North Carolina 28202, Attention: Transaction Management, Email: tmgcapitalmarkets@wellsfargo.com; or, if sent to the Issuer, will be mailed, delivered, telefaxed
32
or sent by electronic transmission to the office of the Issuer at 32301 Woodward Avenue, Royal Oak, Michigan 48073, Attention: Peter Coughenour (facsimile: 248-737-9110), Attention: Peter Coughenour, Email: Peter@agreerealty.com.
15. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 15: (A) a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (B) “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (D) “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
16. Successors. This Agreement has been made solely for the benefit of the Underwriters, the Issuer, the Guarantors, their directors and officers, and the other controlling persons referred to in Section 7 hereof and their respective successors and assigns, to the extent provided herein. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 7 hereof, and no other person shall acquire or have any right under or by virtue of this Agreement. Neither the term “successor” nor the term “successors and assigns” as used in this Agreement shall include a purchaser from the Underwriters of any of the Notes in his status as such purchaser.
17. Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Issuer, the Guarantors and the Underwriters, or any of them, with respect to the subject matter hereof.
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18. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York.
19. Waiver of Jury Trial. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
20. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
21. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.
22. Research Analyst Independence. Each of the Issuer and the Guarantors acknowledges that the Underwriters’ research analysts and research departments are required to be independent from their investment banking divisions and are subject to certain regulations and internal policies, and that Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Issuer or any Guarantor and/or the offering that differ from the views of their respective investment banking divisions. Each of the Issuer and the Guarantors hereby waives and releases, to the fullest extent permitted by law, any claims that the Issuer or any Guarantor may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Issuer or a Guarantor by Underwriters’ investment banking divisions. Each of the Issuer and the Guarantors acknowledges that each Underwriter is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the Issuer or any Guarantor and any other companies that may be the subject of the transactions contemplated by this Agreement.
23. Duties. Nothing in this Agreement shall be deemed to create a partnership, joint venture or agency relationship between the parties. The parties hereto undertake to perform such duties and obligations only as expressly set forth herein. Such duties and obligations of the parties hereto with respect to the Notes shall be determined solely by the express provisions of this Agreement, and the parties hereto shall not be liable except for the performance of such duties and obligations with respect to the Notes as are specifically set forth in this Agreement. Each of the Issuer and the Guarantors acknowledges that the Underwriters disclaim any implied duties (including any fiduciary duty), covenants or obligations arising from the Underwriters’ performance of their duties and obligations expressly set forth herein.
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24. Definitions. The terms that follow, when used in this Agreement, shall have the meanings indicated:
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
“Rule 158,” “Rule 164,” “Rule 172,” “Rule 173,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 430A,” “Rule 430B,” “Rule 430C,” “Rule 433” and “Rule 436” refer to such rules under the Act.
[Signature page follows.]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us this letter, whereupon this letter and your acceptance shall represent a binding agreement among the Issuer, each Guarantor and the Underwriters.
| Very truly yours, | ||||||||||||||
| AGREE LIMITED PARTNERSHIP | ||||||||||||||
| By: AGREE REALTY CORPORATION, its General Partner | ||||||||||||||
| By: | /s/ Peter Coughenour | |||||||||||||
| Name: | Peter Coughenour | |||||||||||||
| Title: | Chief Financial Officer and Secretary | |||||||||||||
| AGREE REALTY CORPORATION | ||||||||||||||
| By: | /s/ Peter Coughenour | |||||||||||||
| Name: | Peter Coughenour | |||||||||||||
| Title: | Chief Financial Officer and Secretary | |||||||||||||
[Signature Page to the Underwriting Agreement]
| AGREE 117 MISSION, LLC | |||||
| AGREE 2016, LLC | |||||
| AGREE ABSECON URBAN RENEWAL, LLC | |||||
| AGREE CENTRAL, LLC | |||||
| AGREE CHAPEL HILL NC, LLC | |||||
| AGREE COLUMBIA SC, LLC | |||||
| AGREE CONSTRUCTION MANAGEMENT, LLC | |||||
| AGREE CONVENIENCE NO. 1, LLC | |||||
| AGREE CW, LLC | |||||
| AGREE DALLAS FOREST DRIVE, LLC | |||||
| AGREE DT JACKSONVILLE NC, LLC | |||||
| AGREE FARMINGTON NM, LLC | |||||
| AGREE FORT WALTON BEACH, LLC | |||||
| AGREE GRANDVIEW HEIGHTS OH, LLC | |||||
| AGREE GREENWICH CT, LLC | |||||
| AGREE LAND EAST, LLC | |||||
| AGREE LAND WEST, LLC | |||||
| AGREE LEBANON NH, LLC | |||||
| AGREE LITTLETON CO, LLC | |||||
| AGREE M-59, LLC | |||||
| AGREE MADISON AL, LLC | |||||
| AGREE MARIETTA, LLC | |||||
| AGREE MCW, LLC | |||||
| AGREE MENA AR, LLC | |||||
| AGREE NJ, LLC | |||||
| AGREE ONAWAY MI, LLC | |||||
| AGREE ORANGE CT, LLC | |||||
| AGREE OXFORD COMMONS AL, LLC | |||||
| AGREE PATERSON NJ, LLC | |||||
| AGREE ROSEVILLE CA, LLC | |||||
| AGREE SB, LLC | |||||
| AGREE SECAUCUS NJ, LLC | |||||
| AGREE SHELF ES PA, LLC | |||||
| AGREE SHELF PA, LLC | |||||
| AGREE SOUTHFIELD, LLC | |||||
| AGREE SPRING GROVE, LLC | |||||
| AGREE ST PETERSBURG, LLC | |||||
| AGREE STORES, LLC | |||||
| AGREE TALLAHASSEE, LLC | |||||
| AGREE TK, LLC | |||||
| AGREE WALKER, LLC | |||||
| AGREE WAWA BALTIMORE, LLC | |||||
| AGREE WILMINGTON, LLC | |||||
| AR LAND EAST, LLC | |||||
| AR LAND WEST, LLC | |||||
