UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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):
December 4, 2014
AGREE
REALTY CORPORATION
(Exact name of registrant as specified in its Charter)
Maryland |
1-12928 |
38-3148187 |
(State or other jurisdiction |
(Commission |
(IRS Employer |
of incorporation) |
File Number) |
Identification No.) |
370 E. Long Lake Rd., Bloomfield Hills, Michigan |
48304 |
(Address of principal executive offices) |
(Zip Code) |
|
(248) 737-4190 |
|
|
Registrant's telephone number, including area code |
|
Not applicable
(Former name or former address, if changed
since last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
On December 4, 2014,
Agree Realty Corporation (the “Company”) and Agree Limited Partnership, for which the Company is the sole general
partner, entered into an Underwriting Agreement with Raymond James & Associates, Inc. and Citigroup Global Markets Inc., as
representatives of the several underwriters listed on Schedule I attached thereto, (the “Underwriting Agreement”)
relating to the issuance and sale of a total of 2,587,500 shares, which includes 337,500 shares pursuant to the option granted
by the Company to the underwriters, as described below, (the “Shares”) of the Company’s common stock,
par value $0.0001 per share. The Company expects to receive net proceeds from this offering of approximately $73.4 million
(including the underwriters’ exercise of their option, as described below), after deducting estimated offering expenses payable
by the Company.
The Company granted
the underwriters an option, exercisable for 30 days after the date of the Underwriting Agreement, to purchase from time to time
up to an aggregate of 337,500 additional shares of common stock at a price of $29.67 per share. The underwriters elected to exercise
this option on December 5, 2014.
The offering closed
on December 9, 2014, and the Company issued the Shares pursuant to the Company’s registration statement on Form S-3 (File
No. 333-184095), which was declared effective by the Securities and Exchange Commission on October 15, 2012.
| Item 9.01 | Financial Statements and Exhibits |
Exhibit Number |
|
Description |
|
|
|
1.1 |
|
Underwriting Agreement dated as of December 4, 2014, among Agree Realty Corporation and Agree Limited Partnership, on the one hand, and Raymond James & Associates, Inc. and Citigroup Global Markets Inc. as representatives of the several underwriters listed on Schedule I attached thereto, on the other hand. |
5.1 |
|
Opinion of Ballard Spahr LLP regarding legality of the Shares. |
8.1 |
|
Opinion of Honigman Miller Schwartz and Cohn LLP regarding tax matters. |
23.1 |
|
Consent of Ballard Spahr LLP (included in Exhibit 5. 1) |
23.2 |
|
Consent of Honigman Miller Schwartz and Cohn LLP (included in Exhibit 8.1) |
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: December 9, 2014 |
By: |
/s/ BRIAN DICKMAN |
|
|
Brian Dickman, Chief Financial Officer and |
|
|
Secretary |
EXHIBIT INDEX
Exhibit Number |
|
Description |
|
|
|
1.1 |
|
Underwriting Agreement dated as of December 4, 2014, among Agree Realty Corporation and Agree Limited Partnership, on the one hand, and Raymond James & Associates, Inc. and Citigroup Global Markets Inc. as representatives of the several underwriters listed on Schedule I attached thereto, on the other hand. |
5.1 |
|
Opinion of Ballard Spahr LLP regarding legality of the Shares. |
8.1 |
|
Opinion of Honigman Miller Schwartz and Cohn LLP regarding tax matters. |
23.1 |
|
Consent of Ballard Spahr LLP (included in Exhibit 5. 1) |
23.2 |
|
Consent of Honigman Miller Schwartz and Cohn LLP (included in Exhibit 8.1) |
Exhibit 1.1
EXECUTION VERSION
AGREE REALTY CORPORATION
2,250,000 Shares of Common Stock
(Par Value $0.0001 Per Share)
UNDERWRITING AGREEMENT
December 4, 2014
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
As Representatives of the several Underwriters
named in Schedule I
Ladies and Gentlemen:
Agree Realty Corporation,
a Maryland corporation (the “Company”), and Agree Limited Partnership, a Delaware limited partnership (the “Operating
Partnership”), 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 Raymond James & Associates, Inc. and Citigroup Global Markets Inc. are acting as representatives (in such
capacity, if and as applicable, the “Representatives”) with respect to (i) the sale by the Company and the purchase
by the Underwriters, acting severally and not jointly, of 2,250,000 shares (the “Firm Shares”) of its common
stock, par value $0.0001 per share (the “Common Stock”) and (ii) the grant by the Company to the Underwriters,
acting severally and not jointly, of the option described in Section 2(b) hereof to purchase up to an additional 337,500 shares
of Common Stock (the “Option Shares”). The Firm Shares and the Option Shares are hereinafter called, collectively,
the “Shares.”
