8-K - ADC - Equibles

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

______________

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of report (Date of

earliest event reported): May 5, 2023

AGREE REALTY CORPORATION

(Exact name of registrant as specified in its charter)

Maryland

(State of other jurisdiction of incorporation)

1-12928<br><br> <br>(Commission file number)	38-3148187<br><br> <br>(I.R.S. Employer Identification No.)
70 E. Long Lake Road<br><br> <br>Bloomfield Hills, MI<br><br> <br>(Address of principal<br> executive offices)	48304<br><br> <br>(Zip code)

(Registrant’s telephone number, including area code)

(248) 737-4190

Not applicable

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

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

¨	Written communications pursuant to Rule 425<br>under the Securities Act (17 CFR 230.425)
¨	Soliciting material pursuant to Rule 14a-12<br>under the Exchange Act (17 CFR 240.14a-12)
¨	Pre-commencement communications pursuant to<br>Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨	Pre-commencement communications pursuant to<br>Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

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

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, $.0001 par value	ADC	New York Stock Exchange
Depositary Shares, each representing one-thousandth of a share of 4.25% Series A Cumulative Redeemable Preferred Stock, $0.0001 par value	ADCPrA	New York Stock Exchange

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

Emerging growth company ¨

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

Item 8.01.	Other Events.

On May 5, 2023, Agree Realty Corporation, a Maryland corporation (the “Company”), filed with the Securities and Exchange Commission (“SEC”) a prospectus supplement, dated May 5, 2023, pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the “ATM Prospectus”), relating to the offer and sale of shares of common stock remaining unsold under the Company’s existing at-the-market equity offering program. The ATM Prospectus was filed as a result of the Company filing with the SEC a new shelf registration statement on Form S-3 (No. 333-271668) on May 5, 2023 (the “New Registration Statement”), which became immediately effective upon filing and replaced the Company’s previously filed shelf registration statement on Form S-3. An opinion of Ballard Spahr LLP with respect to the validity of the shares of common stock that may be issued and offered pursuant to the ATM Prospectus and the accompanying prospectus is filed herewith as Exhibit 5.1.

In connection with the Company’s filing of the New Registration Statement, on May 5, 2023 the Company and Agree Limited Partnership, for which the Company is the sole general partner, entered into separate amendments (collectively, the “Amendment”) to the Equity Distribution Agreements, dated September 2, 2022 with each of Capital One Securities, Inc. and Stifel, Nicolaus & Company, Incorporated (collectively, the “Non-Forward ATM Equity Distribution Agreements”) and with Wells Fargo Securities, LLC (“Wells Fargo Securities”), BofA Securities, Inc. (“BofA Securities”), Citigroup Global Markets Inc. (“Citigroup”), J.P. Morgan Securities LLC (“J.P. Morgan”), Jefferies LLC (“Jefferies”), Morgan Stanley & Co. LLC (“Morgan Stanley”) and Raymond James Associates, Inc. (“Raymond James”) (collectively, the “Forward ATM Equity Distribution Agreements”, and together with the Non-Forward ATM Equity Distribution Agreements, the “ATM Equity Distribution Agreements”), pursuant to which the Company may issue and sell, from time to time, shares of the Company’s common stock, $0.0001 par value per share, representing the unsold amount available under the Company’s at-the-market offering program. On May 5, 2023, the Company and Agree Limited Partnership also entered into an Equity Distribution Agreement with Robert W. Baird & Co. Incorporated ("Baird") in substantially the same form as the Forward ATM Equity Distribution Agreements.

The Amendment provides that shares of common stock to be sold pursuant to the Equity Distribution Agreement will be issued pursuant to a prospectus dated May 5, 2023, and a prospectus supplement filed with the Securities and Exchange Commission on May 5, 2023, in connection with one or more offerings of shares from the Company’s New Registration Statement. Sales of the Shares, if any, may be made in negotiated transactions, which may include block trades, or transactions that are deemed to be “at the market” offerings as defined in Rule 415 under the Securities Act of 1933, as amended, including sales made directly on the New York Stock Exchange or sales made to or through a market maker other than on an exchange.

This Current Report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of these securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.

The amendments to the ATM Equity Distribution Agreements are filed as Exhibits 1.3 and 1.4, respectively, to this Current Report on Form 8-K, and are incorporated herein by reference. The foregoing description of the ATM Equity Distribution Agreements and the transactions contemplated thereby is qualified in its entirety by reference to Exhibits 1.1, 1.2, 1.3 and 1.4.