[Signature Page to the Underwriting Agreement]
| AR LAND CA, LLC | |||||
| AR LAND CENTRAL, LLC | |||||
| AR WTO, LLC | |||||
| BB FARMINGTON NM, LLC | |||||
| DD 71, LLC | |||||
| DD BROWNSVILLE LLC | |||||
| DD HEMPSTEAD LLC | |||||
| LSDW DERBY CT, LLC | |||||
| LUNACORP, LLC | |||||
| MT. PLEASANT SHOPPING CENTER, L.L.C. | |||||
| PACHYDERM CHATTANOOGA TN, LLC | |||||
| PACHYDERM MARIETTA GA, LLC | |||||
| PACHYDERM MYRTLE BEACH SC, LLC | |||||
| PACHYDERM PHILADELPHIA PA, LLC | |||||
| PACHYDERM PROPERTIES, LLC | |||||
| PACHYDERM RIVERDALE GA, LLC | |||||
| PACHYDERM WAITE PARK MN, LLC | |||||
| PAINT PA, LLC | |||||
| SAFARI PROPERTIES II, LLC | |||||
| By: AGREE LIMITED PARTNERSHIP, its Sole Member | |||||||||||||||||
| By: AGREE REALTY CORPORATION, its General Partner | |||||||||||||||||
| By: | /s/ Peter Coughenour | ||||||||||||||||
| Name: Peter Coughenour | |||||||||||||||||
| Title: Chief Financial Officer and Secretary | |||||||||||||||||
[Signature Page to the Underwriting Agreement]
| Accepted and agreed to as of the date first above written: | ||||||||
For themselves and as Representatives of the several Underwriters named in Schedule I hereto. | ||||||||
| PNC CAPITAL MARKETS LLC | ||||||||
| By: | /s/ Mitchell O'Shell | |||||||
| Name: Mitchell O'Shell | ||||||||
| Title: Senior Associate | ||||||||
| J.P. MORGAN SECURITIES LLC | ||||||||
| By: | /s/ Robert Bottamedi | |||||||
| Name: Robert Bottamedi | ||||||||
| Title: Executive Director | ||||||||
| U.S. BANCORP INVESTMENTS, INC. | ||||||||
| By: | /s/ Charles P. Carpenter | |||||||
| Name: Charles P. Carpenter | ||||||||
| Title: Senior Vice President | ||||||||
| WELLS FARGO SECURITIES, LLC | ||||||||
| By: | /s/ Carolyn Hurley | |||||||
| Name: Carolyn Hurley | ||||||||
| Title: Managing Director | ||||||||
[Signature Page to the Underwriting Agreement]
SCHEDULE I
Name of Underwriter | Principal Amount of Notes to be Purchased | ||||||||||||||||||||||
PNC Capital Markets LLC | $52,000,000 | ||||||||||||||||||||||
| J.P. Morgan Securities LLC | 52,000,000 | ||||||||||||||||||||||
| U.S. Bancorp Investments, Inc. | 52,000,000 | ||||||||||||||||||||||
| Wells Fargo Securities LLC | 52,000,000 | ||||||||||||||||||||||
| BofA Securities, Inc. | 28,000,000 | ||||||||||||||||||||||
| Citigroup Global Markets Inc. | 28,000,000 | ||||||||||||||||||||||
| Mizuho Securities USA LLC | 28,000,000 | ||||||||||||||||||||||
| Morgan Stanley & Co. LLC | 24,000,000 | ||||||||||||||||||||||
| Regions Securities LLC | 24,000,000 | ||||||||||||||||||||||
| SMBC Nikko Securities America, Inc. | 24,000,000 | ||||||||||||||||||||||
| Raymond James & Associates, Inc. | 14,000,000 | ||||||||||||||||||||||
| Stifel, Nicolaus & Company, Incorporated | 14,000,000 | ||||||||||||||||||||||
| Samuel A. Ramirez & Company, Inc. | 8,000,000 | ||||||||||||||||||||||
Total | $400,000,000 | ||||||||||||||||||||||
Schedule I-1
SCHEDULE II
FREE WRITING PROSPECTUSES INCLUDED IN THE DISCLOSURE PACKAGE
(i) Final Term Sheet, attached as Schedule II-A hereto
(ii) Press Release, dated September 17, 2026
Schedule II-1
SCHEDULE II-A
Issuer Free Writing Prospectus
Filed Pursuant to Rule 433
Registration No. 333-295307
Relating to Preliminary Prospectus Supplement
Dated September 17, 2026 to Prospectus Dated April 24, 2026
Agree Limited Partnership
$400,000,000 5.650% Notes due 2036 (the “Notes”)
September 17, 2026
Pricing Term Sheet
| Issuer: | Agree Limited Partnership | ||||
| Guarantors: | Agree Realty Corporation, the sole general partner of Agree Limited Partnership, and certain of Agree Limited Partnership’s existing and future subsidiaries | ||||
| Security Title: | 5.650% Notes due 2036 | ||||
| Expected Ratings (Fitch / Moody’s / S&P)*: | A- (Stable) / Baa1 (Stable) / BBB+ (Stable) | ||||
| Aggregate Principal Amount: | $400,000,000 | ||||
| Stated Maturity Date: | October 15, 2036 | ||||
| Public Offering Price: | 98.497% of the principal amount of the Notes | ||||
| Coupon (Interest Rate): | 5.650% per annum | ||||
| Yield to Maturity: | 5.849% | ||||
| Benchmark Treasury: | UST 4.625% due August 15, 2036 | ||||
| Benchmark Treasury Price and Yield: | 97-15+ / 4.949% | ||||
| Spread to Benchmark Treasury: | +90 basis points | ||||
| Interest Payment Dates: | April 15 and October 15 of each year, beginning on April 15, 2027 | ||||
| Optional Redemption: | •Prior to July 15, 2036 (three months prior to the Stated Maturity Date of the Notes), “make-whole” call at T+15 basis points (calculated as though the actual Stated Maturity Date of the Notes was July 15, 2036) •On or after July 15, 2036 (three months prior to the Stated Maturity Date of the Notes), par call | ||||
| CUSIP / ISIN: | 008513 AG8 / US008513AG88 | ||||
Schedule II-A-1
| Trade Date: | September 17, 2026 | ||||
| Settlement Date: | September 22, 2026 (T+3); under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended trades in the secondary market generally are required to settle in two business days, unless the parties to that trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes before the sixth business day prior to the Settlement Date will be required, by virtue of the fact that the Notes initially will settle on a delayed basis, to specify an alternate settlement cycle at the time of any such trade to prevent a failed settlement, and should consult their own advisors with respect to these matters. | ||||
| Joint Book-Running Managers: | PNC Capital Markets LLC J.P. Morgan Securities LLC U.S. Bancorp Investments, Inc. Wells Fargo Securities, LLC BofA Securities, Inc. Citigroup Global Markets Inc. Mizuho Securities USA LLC | ||||
| Co-Managers: | Morgan Stanley & Co. LLC Regions Securities LLC SMBC Nikko Securities America, Inc. Raymond James & Associates, Inc. Stifel, Nicolaus & Company, Incorporated Samuel A. Ramirez & Company, Inc. | ||||
* Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
Taking into account the net proceeds of this offering, the Issuer will have a liquidity position of over $2.0 billion and the offering will extend the Issuer’s weighted-average debt maturity to approximately 6 years, excluding the unsecured revolving credit facility and outstanding commercial paper notes.