1. Registration
Statement and Prospectus. The Company has prepared and filed on September 25, 2012 with the 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 (No. 333-184095) under the Act (“Registration Statement 333-184095”), including the prospectus contained
therein (the “Basic Prospectus”), relating to the issuance of up to $250,000,000 shares of Common Stock, shares
of preferred stock, depositary shares, warrants and preferred stock purchase rights in unallocated amounts. The Company 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 Shares and the plan of distribution thereof pursuant to Rule 424. Registration Statement 333-184095, including any amendments
thereto filed prior to the Applicable Time (as defined below), was declared effective by the Commission on October 15, 2012. Except
where the context otherwise requires, Registration Statement 333-184095, 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 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 registration statement by virtue of Rule 430(b) of the
Act (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 Company in connection
with confirmation of sales of the Shares, 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 Shares
that omitted Rule 430B Information, including the related Basic Prospectus in the form first filed by the Company 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 Shares is hereafter called an “Issuer Free Writing Prospectus.” The “Applicable
Time” shall mean 9:08 a.m. (Eastern Time) on December 4, 2014 or such other time as agreed by the Company 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 (as defined below)
together with the information included on Exhibit A all considered together, are 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”).
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
Company agrees to issue and sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Company at a purchase price of $28.41 per Share, the number of Firm Shares set forth in Schedule
I opposite the name of such Underwriter, plus any additional number of Firm Shares which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 11 hereof, subject in each case, to such adjustments among the Underwriters as
the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional securities.
(b) In
addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to 337,500 Option Shares
at the same purchase price set forth in Section 2(a), less an amount per share equal to any dividends or distributions declared
by the Company and payable on the Firm Shares but not payable on the Option Shares. Said option may be exercised by the Underwriters
in whole or in part at any time on or before the 30th day after the date hereof upon written, electronic or telegraphic notice
by the Representatives to the Company setting forth the number of Option Shares as to which the Underwriters are exercising the
option and the settlement date (each, an “Option Closing Date”). Any such time shall be determined by the Underwriters,
but shall not be less than one (1) Business Day after the written notice is given and may not be earlier than the Closing Date
for the Firm Shares nor later than ten (10) Business Days after the date of such notice. If the option is exercised as to all or
any portion of the Option Shares, each of the Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Shares then being purchased, which the number of Firm Shares set forth on Schedule I opposite
the name of such Underwriter bears to the total number of Firm Shares, subject in each case, to such adjustments as the Representatives,
in their sole discretion, shall make to eliminate any sales or purchases of fractional securities.
3. Offering
by Underwriters. It is understood that the Underwriters propose to offer the Shares for sale to the public as soon after this
Agreement has become effective as in their judgment is advisable and initially to offer the Shares 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 Company, the Underwriters
have not made and will not make any offer relating to the Shares 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 Company with the Commission or retained by the Company 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 Shares and Payment Therefor. Delivery of and payment for the Shares shall be made at 10:00 a.m., New York City time,
on December 9, 2014, or at such time on such later date not more than three (3) 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 Company (such
date and time of delivery and payment for the Shares being herein called the “Closing Date”) or on the applicable
Option 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 Company may agree in writing). Delivery of the Shares shall be made against payment
by the Underwriters of the purchase price thereof, to or upon the order of the Company by wire transfer payable in immediately
available funds to an account specified by the Company. The Shares will be delivered to the Representatives through the facilities
of The Depository Trust Company (“DTC”), and the Company will make electronic transfer of the Shares in such
names and denominations as the Representatives request.