Exhibits 5.1 and 23.1 to this Current Report on Form 8-K are filed herewith in connection with the Company’s effective registration statement on Form S-3 (Registration No. 333-271668) and are incorporated herein by reference.

Item 9.01.	Financial Statements and Exhibits.
(d)	Exhibits.
---	---
Exhibit	Description
---	---
1.1	Form of Non-Forward ATM Equity Distribution Agreement (incorporated by reference to Exhibit 1.1 to Agree Realty Corporation’s Current Report on Form 8-K filed on September 2, 2022)
1.2	Form of Forward ATM Equity Distribution Agreement (incorporated by reference to Exhibit 1.2 to Agree Realty Corporation’s Current Report on Form 8-K filed on September 2, 2022)
1.3	Form of Amendment No. 1 to Equity Distribution Agreement (Non-Forward)
1.4	Form of Amendment No. 1 to Equity Distribution Agreement (Forward)
5.1	Opinion of Ballard Spahr LLP regarding the validity of the shares to be issued and offered.
23.1	Consent of Ballard Spahr LLP (included in Exhibit 5.1).
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
	By:	/s/ Peter Coughenour
		Name:	Peter Coughenour
		Title:	Chief Financial Officer and Secretary
Date: May 5, 2023

Exhibit 1.3

Agree Realty Corporation

(a Maryland corporation)

Shares of Common Stock

(Par Value $0.0001)

AMENDMENT NO. 1 TO THE EQUITY DISTRIBUTION AGREEMENT

May 5, 2023

[ · ]<br><br> <br>[ · ]<br><br> <br>[ · ]

To the addressee set forth above:

The Agreement contemplates the offering and sale of Shares pursuant to the Company’s automatic shelf registration statement on Form S-3 (File No. 333-238729). The Company has filed with the Commission (i) an automatic shelf registration statement on Form S-3 (File No. 333-[ · ]) relating to, among other things, the Company’s Common Stock (which new registration statement became effective upon the filing thereof with the Commission on the date hereof) and (ii) a prospectus supplement dated May 5, 2023 relating to the Securities and an accompanying prospectus dated May 5, 2023.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this agreement, and for other good and valuable consideration the receipt and sufficiency of which the Company, the Operating Partnership and the Manager (collectively, the “Parties”) hereto acknowledge, the Parties hereto agree as follows:

1.              Description of Securities. The second paragraph of Section 1 of the Agreement shall be replaced in its entirety with the following:

The Company has filed, in accordance with the provisions of the Securities Act, with the Commission a shelf registration statement on Form S-3 (File No. 333-[ · ]) on May 5, 2023, including a base prospectus, relating to certain securities, including the Securities to be issued from time to time by the Company, which shelf registration statement, including any amendments thereto, was declared effective by the Commission under the Securities Act and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement specifically relating to the Securities (the “Prospectus Supplement”) to the base prospectus included as part of such registration statement. The Company will furnish to the Manager, for use by the Manager copies, of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement, relating to the Securities. Except where the context otherwise requires, such registration statement, on each date and time that such registration statement and any post-effective amendment thereto became or becomes effective, including all documents 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) of the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act (the “Rule 430B Information”), is herein called the “Registration Statement.” The base prospectus included in the Registration Statement, including all documents incorporated therein by reference, as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) of the Securities Act, is herein called the “Prospectus.” The Company may file one or more additional registration statements (which shall be the Registration Statement) from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be the Prospectus Supplement), with respect to the Securities. Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein.

2.             Registration Statement and Prospectuses. The first paragraph of Section 5(a)(1) of the Agreement shall be replaced in its entirety with the following:

The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 of the Securities Act) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Company and the transactions contemplated by this Agreement meet the requirements for using Form S-3 under the Securities Act pursuant to the standards for such form as currently in effect and as in effect immediately prior to October 21, 1992 and the Securities have been and remain eligible for registration by the Company on such shelf registration statement. The Registration Statement was automatically deemed effective upon filing with the Commission on May 5, 2023. No stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings or examination under Section 8(d) or 8(e) of the Securities Act are pending before or, to the Company’s knowledge, threatened by the Commission. The Company is not the subject of a pending proceeding under Section 8A of the Securities Act in connection with the offering of the Securities. The Registration Statement meets the requirements set forth in Rule 415(a)(1)(x) and complies in all other material respects with such Rule. The Company has not received from the Commission any notice objecting to the use of the shelf registration statement form.

3.            Governing Law. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.

4.             Counterparts. This Amendment 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.

5.             Agreement Remains in Effect. Except as provided herein, all provisions, terms and conditions of the Agreement shall remain in full force and effect. As amended hereby, the Agreement is ratified and confirmed in all respects.

