UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Item 1.01 Entry into a Material Definitive Agreement.
The information set forth in Item 2.03 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 1.01.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
On May 13, 2024, Agree Limited Partnership (the “Issuer”), a Delaware limited partnership and subsidiary of Agree Realty Corporation, a Maryland corporation (the “Parent Guarantor”), completed an underwritten public offering of $450 million in aggregate principal amount of its 5.625% Notes due 2034 (the “Notes”).
The Notes are fully and unconditionally guaranteed (the “Guarantee”) by the Parent Guarantor and certain wholly owned subsidiaries of the Issuer that guarantee the Issuer’s debt or the debt of any other guarantor (the “Subsidiary Guarantors” and, together with the Parent Guarantor, the “Guarantors”). The terms of the Notes are governed by an indenture, dated as of August 17, 2020 (the “Base Indenture”), by and among the Issuer, the Parent Guarantor and U.S. Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association, as trustee (the “Trustee”), as amended and supplemented by an officer’s certificate, dated as of May 13, 2024, by and among the Issuer, the Parent Guarantor and the Trustee (the “Indenture Officer’s Certificate” and, together with the Base Indenture, the “Indenture”). The Indenture contains various restrictive covenants, including limitations on the ability of the Guarantors and the Issuer to incur additional indebtedness and requirements to maintain a pool of unencumbered assets. Copies of the Base Indenture, the Indenture Officer’s Certificate, the form of Note, and the form of Guarantee, the terms of which are hereby incorporated herein by reference, are filed or incorporated by reference as Exhibits 4.1, 4.2, 4.3, and 4.4, respectively, to this Current Report on Form 8-K (this “8-K”).
Pursuant to the Underwriting Agreement among the Issuer, the Guarantors and the underwriters named therein (the “Underwriters”) filed as Exhibit 1.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “Commission”) on May 8, 2024, the purchase price paid by the underwriters for the Notes was 98.177% of the principal amount thereof. The Notes are the Issuer’s senior unsecured obligations and rank equally in right of payment with all of the Issuer’s other existing and future senior unsecured indebtedness, including the Issuer’s 2.000% Notes due 2028, the Issuer’s 2.900% Notes due 2030, the Issuer’s 4.800% Notes due 2032 and the Issuer’s 2.600% Notes due 2033. The Notes are effectively subordinated in right of payment to: (i) all of the Issuer’s and any Guarantor’s existing and future mortgage indebtedness and other secured indebtedness (to the extent of the value of the collateral securing such indebtedness); (ii) all existing and future indebtedness and other liabilities, whether secured or unsecured of the Issuer’s subsidiaries that are not Subsidiary Guarantors and of any entity accounted for under the equity method of accounting; and (iii) all preferred equity not owned by the Issuer, if any, in its subsidiaries that are not Subsidiary Guarantors and in any entity accounted for under the equity method of accounting. The Notes bear interest at 5.625% per annum. Interest is payable on June 15 and December 15 of each year, beginning December 15, 2024, until the Notes’ maturity date of June 15, 2034.
Prior to March 15, 2034, the Notes will be redeemable in whole at any time or in part from time to time, at the Issuer’s option, at a redemption price equal to the greater of:
| · | an amount equal to 100% of the principal amount of the Notes to be redeemed; and |
| · | a make-whole premium as defined in and calculated in accordance with the Indenture; |
plus accrued and unpaid interest, if any, to but excluding the redemption date.
Notwithstanding the foregoing, if any of the Notes are redeemed on or after March 15, 2034 (three months prior to the maturity date of the Notes), the redemption price will equal 100% of the principal amount of such series of Notes to be redeemed plus accrued and unpaid interest, if any, up to, but not including, the redemption date.
Certain events are considered events of default, which may result in the accelerated maturity of the Notes, including:
| · | default for 30 days in the payment of any installment of interest under the Notes; |
| · | default in the payment of the principal amount or premium, if any, due with respect to the Notes, when the same becomes due and payable; |
| · |
failure by the Issuer or any Guarantor to comply with any of the Issuer’s or any Guarantor’s respective other agreements in the Notes or the Indenture with respect to the Notes upon receipt by the Issuer of notice of such default by the Trustee or by holders of not less than 25% in aggregate outstanding principal amount of the Notes then outstanding and the Issuer’s failure to cure (or obtain a waiver of) such default within 60 days after the Issuer receives such notice; | |
| · | failure to pay any debt (other than non-recourse debt) (a) of the Issuer, the Parent Guarantor or any Material Subsidiary (as defined in the Indenture) or any entity of which the Issuer is the general partner or managing member, and (b) in an outstanding principal amount in excess of $50,000,000 at final maturity or upon acceleration after the expiration of any applicable grace period, which debt is not discharged, or such default in payment or acceleration is not cured or rescinded, within 60 days after written notice to the Issuer from the Trustee (or to the Issuer and the Trustee from holders of at least 25% in outstanding principal amount of the Notes); |
| · | certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of the Issuer, the Parent Guarantor or any Material Subsidiary or all or substantially all of their respective property; and |
| · | the Guarantees of any Guarantor is not (or is claimed by any Guarantor in writing to the Trustee not to be) in full force and effect (other than in accordance with the terms of the Indenture) with respect to the Notes. |
The description of the Indenture in this 8-K is a summary and is qualified in its entirety by the terms of the Indenture.
Item 8.01 Other Events.
The offering closed on May 13, 2024 and resulted in net proceeds to the Parent Guarantor of approximately $440.8 million, after deducting the underwriting discount and the estimated offering expenses payable by the Issuer. The Notes were offered pursuant to (i) the shelf registration statement on Form S-3 (File No. 333-271668) which became effective upon filing with the Securities and Exchange Commission (the “Commission”) on May 5, 2023, as amended by post-effective amendment no. 1 filed with the Commission on May 6, 2024, (ii) the base prospectus dated May 5, 2023 and (iii) the prospectus supplement dated May 6, 2024, which was filed with the Commission pursuant to Rule 424(b) under the Securities Act of 1933, as amended. In connection with the filing of the prospectus supplement, an opinion of the Issuer’s and Guarantors’ counsel regarding the validity of the Notes and related Guarantee is filed with this 8-K as Exhibit 5.1, an opinion of Parent Guarantor’s counsel regarding certain Maryland law issues is filed with this 8-K as Exhibit 5.2.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit Description
| 4.2 | Indenture Officer’s Certificate, dated as of May 13, 2024, among the Issuer, the Parent Guarantor and the Trustee. |
| 4.3 | Form of Global Note for 5.625% Notes due 2034 (included in Exhibit 4.2). |
| 4.4 | Form of 2034 Guarantee by and among the Issuer, the Guarantors and the Trustee (included in Exhibit 4.2) |
| 5.1 | Opinion of Honigman LLP as to the validity of the Notes and the Guarantees. |
| 23.1 | Consent of Honigman LLP (included in Exhibit 5.1). |
| 23.2 | Consent of Ballard Spahr LLP (included in Exhibit 5.2). |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| AGREE REALTY CORPORATION | ||
| Date: May 13, 2024 | By: | /s/ Peter Coughenour |
| Peter Coughenour | ||
| Chief Financial Officer and Secretary | ||