Agree Realty Corp S-3ASR, filed May 5, 2023

Agree Realty Corp (ADC)

S-3ASR 2023-05-05

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	Large accelerated filer ☒						Accelerated Filer ☐
	Non-accelerated filer ☐						Smaller reporting company ☐
							Emerging growth company ☐

	Large accelerated filer ☐						Accelerated Filer ☐
	Non-accelerated filer ☒						Smaller reporting company ☐
							Emerging growth company ☐

Exact Name of Co-Registrant as Specified in Its Charter	Primary Standard Industrial Classification Number		State or Other Jurisdiction of Incorporation or Organization	I.R.S. Employer Identification No.
Agree 117 Mission, LLC		6798	Michigan		46-1205730
Agree 2016, LLC		6798	Delaware		81-4636275
Agree Central, LLC		6798	Delaware		84-3616016
Agree Chapel Hill NC, LLC		6798	Delaware		84-5168650
Agree Columbia SC, LLC		6798	Delaware		47-2368090
Agree Convenience No. 1, LLC		6798	Delaware		84-2733036
Agree CW, LLC		6798	Delaware		81-2971593
Agree DT Jacksonville NC, LLC		6798	Delaware		81-2971593
Agree Farmington NM, LLC		6798	Delaware		82-5273068
Agree Grandview Heights OH, LLC		6798	Delaware		82-1191574
Agree Greenwich CT, LLC		6798	Delaware		84-2278475
Agree MCW, LLC		6798	Delaware		81-4589003
Agree Mena AR, LLC		6798	Delaware		85-3225745
Agree NJ, LLC		6798	Delaware		86-1707819
Agree Onaway MI, LLC		6798	Delaware		82-4433864
Agree Orange CT, LLC		6798	Delaware		84-2711782
Agree Oxford Commons AL, LLC		6798	Delaware		82-1140026
Agree Paterson NJ, LLC		6798	Delaware		26-1868180
Agree SB, LLC		6798	Delaware		83-0872803
Agree Secaucus NJ, LLC		6798	Delaware		82-2995927
Agree Shelf ES PA, LLC		6798	Delaware		84-2631431
Agree Shelf PA, LLC		6798	Delaware		84-2641390
Agree Southfield, LLC		6798	Michigan		45-3230027
Agree St Petersburg, LLC		6798	Florida		46-0694862
Agree Stores, LLC		6798	Delaware		81-4625476
Agree TK, LLC		6798	Delaware		82-4201979
Lunacorp, LLC		6798	Delaware		47-2908669
Pachyderm Chattanooga TN, LLC		6798	Delaware		83-2989869
Pachyderm Marietta GA, LLC		6798	Delaware		83-4242603
Pachyderm Myrtle Beach SC, LLC		6798	Delaware		83-3016339
Pachyderm Philadelphia PA, LLC		6798	Delaware		83-3037584
Pachyderm Properties, LLC		6798	Delaware		83-2766795
Pachyderm Riverdale GA, LLC		6798	Delaware		83-3051205
Pachyderm Waite Park MN, LLC		6798	Delaware		83-4264620
Paint PA, LLC		6798	Delaware		26-4521871
Mt. Pleasant Shopping Center, L.L.C.		6798	Michigan		38-6271903
Agree Lebanon NH, LLC		6798	Delaware		85-0896055
Safari Properties II, LLC		6798	Delaware		88-0620490
DD Hempstead LLC		6798	North Carolina		92-1666046
DD Brownsville LLC		6798	North Carolina		92-1666046
Agree Tallahassee, LLC		6798	Florida		24-4186121
Agree Roseville CA, LLC		6798	California		45-3093529
Agree Fort Walton Beach, LLC		6798	Florida		45-3443716
Agree Madison AL, LLC		6798	Delaware		45-2836875
Agree Walker, LLC		6798	Michigan		45-4127458
Agree M-59, LLC		6798	Michigan		27-4241411
Agree Spring Grove, LLC		6798	Illinois		27-4141085
Agree Wilmington, LLC		6798	North Carolina		27-4097820
Agree Dallas Forest Drive, LLC		6798	Texas		45-2831937
Agree Marietta, LLC		6798	Georgia		45-2448012
Agree Wawa Baltimore, LLC		6798	Maryland		45-2758549
Agree Charleston WV, LLC		6798	Delaware		92-1187114
Agree Absecon Urban Renewal, LLC		6798	New Jersey	Not applicable

	PROSPECTUS SUMMARY					1
	RISK FACTORS					2
	GUARANTOR DISCLOSURES					3
	CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS					4
	USE OF PROCEEDS					6
	DESCRIPTION OF COMMON STOCK					7
	DESCRIPTION OF PREFERRED STOCK					14
	DESCRIPTION OF DEPOSITARY SHARES					19
	DESCRIPTION OF WARRANTS					23
	DESCRIPTION OF DEBT SECURITIES AND RELATED GUARANTEES					24
	MATERIAL FEDERAL INCOME TAX CONSIDERATIONS					32
	PLAN OF DISTRIBUTION					59
	WHERE YOU CAN FIND MORE INFORMATION					62
	INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE					62
	EXPERTS					63
	LEGAL MATTERS					63