Terms used herein but not otherwise defined are used herein as defined in the Agreement.

[Signature Page Follows]

If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Manager, the Operating Partnership and the Company in accordance with its terms.

Very truly yours,
AGREE REALTY CORPORATION
By:
Name:
Title:
AGREE LIMITED PARTNERSHIP
By: Agree Realty Corporation, its General Partner
By:
Name:
Title:

[Agree Realty Corporation Equity DistributionAgreement Amendment No. 1 Signature Page]

The foregoing Amendment No. 1 to the Agreement is hereby confirmed and accepted as of the date first written above.
[· ], AS MANAGER
By:
	Name:
	Title:

[Agree Realty Corporation Equity DistributionAgreement Amendment No. 1 Signature Page]

Exhibit 1.4

Agree Realty Corporation

(a Maryland corporation)

Shares of Common Stock

(Par Value $0.0001)

AMENDMENT NO. 1 TO THE EQUITY DISTRIBUTION AGREEMENT

May 5, 2023

[ · ]<br><br> <br>[ · ]<br><br> <br>[ · ]

To the addressee set forth above:

Reference is made to the Equity Distribution Agreement, dated September 2, 2022 (the “Agreement”), by and among Agree Realty Corporation, a Maryland corporation (the “Company”), Agree Limited Partnership, a Delaware limited Partnership (the “Operating Partnership”), [ · ] (in its capacity as purchaser under any Forward Contract, the “Forward Purchaser”) and [ · ] (in its capacity as agent for the Company and/or principal in connection with the offering and sale of any Issuance Securities pursuant to the Agreement, the “Manager,” and in its capacity as agent for the Forward Purchaser in connection with the offering and sale of any Forward Hedge Securities pursuant to the Agreement, the “Forward Seller”).

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this agreement, and for other good and valuable consideration the receipt and sufficiency of which the Company, the Operating Partnership, the Manager, the Forward Purchaser and the Forward Seller (collectively, the “Parties”) hereto acknowledge, the Parties hereto agree as follows:

1.             Description of Securities. The second paragraph of Section 1 of the Agreement shall be replaced in its entirety with the following:

The Company has filed, in accordance with the provisions of the Securities Act, with the Commission a shelf registration statement on Form S-3 (File No. 333-[ · ]) on May 5, 2023 including a base prospectus, relating to certain securities, including the Securities to be issued from time to time by the Company, which shelf registration statement, including any amendments thereto, was declared effective by the Commission under the Securities Act and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement specifically relating to the Securities (the “Prospectus Supplement”) to the base prospectus included as part of such registration statement. The Company will furnish to the Manager or the Forward Seller, as applicable, for use by the Manager or the Forward Seller, as applicable, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement, relating to the Securities. Except where the context otherwise requires, such registration statement, on each date and time that such registration statement and any post-effective amendment thereto became or becomes effective, including all documents 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) of the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act (the “Rule 430B Information”), is herein called the “Registration Statement.” The base prospectus included in the Registration Statement, including all documents incorporated therein by reference, as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) of the Securities Act, is herein called the “Prospectus.” The Company may file one or more additional registration statements (which shall be the Registration Statement) from time to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be the Prospectus Supplement), with respect to the Securities. Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein.

2.             Registration Statement and Prospectuses. The first paragraph of Section 5(a)(1) of the Agreement shall be replaced in its entirety with the following:

The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405 of the Securities Act) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. The Company and the transactions contemplated by this Agreement meet the requirements for using Form S-3 under the Securities Act pursuant to the standards for such form as currently in effect and as in effect immediately prior to October 21, 1992 and the Securities have been and remain eligible for registration by the Company on such shelf registration statement. The Registration Statement was automatically deemed effective upon filing with the Commission on May 5, 2023. No stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings or examination under Section 8(d) or 8(e) of the Securities Act are pending before or, to the Company’s knowledge, threatened by the Commission. The Company is not the subject of a pending proceeding under Section 8A of the Securities Act in connection with the offering of the Securities. The Registration Statement meets the requirements set forth in Rule 415(a)(1)(x) and complies in all other material respects with such Rule. The Company has not received from the Commission any notice objecting to the use of the shelf registration statement form.

5.              Agreement Remains in Effect. Except as provided herein, all provisions, terms and conditions of the Agreement shall remain in full force and effect. As amended hereby, the Agreement is ratified and confirmed in all respects.

Terms used herein but not otherwise defined are used herein as defined in the Agreement.