The Issuer has filed a registration statement and a prospectus with the Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates. Before you invest, you should read the prospectus and the related preliminary prospectus supplement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the underwriters can arrange to send you the prospectus and related preliminary prospectus supplement if you request it by calling PNC Capital Markets LLC (toll-free) at 1-855-881-0697, J.P. Morgan Securities LLC (collect) at 1-212-834-4533, U.S. Bancorp Investments, Inc. (toll-free) at 1-877-558-2607 or Wells Fargo Securities, LLC (toll-free) at 1-800-645-3751. This information does not purport to be a complete description of these securities or the offering. Please refer to the preliminary prospectus supplement for a complete description of the securities. This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
Any disclaimer or other notice that may appear below is not applicable to this communication and should be disregarded. Such disclaimer or notice was automatically generated as a result of this communication being sent by Bloomberg or another email system.
Schedule II-A-2
SCHEDULE III
LIST OF SUBSIDIARIES AND JOINT VENTURES
The name of each entity that is a Subsidiary Guarantor appears in bold font with an asterisk:
| Name | Jurisdiction of Organization | Foreign Qualification | ||||||||||||
| 1301 N 77 Sunshine LLC | Illinois | Texas | ||||||||||||
| ADC Express, LLC | Michigan | |||||||||||||
| Agree 117 Mission, LLC* | Michigan | |||||||||||||
| Agree 2016, LLC* | Delaware | Alabama | ||||||||||||
| Florida | ||||||||||||||
| Georgia | ||||||||||||||
| Michigan | ||||||||||||||
| North Carolina | ||||||||||||||
| South Carolina | ||||||||||||||
| Tennessee | ||||||||||||||
| Texas | ||||||||||||||
| Agree Absecon Urban Renewal, LLC* | New Jersey | |||||||||||||
| Agree Beecher, LLC | Michigan | |||||||||||||
| Agree Bristol & Fenton Project, LLC | Michigan | |||||||||||||
Schedule III-1
| Name | Jurisdiction of Organization | Foreign Qualification | ||||||||||||
Agree Central, LLC* | Delaware | Alabama | ||||||||||||
| Alaska | ||||||||||||||
| Arkansas | ||||||||||||||
| Arizona | ||||||||||||||
| California | ||||||||||||||
| Colorado | ||||||||||||||
| Connecticut | ||||||||||||||
| Florida | ||||||||||||||
| Georgia | ||||||||||||||
| Idaho | ||||||||||||||
| Illinois | ||||||||||||||
| Indiana | ||||||||||||||
| Iowa | ||||||||||||||
| Kansas | ||||||||||||||
| Kentucky | ||||||||||||||
| Louisiana | ||||||||||||||
| Maine | ||||||||||||||
| Maryland | ||||||||||||||
| Massachusetts | ||||||||||||||
| Michigan | ||||||||||||||
| Minnesota | ||||||||||||||
| Missouri | ||||||||||||||
| Mississippi | ||||||||||||||
| Nebraska | ||||||||||||||
| Nevada | ||||||||||||||
| New Hampshire | ||||||||||||||
| New Jersey | ||||||||||||||
| New Mexico | ||||||||||||||
| New York | ||||||||||||||
| North Carolina | ||||||||||||||
| North Dakota | ||||||||||||||
| Ohio | ||||||||||||||
| Oklahoma | ||||||||||||||
| Oregon | ||||||||||||||
| Pennsylvania | ||||||||||||||
| Rhode Island | ||||||||||||||
| South Carolina | ||||||||||||||
| South Dakota | ||||||||||||||
| Tennessee | ||||||||||||||
| Texas | ||||||||||||||
| Vermont | ||||||||||||||
| Virginia | ||||||||||||||
| Washington | ||||||||||||||
| Washington, D.C. | ||||||||||||||
| West Virginia | ||||||||||||||
| Wisconsin | ||||||||||||||
| Wyoming | ||||||||||||||
| Agree Chapel Hill NC, LLC* | Delaware | North Carolina | ||||||||||||
| Agree Columbia SC, LLC* | Delaware | South Carolina | ||||||||||||
Schedule III-2
| Name | Jurisdiction of Organization | Foreign Qualification | ||||||||||||
| Agree Construction Management, LLC* | Delaware | Florida | ||||||||||||
| Kansas | ||||||||||||||
Agree Convenience No. 1, LLC* | Delaware | Alabama | ||||||||||||
| Arizona | ||||||||||||||
| Arkansas | ||||||||||||||
| California | ||||||||||||||
| Colorado | ||||||||||||||
| Florida | ||||||||||||||
| Georgia | ||||||||||||||
| Illinois | ||||||||||||||
| Indiana | ||||||||||||||
| Iowa | ||||||||||||||
| Kansas | ||||||||||||||
| Kentucky | ||||||||||||||
| Louisiana | ||||||||||||||
| Maryland | ||||||||||||||
| Michigan | ||||||||||||||
| Minnesota | ||||||||||||||
| Missouri | ||||||||||||||
| Mississippi | ||||||||||||||
| Nebraska | ||||||||||||||
| New Jersey | ||||||||||||||
| New Mexico | ||||||||||||||
| New York | ||||||||||||||
| North Carolina | ||||||||||||||
| Ohio | ||||||||||||||
| Oklahoma | ||||||||||||||
| Oregon | ||||||||||||||
| Pennsylvania | ||||||||||||||
| Rhode Island | ||||||||||||||
| South Carolina | ||||||||||||||
| Tennessee | ||||||||||||||
| Texas | ||||||||||||||
| Virginia | ||||||||||||||
| West Virginia | ||||||||||||||
| Wisconsin | ||||||||||||||
| Agree Corunna, LLC | Michigan | |||||||||||||
Agree CW, LLC* | Delaware | Kentucky | ||||||||||||
| Michigan | ||||||||||||||
| Texas | ||||||||||||||
| Agree Dallas Forest Drive, LLC* | Texas | |||||||||||||
| Agree Development, LLC | Delaware | Illinois | ||||||||||||
| Tennessee | ||||||||||||||
| Texas | ||||||||||||||
Schedule III-3
| Name | Jurisdiction of Organization | Foreign Qualification | ||||||||||||
| Agree DT Jacksonville NC, LLC* | Delaware | North Carolina | ||||||||||||