5. Agreements
of the Company. The Company agrees 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 Shares may commence, the Company 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 Company 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
Company 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 Company, its
affiliates or its 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 Shares 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 Shares; (iii) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares 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 Company’s condition (financial or other), business, prospects, properties, net worth or results of 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 Company will make every reasonable effort to obtain the withdrawal
of such order at the earliest possible time.
(d) On
request, the Company 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) The
Company will not 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. The Company 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 Time 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)
under the Act) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be
satisfied pursuant to Rule 172), the Company will file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and the
Company 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. The Company consents to the use of the 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 Shares are offered by the Underwriters
and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares 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) under the Act) 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 Company, 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,
becomes an Incorporated Document) in order to comply with the Act, the Exchange Act or any other law, the Company 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 Company and the Representatives agree that the Prospectus
should be amended or supplemented, the Company, 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) The
Company will: (i) cooperate with the Underwriters and their counsel in connection with the registration or qualification of the
Shares 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 Shares;
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 Company 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 Shares, in any jurisdiction where it is not now so subject.
(h) The
Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and
will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company 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 Company is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company 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 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
Company will make generally available to its security holders and to the Underwriters a consolidated earnings statement, which
need not be audited, covering a 12-month period commencing after the date hereof and ending not later than 15 months thereafter,
as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(j) During
the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Company will furnish to
the Underwriters: (i) as soon as available, if requested, a copy of each report of the Company mailed to stockholders or filed
with the Commission that is not publicly available on EDGAR or the Company’s website; and
(ii) from
time to time such other information concerning the Company as the Representatives may reasonably request.
(k) If
this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof, or if this Agreement shall
be terminated by the Representatives because of any inability, failure or refusal on the part of the Company to comply with the
terms or fulfill any of the conditions of this Agreement, the Company shall reimburse the Underwriters for reasonable out-of-pocket
expenses (including the reasonable fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection
herewith.
(l) The
Company will apply the net proceeds from the sale of the Shares 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 of the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act
and will advise the Representatives of the time and manner of such filing.
(n) Neither
the Company nor any affiliate of the Company has taken, nor will the Company or any affiliate of the Company 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 Company to facilitate the sale or resale of the Shares.
(o) The
Company 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 (the “Code”), so long as its Board of Directors deems it in the
best interest of the Company’s stockholders to remain so qualified.
(p) The
Company will use all reasonable best efforts to do or perform all things required to be done or performed by the Company prior
to the Closing Date to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement.
(q) The
Company will not, 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 Company or any affiliate of
the Company or the Operating Partnership, directly or indirectly, of any shares of Common Stock (excluding the Shares) or any securities
convertible into or exercisable or exchangeable for, shares of Common Stock, including the filing (or participation in the filing)
of a registration statement with the Commission in respect of any of the foregoing, 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), any shares of Common
Stock (excluding the Shares) or any securities convertible into or exercisable or exchangeable for, shares of Common Stock; or
publicly announce an intention to effect any such transaction, until sixty (60) days from the date of the Prospectus; provided,
however, that the Company may issue and sell Common Stock, or any securities convertible into or exchangeable for shares
of Common Stock, (i) pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants
or options, in each case outstanding at the Applicable Time, (ii) grant employees stock options and restricted shares pursuant
to the terms of any equity incentive plan in effect at the Applicable Time, and (iii) in connection with the acquisition of properties
or in connection with joint ventures or similar arrangements, so long as the recipients agree in writing not to sell or transfer
the Common Stock or such securities for a period of sixty (60) days from the date of the Prospectus without the prior written consent
of the Representatives. Notwithstanding the foregoing, if (1) during the last 17 days of the 60-day restricted period the Company
issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of
the 60-day restricted period, the Company announces that it will release earnings results or becomes aware that material news or
a material event will occur during the 16-day period beginning on the last day of the 60-day restricted period, the restrictions
imposed in this paragraph (q) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event.
(r) The
Company 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 best efforts to cause the Company’s
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
Company will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act within the time
period required by such rule. The Company 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) under the Securities Act.
(t) The
Company will use best efforts to complete all required filings with the New York Stock Exchange and other necessary actions in
order to cause the Shares to be listed and admitted and authorized for trading on the New York Stock Exchange, subject solely to
notice of issuance.