Securities and Exchange Commission registration fee	$	*
Accountants’ fees and expenses	$	**
Legal fees and expenses	$	**
Printing expenses	$	**
Miscellaneous	$	**
Total	$	**

	Exhibit No.			Description
	1.1*			Form of Underwriting Agreement.
	3.1			Articles of Incorporation of the Company, including all amendments and articles supplementary thereto (previously filed as Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2013, and incorporated herein by reference).
	3.2			Amendment to the Articles of Incorporation of the Company (previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on May 6, 2015, and incorporated herein by reference).
	3.3			Amendment to the Articles of Incorporation of the Company (previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on May 3, 2016, and incorporated herein by reference).
	3.4			Amendment to Articles of Incorporation of the Company (previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on May 10, 2021, and incorporated herein by reference).
	3.5			Articles Supplementary of the Company, dated February 26, 2019 (previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on February 28, 2019, and incorporated herein by reference).
	3.6			Articles of Amendment of the Company (previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on April 25, 2019, and incorporated herein by reference).
	3.7			Articles Supplementary of the Company, dated September 13, 2021 (previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on September 13, 2021, and incorporated herein by reference).
	3.8			Amended and Restated Bylaws of the Company (previously filed as Exhibit 3.2 to the Company’s Current Report on Form 8-K filed on May 9, 2013, and incorporated herein by reference).
	3.9			First Amendment to Amended and Restated Bylaws of Agree Realty Corporation, effective February 26, 2019 (previously filed as Exhibit 3.2 to the Company’s Current Report on Form 8-K filed on February 28, 2019, and incorporated herein by reference).
	3.10			Second Amendment to First Amended and Restated Agreement of Limited Partnership of Agree Limited Partnership (previously filed as Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on May 3, 2013, and incorporated herein by reference).
	3.11			First Amended and Restated Agreement of Limited Partnership of Agree Limited Partnership (previously filed as Exhibit 10.3 to the Company’s Annual Report on Form 10-K filed on May 28, 2013, and incorporated herein by reference).
	3.12			Certificate of Limited Partnership of Agree Limited Partnership (previously filed as Exhibit 4.8 to the Company’s registration statement on Form S-3ASR filed on May 27, 2020, and incorporated herein by reference).
	4.1			Amended and Restated Registration Rights Agreement, dated July 8, 1994 by and among the Company, Richard Agree, Edward Rosenberg and Joel Weiner (previously filed as Exhibit 10.2 to the Company’s Annual Report on Form 10-K for the year ended December 31, 1994, and incorporated herein by reference).
	4.2			Form of certificate representing shares of common stock (previously filed as Exhibit 4.2 to the Company’s Registration Statement on Form S-3 filed with the SEC on August 24, 2009, and incorporated herein by reference).
	4.3			Form of 4.32% Senior Guaranteed Note, Series 2018-A, due September 26, 2030 (previously filed as Exhibit 4.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2018, and incorporated herein by reference).
	4.4			Form of 4.32% Senior Guaranteed Note, Series 2018-B, due September 26, 2030 (previously filed as Exhibit 4.2 to the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2018, and incorporated herein by reference).

	Exhibit No.			Description
	4.5*			Form of certificate representing shares of preferred stock.
	4.6*			Form of Deposit Agreement.
	4.7*			Form of Depositary Receipt.
	4.8*			Form of Warrant.
	4.9*			Form of Warrant Agreement and Warrant Certificate.
	4.10			Indenture, dated as of August 17, 2020, among the Agree Limited Partnership, Agree Realty Corporation and U.S. Bank National Association (previously filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on August 17, 2020, and incorporated herein by reference).
	4.11*			Form of Supplemental Indenture.
	4.12			Indenture Officer’s Certificate, dated as of May 14, 2021, among Agree Limited Partnership, Agree Realty Corporation and U.S. Bank National Association (previously filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on May 14, 2021, and incorporated herein by reference).
	4.13			Indenture Officer’s Certificate, dated as of August 17, 2020, among Agree Limited Partnership, Agree Realty Corporation and U.S. Bank National Association (previously filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on August 17, 2020, and incorporated herein by reference).
	4.14			Indenture Officer’s Certificate, dated as of August 22, 2022, among Agree Limited Partnership, Agree Realty Corporation and U.S. Bank National Association (previously filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on August 22, 2022, and incorporated herein by reference).
	4.15*			Form of Debt Security.
	4.16			Form of Global Note for 2.900% Notes due 2030 (previously filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on August 17, 2020, and incorporated herein by reference).
	4.17			Form of Guarantee by and among Agree Limited Partnership, the Guarantors named therein and U.S. Bank National Association (previously filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on August 17, 2020, and incorporated herein by reference).
	4.18			Form of Global Note for 2.000% Notes due 2028 (previously filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on May 14, 2021, and incorporated herein by reference).
	4.19			Form of 2028 Guarantee by and among Agree Limited Partnership, Agree Realty Corporation and U.S. Bank National Association (previously filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on May 14, 2021, and incorporated herein by reference).
	4.20			Form of Global Note for 2.600% Notes due 2033 (previously filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on May 14, 2021, and incorporated herein by reference).
	4.21			Form of 2033 Guarantee by and among Agree Limited Partnership, Agree Realty Corporation and U.S. Bank National Association (previously filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on May 14, 2021, and incorporated herein by reference).
	4.22			Master Deposit Agreement, 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 the Company, dated as of September 17, 2022 (previously filed as Exhibit 4.1 to the Company’s Registration Statement on Form 8-A filed on September 17, 2021, and incorporated herein by reference).