| Agree Farmington NM, LLC* | Delaware | New Mexico | ||||||||||||
| Agree Fort Walton Beach, LLC* | Florida | |||||||||||||
| Agree Grandview Heights OH, LLC* | Delaware | Ohio | ||||||||||||
| AGREE GREENWICH CT, LLC* | Delaware | Connecticut | ||||||||||||
| Agree Land East, LLC* | Delaware | Illinois | ||||||||||||
| Agree Land West, LLC* | Delaware | Nevada | ||||||||||||
| Texas | ||||||||||||||
| Wisconsin | ||||||||||||||
| Agree Lebanon NH, LLC* | Delaware | New Hampshire | ||||||||||||
Schedule III-4
| Name | Jurisdiction of Organization | Foreign Qualification | ||||||||||||
Agree Limited Partnership | Delaware | Alabama | ||||||||||||
| Arizona | ||||||||||||||
| Arkansas | ||||||||||||||
| California | ||||||||||||||
| Colorado | ||||||||||||||
| Connecticut | ||||||||||||||
| Florida | ||||||||||||||
| Georgia | ||||||||||||||
| Hawaii | ||||||||||||||
| Idaho | ||||||||||||||
| Illinois | ||||||||||||||
| Indiana | ||||||||||||||
| Iowa | ||||||||||||||
| Kansas | ||||||||||||||
| Kentucky | ||||||||||||||
| Louisiana | ||||||||||||||
| Maryland | ||||||||||||||
| Massachusetts | ||||||||||||||
| Michigan | ||||||||||||||
| Minnesota | ||||||||||||||
| Mississippi | ||||||||||||||
| Missouri | ||||||||||||||
| Montana | ||||||||||||||
| Nebraska | ||||||||||||||
| Nevada | ||||||||||||||
| New Hampshire (as Agree New Hampshire Limited Partnership) | ||||||||||||||
| New Jersey (as Agree LP Cape May) | ||||||||||||||
| New Mexico | ||||||||||||||
| New York | ||||||||||||||
| North Carolina | ||||||||||||||
| North Dakota | ||||||||||||||
| Ohio | ||||||||||||||
| Oklahoma | ||||||||||||||
| Oregon | ||||||||||||||
| Pennsylvania | ||||||||||||||
| South Carolina | ||||||||||||||
| South Dakota | ||||||||||||||
| Tennessee | ||||||||||||||
| Texas | ||||||||||||||
| Utah | ||||||||||||||
| Vermont | ||||||||||||||
| Virginia (as Agree Virginia Limited Partnership) | ||||||||||||||
| Washington | ||||||||||||||
| West Virginia | ||||||||||||||
| Wisconsin | ||||||||||||||
Schedule III-5
| Name | Jurisdiction of Organization | Foreign Qualification | ||||||||||||
| Agree Littleton CO LLC* | Delaware | Colorado | ||||||||||||
| Agree M-59 LLC* | Michigan | |||||||||||||
| Agree Madison AL, LLC* | Michigan | Alabama | ||||||||||||
| Agree Marietta, LLC* | Georgia | |||||||||||||
Agree MCW, LLC* | Delaware | Florida | ||||||||||||
| Iowa | ||||||||||||||
| Mississippi | ||||||||||||||
| New Mexico | ||||||||||||||
| Agree Mena AR, LLC* | Delaware | Arkansas | ||||||||||||
| Agree NJ, LLC* | Delaware | New Jersey | ||||||||||||
| Agree Onaway MI, LLC* | Delaware | Michigan | ||||||||||||
| Agree Orange CT, LLC* | Delaware | Connecticut | ||||||||||||
| Agree Oxford Commons AL, LLC* | Delaware | Alabama | ||||||||||||
| Agree Paterson NJ, LLC* | Delaware | New Jersey | ||||||||||||
| Agree Portfolio, LLC | Delaware | New York | ||||||||||||
| North Carolina | ||||||||||||||
| Pennsylvania | ||||||||||||||
| Agree Realty Services, LLC | Delaware | Michigan | ||||||||||||
| Agree Realty South-East, LLC | Michigan | Georgia | ||||||||||||
| Agree Roseville CA, LLC* | California | |||||||||||||
Agree SB, LLC* | Delaware | Alabama | ||||||||||||
| Colorado | ||||||||||||||
| Florida | ||||||||||||||
| Georgia | ||||||||||||||
| Illinois | ||||||||||||||
| Indiana | ||||||||||||||
| Kentucky | ||||||||||||||
| Louisiana | ||||||||||||||
| Michigan | ||||||||||||||
| Missouri | ||||||||||||||
| Nebraska | ||||||||||||||
| New York | ||||||||||||||
| North Carolina | ||||||||||||||
| Ohio | ||||||||||||||
| Oklahoma | ||||||||||||||
| Pennsylvania | ||||||||||||||
| South Carolina | ||||||||||||||
| Tennessee | ||||||||||||||
| Texas | ||||||||||||||
| Virginia | ||||||||||||||
| Washington | ||||||||||||||
| West Virginia | ||||||||||||||
| Wisconsin | ||||||||||||||
| Agree Secaucus NJ, LLC* | Delaware | New Jersey | ||||||||||||
Schedule III-6
| Name | Jurisdiction of Organization | Foreign Qualification | ||||||||||||
| Agree SEL, LLC | Delaware | |||||||||||||
| Agree Shelf ES PA, LLC* | Delaware | Pennsylvania | ||||||||||||
| Agree Shelf PA, LLC* | Delaware | Illinois | ||||||||||||
| Indiana | ||||||||||||||
| Louisiana | ||||||||||||||
| Michigan | ||||||||||||||
| Mississippi (as Agree Shelf Penn, LLC) | ||||||||||||||
| Missouri | ||||||||||||||
| New Jersey | ||||||||||||||
| New York | ||||||||||||||
| Ohio | ||||||||||||||
| Pennsylvania | ||||||||||||||
| South Carolina | ||||||||||||||
| Texas | ||||||||||||||
| Wisconsin | ||||||||||||||
| Agree Southfield LLC* | Michigan | |||||||||||||
| Agree Spring Grove, LLC* | Illinois | |||||||||||||
| Agree St Petersburg, LLC* | Florida | |||||||||||||
Schedule III-7
| Name | Jurisdiction of Organization | Foreign Qualification | ||||||||||||
Agree Stores, LLC* | Delaware | Alabama | ||||||||||||
| Alaska | ||||||||||||||
| Arizona | ||||||||||||||
| Arkansas | ||||||||||||||
| California | ||||||||||||||
| Colorado | ||||||||||||||
| Connecticut | ||||||||||||||
| Florida | ||||||||||||||
| Georgia | ||||||||||||||
| Idaho | ||||||||||||||
| Illinois | ||||||||||||||
| Indiana | ||||||||||||||
| Iowa | ||||||||||||||
| Kansas | ||||||||||||||
| Kentucky | ||||||||||||||
| Louisiana | ||||||||||||||
| Maryland | ||||||||||||||