6. Representations
and Warranties of the Company and Operating Partnership. The Company and Operating Partnership, 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 under the Act, complied when so filed in all material
respects with the provisions of the Act.
(b) The
Company and the transactions contemplated by this Agreement meet all of the requirements for using Form S-3 under the Act pursuant
to the standards for such form as currently in effect and as in effect immediately prior to October 21, 1992. The Registration
Statement, including any amendments thereto filed prior to the Applicable Time, was declared effective by the Commission on October
15, 2012. 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 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 Act in connection with the offering of the Shares. 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 Registration Statement, in the form in which it was declared effective, and also in such form as it may be when any post-effective
amendment thereto shall become effective, and the Preliminary Prospectus and the Prospectus and any supplement or amendment thereto,
each when filed with the Commission under Rule 424(b), complied or will comply in all material respects with the provisions of
the Act and the Exchange Act. The Company has not received from the Commission any notice objecting to the use of the shelf registration
statement form. On each Effective Date and at the Applicable Time, the Registration Statement did not contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein
not misleading. On the date of any filing pursuant to Rule 424(b) and on the Closing Date and each Option Closing Date, the Prospectus
(together with any supplement thereto) will not include 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 Registration
Statement, the Disclosure Package or the Prospectus made in reliance upon and in conformity with the Underwriters Content (as hereinafter
defined).
(c) (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 and each Option 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 statements in or omissions from the Disclosure
Package made in reliance upon and in conformity the Underwriters Content.
(d) (i)
At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Applicable Time (with such date being used
as the determination date for purposes of this clause (ii)), the Company 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
Company be considered an Ineligible Issuer.
(e) 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.
(f) 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.
(g) The
Shares have been duly and validly authorized and conform in all material respects to the description thereof contained in the Registration
Statement, the Disclosure Package and the Prospectus and, when issued and delivered pursuant to this Agreement, will be fully paid
and non-assessable free and clear of any pledge, lien, encumbrance, security interest or other claim, and the issuance and sale
of the Shares by the Company is not subject to preemptive or other similar rights arising by operation of law, under the articles
of incorporation, by-laws or other organizational documents of the Company or under any agreement to which the Company or any one
of its subsidiaries is a party; no person has a right of participation or first refusal with respect to the sale of the Shares
by the Company. The form of certificate for the Shares will be in valid and sufficient form in compliance with Maryland law and
the New York Stock Exchange requirements.
(h) Immediately
following the Closing Date, 17,202,446 shares of Common Stock of the Company will be issued and outstanding (excluding any Option
Shares); all of the outstanding shares of Common Stock of the Company have been duly and validly authorized and issued and are
fully paid and nonassessable and are free of any preemptive or similar rights. Except as disclosed in the Registration Statement,
the Disclosure Package and the Prospectus (or any amendment or supplement thereto), there are no outstanding (i) securities or
obligations of the Company or any of its subsidiaries convertible into or exchangeable for any equity interests of the Company
or any such subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such subsidiary any
such equity interests or any such convertible or exchangeable securities or obligations or (iii) obligations of the Company or
any such subsidiary to issue any equity interests, any such convertible or exchangeable securities or obligation, or any such warrants,
rights or options. 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 Company under the Act (other than those that have been waived).
(i) Each
of the Company and the Operating Partnership is a corporation and limited partnership, respectively, 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 Company and its subsidiaries
taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
(j) Each
of the direct and indirect subsidiaries of the Company (other than the Operating Partnership) 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 so to register or qualify or be in good standing would not reasonably be expected to have a Material Adverse
Effect.
(k) None
of the Company, the Operating Partnership or any of its subsidiaries does any business in Cuba.
(l) Other
than as set forth on Schedule III hereto, the Company has no 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 Company’s subsidiaries (including the Operating Partnership) have been duly authorized and validly issued,
are fully paid and non-assessable and are owned legally and beneficially by the Company free and clear of any security interests,
liens, encumbrances, equities or claims, except as disclosed in the Registration Statement, the Disclosure Package, and the Prospectus.