[Signature Page Follows]

If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Manager, the Forward Seller, the Forward Purchaser, the Operating Partnership and the Company in accordance with its terms.

Very<br> truly yours,
AGREE<br> REALTY CORPORATION
By:
Name:
Title:
AGREE<br> LIMITED PARTNERSHIP
By:<br> Agree Realty Corporation, its General Partner
By:
Name:
Title:

[Agree Realty Corporation Equity DistributionAgreement Amendment No. 1 Signature Page]

The foregoing Amendment No. 1 to the Agreement is hereby confirmed<br>and accepted as of the date first written above.
[· ], AS MANAGER
By:
	Name:
	Title:
[· ], AS FORWARD SELLER
By:
	Name:
	Title:
[· ], AS FORWARD PURCHASER
By:
	Name:
	Title:

[Agree Realty Corporation Equity DistributionAgreement Amendment No. 1 Signature Page]

Exhibit 5.1

****

May 5, 2023

Agree Realty Corporation

70 East Long Lake Rd.

Bloomfield Hills, Michigan 48304

Re:	Agree Realty Corporation, a Maryland corporation (the “Company”)

Ladies and Gentlemen:

We have acted as Maryland corporate counsel to the Company in connection with certain matters of Maryland law arising out of the registration of shares of common stock, par value $0.0001 per share (“Common Stock”), of the Company having a maximum aggregate offering price of $750,000,000 (the “Shares”) to be sold in an at-the-market offering (the “Offering”), pursuant to the Registration Statement on Form S-3 originally filed by the Company with the United States Securities and Exchange Commission (the “Commission”) on May 5, 2023 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”). You have requested our opinion with respect to the matters set forth below.

In our capacity as Maryland corporate counsel to the Company 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 “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, Articles of Amendment filed with the Department on May 3, 2016, Articles Supplementary filed with the Department on February 26, 2019, Articles of Amendment filed with the Department on April 25, 2019, Articles of Amendment filed with the Department on May 7, 2021 and Articles Supplementary filed with the Department on September 13, 2021;

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

BALLARD SPAHR LLP

Agree Realty Corporation

May 5, 2023

Page 2

(iii)             resolutions adopted by the Board of Directors of the Company, or a duly authorized committee thereof, on or as of September 1, 2022, September 1, 2022 and May 4, 2023 (collectively, the “Directors’ Resolutions”);

(iv)              the Registration Statement and the related base prospectus dated May 5, 2023 (the “Base Prospectus”), and the related prospectus supplement dated May 5, 2023 (the “Prospectus Supplement” and together with the Base Prospectus, the “Prospectus”);