| Massachusetts | ||||||||||||||
| Michigan | ||||||||||||||
| Minnesota | ||||||||||||||
| Mississippi | ||||||||||||||
| Missouri | ||||||||||||||
| Montana | ||||||||||||||
| Nevada | ||||||||||||||
| New Hampshire | ||||||||||||||
| New Jersey | ||||||||||||||
| New Mexico | ||||||||||||||
| New York | ||||||||||||||
| North Carolina | ||||||||||||||
| Ohio | ||||||||||||||
| Oklahoma | ||||||||||||||
| Oregon | ||||||||||||||
| Pennsylvania | ||||||||||||||
| South Carolina | ||||||||||||||
| South Dakota | ||||||||||||||
| Tennessee | ||||||||||||||
| Texas | ||||||||||||||
| Utah | ||||||||||||||
| Virginia | ||||||||||||||
| Washington | ||||||||||||||
| West Virginia | ||||||||||||||
| Wisconsin | ||||||||||||||
| Wyoming | ||||||||||||||
| Agree Tallahassee, LLC* | Florida | |||||||||||||
Schedule III-8
| Name | Jurisdiction of Organization | Foreign Qualification | ||||||||||||
| Agree TK, LLC* | Delaware | California | ||||||||||||
| Illinois | ||||||||||||||
| Agree Walker, LLC* | Michigan | |||||||||||||
| Agree Wawa Baltimore, LLC* | Maryland | |||||||||||||
| Agree Wilmington, LLC* | North Carolina | |||||||||||||
| AR Land CA, LLC* | Delaware | California | ||||||||||||
| AR Land Central, LLC* | Delaware | Illinois | ||||||||||||
| AR Land East, LLC* | Delaware | Connecticut | ||||||||||||
| AR Land West, LLC* | Delaware | Illinois | ||||||||||||
| Iowa | ||||||||||||||
| Michigan | ||||||||||||||
| Wisconsin | ||||||||||||||
| AR WTO, LLC* | Delaware | Ohio | ||||||||||||
| BB Farmington NM, LLC* | Delaware | New Mexico | ||||||||||||
| DD 71, LLC* | Delaware | Ohio | ||||||||||||
| Pennsylvania | ||||||||||||||
| Wisconsin | ||||||||||||||
| DD Brownsville LLC* | North Carolina | Texas | ||||||||||||
| DD Hempstead LLC* | North Carolina | Texas | ||||||||||||
| Delta DEV Parcel, LLC | Delaware | Ohio | ||||||||||||
| DFP 71, LLC | Delaware | California | ||||||||||||
| Georgia | ||||||||||||||
| New Mexico | ||||||||||||||
| Ohio | ||||||||||||||
| Texas | ||||||||||||||
| GW 64th Cicero, LLC | Illinois | |||||||||||||
| LSDW Derby CT, LLC* | Delaware | Connecticut | ||||||||||||
| Lunacorp, LLC* | Delaware | Louisiana | ||||||||||||
| Maryland | ||||||||||||||
| North Carolina | ||||||||||||||
| Virginia (as Agree Lunacore, LLC) | ||||||||||||||
| West Virginia | ||||||||||||||
| Wisconsin | ||||||||||||||
| Mt. Pleasant Shopping Center, L.L.C.* | Michigan | |||||||||||||
| Pachyderm Chattanooga TN, LLC* | Delaware | Tennessee | ||||||||||||
| Pachyderm Marietta GA, LLC* | Delaware | Georgia | ||||||||||||
| Pachyderm Myrtle Beach SC, LLC* | Delaware | South Carolina | ||||||||||||
| Pachyderm Philadelphia PA, LLC* | Delaware | Pennsylvania | ||||||||||||
Schedule III-9
| Name | Jurisdiction of Organization | Foreign Qualification | ||||||||||||
Pachyderm Properties, LLC* | Delaware | Alabama | ||||||||||||
| Arkansas | ||||||||||||||
| Colorado | ||||||||||||||
| Connecticut | ||||||||||||||
| Florida | ||||||||||||||
| Georgia | ||||||||||||||
| Illinois | ||||||||||||||
| Indiana | ||||||||||||||
| Kentucky | ||||||||||||||
| Louisiana | ||||||||||||||
| Maryland | ||||||||||||||
| Massachusetts | ||||||||||||||
| Minnesota | ||||||||||||||
| Mississippi | ||||||||||||||
| Missouri | ||||||||||||||
| New Hampshire | ||||||||||||||
| New Jersey | ||||||||||||||
| New York | ||||||||||||||
| North Carolina | ||||||||||||||
| Ohio | ||||||||||||||
| Oklahoma | ||||||||||||||
| Rhode Island | ||||||||||||||
| South Carolina | ||||||||||||||
| Tennessee | ||||||||||||||
| Texas | ||||||||||||||
| Virginia | ||||||||||||||
| Washington | ||||||||||||||
| Wisconsin | ||||||||||||||
| Pachyderm Properties II, LLC | Delaware | |||||||||||||
| Pachyderm Riverdale GA, LLC* | Delaware | Georgia | ||||||||||||
| Pachyderm Waite Park MN, LLC* | Delaware | Minnesota | ||||||||||||
Paint PA, LLC* | Delaware | Pennsylvania | ||||||||||||
| Pipercorp, LLC | Delaware | |||||||||||||
| Safari Properties II, LLC* | Delaware | Mississippi | ||||||||||||
Joint Ventures
None
Schedule III-10
SCHEDULE IV
MATERIAL AGREEMENTS
1.Amended and Restated Registration Rights Agreement, dated July 8, 1994, by and among the Agree Realty Corporation, Richard Agree, Edward Rosenberg and Joel Weiner
2.Amended Employment Agreement, dated July 1, 2014, by and between Agree Realty Corporation and Joey Agree
3.Agree Realty Corporation 2017 Executive Incentive Plan, dated February 16, 2017
4.Note Purchase Agreement, dated May 28, 2015, by and among Agree Limited Partnership, Agree Realty Corporation and the purchasers thereto
5.Note Purchase Agreement, dated July 28, 2016, by and among Agree Realty Corporation, Agree Limited Partnership, and the purchasers named therein
6.Note Purchase Agreement, dated August 3, 2017, among Agree Limited Partnership, Agree Realty Corporation and the purchasers named therein
7.Uncommitted Master Note Facility, dated August 3, 2017, among Agree Limited Partnership, Agree Realty Corporation and Teachers Insurance and Annuity Associate of America (“TIAA”) and each TIAA Affiliate (as defined therein)
8.First Supplement to Uncommitted Master Note Facility, dated September 26, 2018, among Agree Limited Partnership, Agree Realty Corporation and TIAA