(m) There
are no legal or governmental actions, suits, inquiries, investigations or proceedings pending or, to the knowledge of the Company,
threatened, against the Company, the Operating Partnership or any of their subsidiaries, or to which the Company, the Operating
Partnership or any properties of the Company, the Operating Partnership 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 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” and the statements
in the Prospectus and Disclosure Package under the heading “Additional Material U.S. Federal Income Tax Consequences”
fairly summarize the matters therein described.
(n) None
of the Company, the Operating Partnership 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 Company, the Operating Partnership 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 Company or its 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, indenture, lease or other instrument
to which the Company, the Operating Partnership or any of their subsidiaries is a party or by which the Company, the Operating
Partnership or any of their subsidiaries or any of their respective properties may be bound, and, to the Company’s knowledge,
no such default is expected. All agreements, contracts or other arrangements that are material to the Company and the Operating
Partnership are set forth on Schedule IV of this Agreement (the “Material Agreements”).
(o) (A)
As of the date of this Agreement, the Company owns either directly or indirectly through its subsidiaries, 196 properties (the
“Properties”). To the Company’s knowledge, none of the Company, the Operating Partnership or any of 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 Company’s 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 Company, the Operating Partnership 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 the
Company does not know of any such condemnation or zoning change which is threatened and which if consummated would reasonably be
expected to have a Material Adverse Effect; (D) the leases under which the Company or any of its 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) the Company and each of its subsidiaries
has complied with its respective obligations under the Leases in all material respects and the Company does 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 Company and its subsidiaries that are required to be disclosed in the Registration Statement, the Disclosure Package and
the Prospectus are disclosed therein.
(p) Neither
the issuance and sale of the Shares, the execution, delivery or performance of this Agreement by the Company or the Operating Partnership,
nor the consummation by the Company or the Operating Partnership of the transactions contemplated hereby (including the application
of the proceeds from the sale of the Shares 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
Shares under the Act, the listing of the Shares on the New York Stock Exchange 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 Company, the Operating Partnership
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 Company, the Operating Partnership or any of their subsidiaries
is a party or by which the Company or the Operating Partnership or any properties of the Company or the Operating Partnership 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 Company, the
Operating Partnership or any of their subsidiaries or any properties of the Company, the Operating Partnership 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 Company, the Operating Partnership or any of their subsidiaries pursuant to the terms of any agreement or instrument to
which the Company, the Operating Partnership or any of their subsidiaries is a party or by which the Company, the Operating Partnership
or any of their subsidiaries may be bound, or to which any property or assets of the Company, the Operating Partnership or any
of their subsidiaries is subject.
(q) To
the Company’s knowledge, Grant Thornton LLP, who together with Baker Tilly Virchow Krause, LLP collectively have 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 Company 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. To the Company’s knowledge, Baker Tilly Virchow Krause,
LLP was, during the periods covered by the financial statements on which Baker Tilly Virchow Krause, LLP reported, an independent
registered public accounting firm with respect to the Company 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.
(r) 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 Company 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 Company 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. The 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. The 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 Company has 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 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 under
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.
(s) The
Company has the corporate power to issue, sell and deliver the Shares as provided herein; the execution and delivery of, and the
performance by the Company of its obligations under, this Agreement have been duly and validly authorized by the Company, and this
Agreement has been duly executed and delivered by the Company and constitutes the valid and legally binding agreement of the Company,
enforceable against the Company 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; the execution and delivery
of, and the performance by the Operating Partnership of its obligations under, this Agreement have been duly and validly authorized
by the Operating Partnership, and this Agreement has been duly executed and delivered by the Operating Partnership and constitutes
the valid and legally binding agreement of the Operating Partnership, enforceable against the Operating Partnership 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.
(t) 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 Company, the Operating Partnership 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 Company
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 Company or the Operating Partnership 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 Company
on any class of its capital stock.
(u) The
Company, the Operating Partnership and each of their subsidiaries has good and marketable title to all property (real and personal)
described in the Registration Statement, the 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 Company or
any of its subsidiaries is held by it under a valid, subsisting and enforceable lease.
(v) The
“significant subsidiaries” of the Company as defined in Section 1-02(w) of Regulation S-X under the Act are set forth
in Schedule III hereto (the “Significant Subsidiaries”).