(v)                a copy of each of the fully executed (a) Equity Distribution Agreement, dated as of September 2, 2022, as amended by Amendment No. 1 to the Equity Distribution Agreement, dated as of May 5, 2023 (the “Wells Fargo Equity Distribution Agreement”), by and among the Company, Agree Limited Partnership, a Delaware limited partnership of which the Company acts as the general partner (the “Operating Partnership”), and Wells Fargo Securities, LLC, as agent and/or principal and as forward seller, and the forward purchaser party thereto, (b) the Equity Distribution Agreement, dated as of September 2, 2022, as amended by Amendment No. 1 to the Equity Distribution Agreement, dated as of May 5, 2023 (the “BofA Equity Distribution Agreement”), by and among the Company, the Operating Partnership and BofA Securities, Inc., as agent and/or principal and as forward seller, and the forward purchaser party thereto, (c) the Equity Distribution Agreement, dated as of September 2, 2022, as amended by Amendment No. 1 to the Equity Distribution Agreement, dated as of May 5, 2023 (the “Capital One Equity Distribution Agreement”), by and among the Company, the Operating Partnership and Capital One Securities, Inc., as agent and/or principal, (d) the Equity Distribution Agreement, dated as of September 2, 2022, as amended by Amendment No. 1 to the Equity Distribution Agreement, dated as of May 5, 2023 (the “Citigroup Equity Distribution Agreement”), by and among the Company, the Operating Partnership and Citigroup Global Markets Inc., as agent and/or principal and as forward seller, and the forward purchaser party thereto, (e) the Equity Distribution Agreement, dated as of September 2, 2022, as amended by Amendment No. 1 to the Equity Distribution Agreement, dated as of May 5, 2023 (the “Jefferies Equity Distribution Agreement”), by and among the Company, the Operating Partnership and Jefferies LLC, as agent and/or principal and as forward seller, and the forward purchaser party thereto, (f) the Equity Distribution Agreement, dated as of September 2, 2022, as amended by Amendment No. 1 to the Equity Distribution Agreement, dated as of May 5, 2023 (the “J.P. Morgan Equity Distribution Agreement”), by and among the Company, the Operating Partnership and J.P. Morgan Securities LLC, as agent and/or principal and as forward seller, and the forward purchaser party thereto, (g) the Equity Distribution Agreement, dated as of September 2, 2022, as amended by Amendment No. 1 to the Equity Distribution Agreement, dated as of May 5, 2023 (the “Morgan Stanley Equity Distribution Agreement”), by and among the Company, the Operating Partnership and Morgan Stanley & Co. LLC, as agent and/or principal and as forward seller, and the forward purchaser party thereto, (h) the Equity Distribution Agreement, dated as of September 2, 2022, as amended by Amendment No. 1 to the Equity Distribution Agreement, dated as of May 5, 2023 (the “Raymond James Equity Distribution Agreement”), by and among the Company, the Operating Partnership and Raymond James & Associates, Inc., as agent and/or principal and as forward seller, and the forward purchaser party thereto, (i) the Equity Distribution Agreement, dated as of May 5, 2023 (the “Baird Equity Distribution Agreement”), by and among the Company, the Operating Partnership and Robert W. Baird & Co. Incorporated, as agent and/or principal and as forward seller, and the forward purchaser party thereto, and (j) the Equity Distribution Agreement, dated as of September 2, 2022, as amended by Amendment No. 1 to the Equity Distribution Agreement, dated as of May 5, 2023 (the “Stifel Equity Distribution Agreement”, and together with the Wells Fargo Equity Distribution Agreement, the BofA Equity Distribution Agreement, the Capital One Equity Distribution Agreement, the Citigroup Equity Distribution Agreement, the Jefferies Equity Distribution Agreement, the J.P. Morgan Equity Distribution Agreement, the Morgan Stanley Equity Distribution Agreement, the Raymond James Equity Distribution Agreement and the Baird Equity Distribution Agreement, collectively, the “Equity Distribution Agreements”), by and among the Company, the Operating Partnership and Stifel, Nicolaus & Co. Incorporated, as agent and/or principal;

BALLARD SPAHR LLP

Agree Realty Corporation

May 5, 2023

Page 3

(vi)             a certificate of one or more officers of the Company, dated as of a recent date (the “Officers’ Certificate”), to the effect that, among other things, the Charter, the Bylaws and the Directors’ Resolutions 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 Equity Distribution Agreements;

(vii)            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; and

(viii)          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) is duly authorized to do so;

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

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

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

BALLARD SPAHR LLP

Agree Realty Corporation

May 5, 2023

Page 4

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

(f)                 none of the Shares will be issued or transferred in violation of the provisions of Article Ninth of the Charter relating to restrictions on ownership and transfer of shares of stock of the Company;

(g)                none of the Shares will be issued and sold to an Interested Stockholder of the Company or an Affiliate thereof, all as defined in Subtitle 6 of Title 3 of the Maryland General Corporation Law (the “MGCL”), in violation of Section 3-602 of the MGCL;

(h)                the aggregate offering price of all of the Shares will not exceed $750,000,000 (including the aggregate offering price of Shares sold to date), and the aggregate number of Shares to be issued and sold pursuant to the Equity Distribution Agreements will not exceed the maximum number of Shares authorized for issuance and sale in the Directors’ Resolutions;

(i)                 the price per share to be received by the Company for each of the Shares to be issued and sold pursuant to the Equity Distribution Agreements will be determined in accordance with, and will not be less than the applicable minimum price per share set forth in, the Directors’ Resolutions; and

(j)                 upon each issuance of any of the Shares subsequent to the date hereof, the total number of shares of Common Stock of the Company issued and outstanding, after giving effect to such issuance of such Shares, will not exceed the total number of shares of Common Stock that the Company is authorized to issue under its Charter.

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.                   The Shares to be issued in the Offering have been duly authorized by all necessary corporate action on the part of the Company, and when such Shares are issued and delivered by the Company in exchange for payment therefor, in accordance with the Equity Distribution Agreements and the Directors’ Resolutions, such Shares will be validly issued, fully paid and non-assessable.

The foregoing opinions are limited to the substantive laws of the State of Maryland, and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. 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, we do not express any opinion on such matter.

BALLARD SPAHR LLP

Agree Realty Corporation

May 5, 2023

Page 5

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 Shares, 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 Shares. We also consent to the identification of our firm as Maryland corporate counsel to the Company 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