9.Uncommitted Master Note Facility, dated August 3, 2017, among Agree Limited Partnership, Agree Realty Corporation and Teachers Insurance and AIG Asset Management (U.S.), LLC (“AIG”) and each AIG Affiliate (as defined therein)
10.First Supplement to Uncommitted Master Note Facility, dated September 26, 2018, among Agree Limited Partnership, Agree Realty Corporation, AIG and the institutional investors named therein
11.Form of Revolving Note under the Increase Agreement dated July 18, 2018
12.Reimbursement Agreement, dated October 3, 2023, by and between Agree Realty Corporation and Richard Agree
13.Form of Performance Unit Award Notice pursuant to the Agree Realty Corporation 2014 Omnibus Incentive Plan
14.Note Purchase Agreement, dated as of June 14, 2019, among Agree Limited Partnership, Agree Realty Corporation and the purchasers named therein
Schedule IV-1
15.Summary of Material Terms of Compensation Arrangement with Danielle M. Spehar (effective December 7, 2019)
16.Indenture, dated August 17, 2020, among Agree Limited Partnership, Agree Realty Corporation and U.S. Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association
17.Indenture Officer’s Certificate, dated August 17, 2020, among Agree Limited Partnership, Agree Realty Corporation and U.S. Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association
18.Employment Agreement, dated October 1, 2023, by and between Agree Realty Corporation and Joel Agree
19.Employment Agreement dated June 18, 2020, between Agree Realty Corporation and Craig Erlich
20.Addendum to Employment Agreement dated August 19, 2020, between Agree Realty Corporation and Craig Erlich
21.Employment Agreement, dated January 5, 2022, between Agree Realty Corporation and Peter Coughenour
22.Master Deposit Agreement, dated as of September 17, 2021, by and among Agree Realty Corporation, Computershare Inc. and Computershare Trust Company, N.A., as depositary, and the holders from time to time of the depositary receipts described therein relating to shares of preferred stock of Agree Realty Corporation
23.Second Amended and Restated Agreement of Limited Partnership of Agree Limited Partnership, dated as of September 17, 2021
24.Indenture Officer’s Certificate, dated as of May 14, 2021, among Agree Limited Partnership, Agree Realty Corporation, and U.S. Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association
25.Indenture Officer’s Certificate, dated as of August 22, 2022, among Agree Limited Partnership, Agree Realty Corporation, and U.S. Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association
26.Indenture Officer’s Certificate, dated as of May 13, 2024, among Agree Limited Partnership, Agree Realty Corporation, and U.S. Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association
27.Indenture Officer’s Certificate, dated as of May 23, 2025, among the Issuer, Parent Guarantor and U.S. Bank Trust Company, National Association
28.Fourth Amended and Restated Revolving Credit Agreement, dated as of August 8, 2024 by and among Agree Realty Corporation, Agree Limited Partnership, PNC Bank, National Association as Administrative Agent, and a syndicate of lenders named therein
Schedule IV-2
29.Term Loan Agreement, dated as of July 31, 2023 by and among Agree Realty Corporation, Agree Limited Partnership, PNC Bank, National Association, as Administrative Agent, and a syndicate of lenders named therein
30.First Amendment to Term Loan Agreement, dated as of August 8, 2024 by and among Agree Realty Corporation, Agree Limited Partnership, PNC Bank, National Association, as Administrative Agent, and a syndicate of lenders named therein
31.Agree Realty Corporation 2024 Omnibus Incentive Plan
32.Form of Agree Realty Corporation 2024 Omnibus Incentive Plan Restricted Stock Agreement
33.Form of Agree Realty Corporation 2024 Omnibus Incentive Plan Performance Unit Agreement
34.Summary of Director Compensation
35.Agree Realty Corporation 2014 Omnibus Incentive Plan
36.Form of Restricted Stock Agreement under the Agree Realty Corporation 2014 Omnibus Incentive Plan
37.Form of Performance Share Award Agreement pursuant to the Agree Realty Corporation 2014 Omnibus Incentive Plan
38.Agree Realty Corporation 2020 Omnibus Incentive Plan
39.Form of Restricted Stock Agreement under the Agree Realty Corporation 2020 Omnibus Incentive Plan
40.Form of Performance Unit Agreement under the Agree Realty Corporation 2020 Omnibus Incentive Plan
41.Form of Restricted Stock Notice (Non-Employee Directors) under the Agree Realty Corporation 2020 Omnibus Incentive Plan
42.First Amendment to Fourth Amended and Restated Credit Agreement, dated as of November 17, 2025, by and among Parent Guarantor, the Issuer, PNC Bank, National Association as Administrative Agent, and a syndicate of lenders named therein
Schedule IV-3
Exhibit 4.2
AGREE REALTY CORPORATION
OFFICER’S CERTIFICATE
September 22, 2026
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, authentication and delivery of the Company’s 5.650% Notes due 2036 (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, authentication and delivery 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 5.650% Notes due 2036 (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 September 22, 2026, 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 “5.650% Notes due 2036.”