	Exhibit No.			Description
	4.23			Form of Global Note for 4.800% Notes due 2032 (previously filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on August 22, 2022, and incorporated herein by reference).
	4.24			Form of 2032 Guarantee by and among Agree Limited Partnership, Agree Realty Corporation and U.S. Bank National Association (previously filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on August 22, 2022, and incorporated herein by reference).
	5.1*			Opinion of Ballard Spahr LLP.
	5.2*			Opinion of Honigman LLP.
	8.1			Opinion of Honigman LLP as to certain tax matters.
	22			Subsidiary Guarantors of Agree Realty Corporation (previously filed as Exhibit 22 to the Company’s Quarterly Report on Form 10-Q filed on May 4, 2023, and incorporated herein by reference).
	23.1			Consent of Grant Thornton LLP.
	23.2			Consent of Ballard Spahr LLP (included in Exhibit 5.1).
	23.3			Consent of Honigman LLP (included in Exhibit 5.2 and Exhibit 8.1).
	24.1			Power of Attorney for Agree Realty Corporation (included on signature page).
	24.2			Power of Attorney for Agree Limited Partnership and co-registrants (included on signature page).
	25.1			Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939.
	107.1			Filing Fee Table.

				AGREE REALTY CORPORATION
				By:			/s/ JOEL N. AGREE Name: Joel N. Agree Title: President and Chief Executive Officer

Signature	Title	Date
/s/ RICHARD AGREE Richard Agree	Executive Chairman	May 5, 2023
/s/ JOEL N. AGREE Joel N. Agree	President, Chief Executive Officer and Director (Principal Executive Officer)	May 5, 2023
/s/ PETER COUGHENOUR Peter Coughenour	Chief Financial Officer and Secretary (Principal Financial Officer)	May 5, 2023
/s/ STEPHEN BRESLIN Stephen Breslin	Chief Accounting Officer (Principal Accounting Officer)	May 5, 2023
/s/ KAREN DEARING Karen Dearing	Director	May 5, 2023
/s/ MIKE HOLLMAN Mike Hollman	Director	May 5, 2023
/s/ MICHAEL JUDLOWE Michael Judlowe	Director	May 5, 2023
/s/ JOHN RAKOLTA John Rakolta	Director	May 5, 2023

				AGREE LIMITED PARTNERSHIP
				By:			AGREE REALTY CORPORATION, its General Partner
				By:			/s/ JOEL N. AGREE Name: Joel N. Agree Title: President and Chief Executive Officer
				By:			/s/ PETER COUGHENOUR Name: Peter Coughenour Title: Chief Financial Officer and Secretary
				By:			/s/ STEPHEN BRESLIN Name: Stephen Breslin Title: Chief Accounting Officer

				By:			AGREE LIMITED PARNTERSHIP, its Sole Member
				By:			AGREE REALTY CORPORATION, its General Partner
				By:			/s/ JOEL N. AGREE Name: Joel N. Agree Title: President and Chief Executive Officer

Signature	Title**	Date
/s/ JOEL N. AGREE Joel N. Agree	President, Chief Executive Officer and Director (Principal Executive Officer)	May 5, 2023
/s/ PETER COUGHENOUR Peter Coughenour	Chief Financial Officer and Secretary (Principal Financial Officer)	May 5, 2023
/s/ STEPHEN BRESLIN Stephen Breslin	Chief Accounting Officer (Principal Accounting Officer)	May 5, 2023

Delaware	38-3170055
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

/s/ Jeffrey T. Grubb
Jeffrey T. Grubb

/s/ Robert D. Sznewajs
Robert D. Sznewajs

/s/ Dwight V. Board
Dwight V. Board

/s/ P. K. Chatterjee
P. K. Chatterjee

/s/ Robert Lane
Robert Lane

	12/31/2022
Assets
Cash and Balances Due From Depository Institutions	$	741,758
Securities		4,322
Federal Funds		0
Loans & Lease Financing Receivables		0
Fixed Assets		2,186
Intangible Assets		581,108
Other Assets		163,734
Total Assets	$	1,493,108

Liabilities
Deposits	$	0
Fed Funds		0
Treasury Demand Notes		0
Trading Liabilities		0
Other Borrowed Money		0
Acceptances		0
Subordinated Notes and Debentures		0
Other Liabilities		107,167
Total Liabilities	$	107,167

Equity
Common and Preferred Stock		200
Surplus		1,171,635
Undivided Profits		214,106
Minority Interest in Subsidiaries		0
Total Equity Capital	$	1,385,941

Total Liabilities and Equity Capital	$	1,493,108