2. Aggregate Principal Amount. The Notes shall be limited in initial aggregate principal amount to $400,000,000, 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 98.497% of the principal amount thereof.
4. Maturity. The date on which the principal of the Notes is payable is October 15, 2036 (the “Stated Maturity Date”).
5. Rate of Interest; Interest Payment Date; Regular Record Dates. The Notes shall bear interest at the rate of 5.650% per year. Interest on the outstanding principal amount of the Notes shall accrue from September 22, 2026, and will be payable semi-annually in arrears on April 15 and October 15 of each year (each such date, an “Interest Payment Date”), commencing on April 15, 2027, to the persons in whose names the Notes are registered in the security register at the close of business on the immediately preceding April 1 or October 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
A-1
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, 4.800% Senior Notes due 2032, 5.625% Senior Notes due 2034 and 5.600% Senior Notes due 2035 (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.
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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
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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,
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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.
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“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
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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.
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“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.
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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.
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Exhibit A-1
[FORM OF 2036 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
5.650% Notes due 2036
CUSIP No. 008513 AG8
ISIN No. US008513AG88
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 October 15, 2036 (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 April 15 and October 15 of each year (each, an “Interest Payment Date”), commencing on April 15, 2027, at the rate of 5.650% 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 September 22, 2026, 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.
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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 April 1 and October 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.
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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: | |||||||||||||||||
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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 | |||||||||||
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[FORM OF REVERSE OF 2036 NOTE]
AGREE LIMITED PARTNERSHIP
5.650% Notes due 2036
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 September 22, 2026 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 5.650% Notes due 2036 (collectively, the “Notes”) of the Issuer, limited (except as permitted under the Indenture) in aggregate principal amount to $400,000,000.
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 July 15, 2036 (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 15 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
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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.
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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.
A-16
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. | ||
A-17
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 September 22, 2026, 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 5.650% Notes due 2036 (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.
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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.
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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: | |||||||||||||||||
A-20
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 | |||||||||||||||||||||||||
Ex. A-1
Exhibit 5.1
 | |||||
September 22, 2026
Agree Realty Corporation Agree Limited Partnership 32301 Woodward Avenue Royal Oak, Michigan 48073 | ||
| Re: | Registration of 5.650% Senior Notes Due 2036 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 $400,000,000 aggregate principal amount of the Issuer’s 5.650% Senior Notes due 2036 (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. 333-295307) (the “Registration Statement”), filed with the U.S. Securities and Exchange Commission (the “Commission”), 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 “Covered Guarantors”) and the parties listed on Schedule II attached hereto (together with the Parent and the Covered Guarantors, 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 Trust Company, National Association, as successor in interest to U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by the Officer’s Certificate delivered by the Issuer and the Parent on September 22, 2026 (as supplemented, the “Indenture”), (iii) the underwriting agreement (the “Underwriting Agreement”), dated September 17, 2026, by and among the Issuer, the Guarantors, and PNC Capital Markets LLC, J.P. Morgan Securities LLC, U.S. Bancorp Investments, Inc. 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 to authentic original documents 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 Delaware Limited Liability Company Act (together with the Delaware RULPA, “Applicable Delaware Law”), (iii) the federal Law of the United States, (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 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 | ||
September 22, 2026
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 or limited liability company action, as applicable, on the part of the Issuer and each of the Covered Guarantors.
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.
3.When the Guarantees are executed and delivered 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 Guarantors, enforceable against the Guarantors in accordance with their terms.
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 the enforcement of 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 any 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 any 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.
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 September 17, 2026, filed with the Commission on September 18, 2026. 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.
| Honigman LLP • 2290 First National Building • 660 Woodward Avenue • Detroit, Michigan 48226-3506 | ||
September 22, 2026
Page 3
| Very truly yours, | |||||
| /s / Honigman LLP | |||||
| HONIGMAN LLP | |||||
| Honigman LLP • 2290 First National Building • 660 Woodward Avenue • Detroit, Michigan 48226-3506 | ||
Schedule I
| Delaware Guarantors | |||||
| 1 | Agree 2016, LLC | ||||
| 2 | Agree Central, LLC | ||||
| 3 | Agree Chapel Hill NC, LLC | ||||
| 4 | Agree Columbia SC, LLC | ||||
| 5 | Agree Construction Management, LLC | ||||
| 6 | Agree Convenience No. 1, 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 Land East, LLC | ||||
| 13 | Agree Land West, LLC | ||||
| 14 | Agree Lebanon NH, LLC | ||||
| 15 | Agree Littleton CO, LLC | ||||
| 16 | Agree MCW, LLC | ||||
| 17 | Agree Mena AR, LLC | ||||
| 18 | Agree NJ, LLC | ||||
| 19 | Agree Onaway MI, LLC | ||||
| 20 | Agree Orange CT, LLC | ||||
| 21 | Agree Oxford Commons AL, LLC | ||||
| 22 | Agree Paterson NJ, LLC | ||||
| 23 | Agree SB, LLC | ||||
| 24 | Agree Secaucus NJ, LLC | ||||
| 25 | Agree Shelf ES PA, LLC | ||||
| 26 | Agree Shelf PA, LLC | ||||
| 27 | Agree Stores, LLC | ||||
| 28 | Agree TK, LLC | ||||
| 29 | AR Land CA, LLC | ||||
| 30 | AR Land Central, LLC | ||||
| 31 | AR Land East, LLC | ||||
| 32 | AR Land West, LLC | ||||
| 33 | AR WTO, LLC | ||||
| 34 | BB Farmington NM, LLC | ||||
| 35 | DD 71, LLC | ||||
| 36 | LSDW Derby CT, LLC | ||||
| 37 | Lunacorp, LLC | ||||
| 38 | Pachyderm Chattanooga TN, LLC | ||||
| 39 | Pachyderm Marietta GA, LLC | ||||
| 40 | Pachyderm Myrtle Beach SC, LLC | ||||
| 41 | Pachyderm Philadelphia PA, LLC | ||||
| 42 | Pachyderm Properties, LLC | ||||
| 43 | Pachyderm Riverdale GA, LLC | ||||
| 44 | Pachyderm Waite Park MN, LLC | ||||
| 45 | Paint PA, LLC | ||||
| 46 | 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
| 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
 | ||||||||
111 S. Calvert Street, 27th Floor Baltimore, MD 21202-6174 TEL 410.528.5600 FAX 410.528.5650 www.ballardspahr.com | ||||||||
September 22, 2026
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 $400,000,000 aggregate principal amount of 5.650% Notes due 2036 (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. 333-295307) filed with the United States Securities and Exchange Commission (the “Commission”) on April 24, 2026 (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”):
(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
BALLARD SPAHR LLP Agree Realty Corporation Agree Limited Partnership September 22, 2026 Page 2 | ||||||||
“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, Articles Supplementary filed with the Department on September 13, 2021 and Articles of Amendment filed with the Department on May 16, 2025;
(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, as further amended and restated by the Second Amended and Restated Bylaws, adopted as of December 6, 2024 (the “Bylaws”);
(iii)the Articles of Organization of the Maryland Guarantor filed with the Department on July 14, 2011 and the Articles of Amendment of the Maryland Guarantor filed with the Department on June 30, 2024 (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 September 22, 2026 Page 3 | ||||||||
(xi)resolutions adopted by the Board of Directors of the Company, or a duly authorized committee thereof, on or as of April 24, 2026, September 8, 2026 and September 17, 2026 (together, the “Directors’ Resolutions”);
(xii)resolutions adopted by the sole member of each of the Subsidiary Guarantors, on or as of September 8, 2026 (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 September 22, 2026, 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 September 22, 2026 (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 September 22, 2026 (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;
(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;
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(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;
(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
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(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.
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
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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
September 22, 2026
Agree Realty Corporation
32301 Woodward Avenue
Royal Oak, Michigan 48073
Re: | $400,000,000 aggregate principal amount of 5.650% Notes due 2036 | ||||
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 September 17, 2026 (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, J.P. Morgan Securities LLC, U.S. Bancorp Investments, Inc., 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 B to this opinion letter. Pursuant to the Underwriting Agreement, the Underwriters have severally agreed to purchase from the Issuer $400,000,000 aggregate principal amount of 5.650% Notes due 2036 (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 (ii) 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
2
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 Opinion Documents permitting enforcement of the Opinion 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.
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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
4
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 | |||||
5
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
1
Exhibit B
Documents
Opinion Documents
1.Underwriting Agreement
2.Guarantee, dated September 22, 2026, 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 September 22, 2026, of the Issuer and the Parent Guarantor (the “Officer’s Certificate,” and together with the Base Indenture, the “Indenture”).
4.Global Note, dated September 22, 2026, representing 5.650% Notes due 2036 in the principal amount of $400,000,000, CUSIP No. 008513 AG8, ISIN No. US008513AG88.
1
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.
1
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 August 31, 2026.
2.Certificate of Status of Agree St Petersburg, LLC issued by the Florida Secretary of State on August 31, 2026.
3.Certificate of Status of Agree Tallahassee, LLC issued by the Florida Secretary of State on August 31, 2026.
4.Certificate of Existence of Agree Wilmington, LLC issued by the North Carolina Secretary of State on August 31, 2026.
5.Certificate of Existence of DD Brownsville LLC issued by the North Carolina Secretary of State on August 31, 2026.
6.Certificate of Existence of DD Hempstead LLC issued by the North Carolina Secretary of State on August 31, 2026.
2
Exhibit 5.4
| 1000 Main Street, 36th Floor Houston, Texas 77002 Telephone {713} 226-6000 Telecopier {713} 228-1331 porterhedges.com | |||||||
September 22, 2026
018392/0001
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 (“Agree LP”), in connection with an Underwriting Agreement dated September 17, 2026 (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, J.P. Morgan Securities LLC, U.S. Bancorp Investments, Inc. 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 $400,000,000 aggregate principal amount of 5.650% Notes due 2036 (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 September 22, 2026, 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 April 24, 2026, the Parent Guarantor, Agree LP and the Subsidiary Guarantors filed a Registration Statement on Form S-3ASR (Registration No. 333-295307) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, 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.
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 September 17, 2026, and filed with the Commission on September 17, 2026; (iv) Agree LP’s Free Writing Prospectuses, each dated
Agree Realty Corporation
September 22, 2026
Page 2
September 17, 2026 and filed with the Commission on September 17, 2026; (v) Agree LP’s final prospectus supplement, dated September 17, 2026, and filed with the Commission on September 18, 2026; (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.
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
Agree Realty Corporation
September 22, 2026
Page 3
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 | |||||