(w) The
Company has not distributed and, prior to the later to occur of (x) the Closing Date and (y) completion of the distribution of
the Shares, will not distribute, any offering material in connection with the offering and sale of the Shares other than the Registration
Statement, the Disclosure Package or the Prospectus. The Company has not, 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 Company to facilitate the sale or resale of the Shares; or (ii) since the filing of the Registration
Statement (A) sold, bid for, purchased, or paid anyone any compensation for soliciting purchases of, the Shares or (B) paid or
agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(x) The
Company, the Operating Partnership 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 Company, the Operating
Partnership 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.
(y) The
Company, the Operating Partnership and each of their subsidiaries have established and maintain 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 Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the Commission’s rules and forms and is accumulated and communicated to the Company’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 Company, the Operating Partnership and each of their subsidiaries
maintain 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 Company, the Operating Partnership
and each of their 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 Company,
the Operating Partnership 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 Company’s disclosure controls and procedures have been
evaluated for effectiveness as of the end of the period covered by the Company’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 Company 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 Company’s internal control over
financial reporting. There has been no change in the Company’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
Company’s internal control over financial reporting, except as disclosed in the Registration Statement, the Disclosure Package
and the Prospectus.
(z) There
is and has been no failure on the part of the Company and any of the Company’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.
(aa) To
the Company’s knowledge, none of the Company, the Operating Partnership or any of their subsidiaries nor any employee or
agent of the Company, the Operating Partnership or any of their subsidiaries has made any payment of funds of the Company or its
subsidiaries or received or retained any funds in violation of any law, rule or 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.
(bb) None
of the Company, the Operating Partnership or any of their subsidiaries nor, to the knowledge of the Company, any director, officer,
agent, employee or affiliate of the Company, the Operating Partnership 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 Company, the Operating Partnership,
their subsidiaries and, to the knowledge of the Company, 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.
(cc) The
operations of the Company, the Operating Partnership 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 Company, the Operating Partnership or any of their subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(dd) None
of the Company, the Operating Partnership, or any of their subsidiaries or, to the knowledge of the Company, any director, officer,
agent, employee, affiliate or representative of the Company, the Operating Partnership 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. Department of the Treasury’s Office of Foreign Assets Control
(“OFAC”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s
Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor
is the Company located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will
not directly or indirectly use the proceeds of the sale of the Shares, or lend, contribute or otherwise make available such proceeds
to any subsidiaries, joint venture partners or other Person, to fund any activities of or business with any Person, or in any country
or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation
by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of
Sanctions.
(ee) No
labor problem or dispute with the employees of the Company and/or any of its subsidiaries or, to the Company’s knowledge,
any of the Company’s or its subsidiaries’ principal suppliers, contractors or customers, exists, is threatened or imminent
that could result in a Material Adverse Effect. To the Company’s knowledge, no labor problem or dispute with the Company’s
or its subsidiaries’ tenants exists, is threatened or imminent that could result in a Material Adverse Effect.
(ff) Each
of the Company, the Operating Partnership 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 so to 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 Company has made appropriate
provisions in the Company’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 Company, the Operating
Partnership 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.
(gg) No
holder of any security of the Company or the Operating Partnership has any right to require registration of the Shares or any other
security of the Company or the Operating Partnership 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. The holders of outstanding shares of capital stock of the Company and the Operating Partnership are not entitled
to preemptive or other rights to subscribe for the Shares.
(hh) The
Company, the Operating Partnership 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 the conduct of their respective businesses.
The Company is not aware of any claim to the contrary or any challenge by any other person to the rights of the Company, the Operating
Partnership and their subsidiaries with respect to the foregoing that would reasonably be expected to have a Material Adverse Effect.
(ii) Neither
the Company nor any subsidiary is now, and after sale of the Shares to be sold by the Company 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.
(jj) (i)
To the Company’s knowledge, the Company, the Operating Partnership, 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 Company on
or before the date hereof in connection with the purchase of any of the Properties or in a written summary maintained by the Company
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.
(ii) None of the Company, the Operating
Partnership or any of their subsidiaries has at any time and, to the Company’s 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 reasonably be expect to have a Material Adverse Effect. None of the Company, the Operating Partnership 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 Company and the Operating Partnership may use Properties for their
intended purpose, which may involve the handling, storing and transporting of Hazardous Materials.
(iii) To the Company’s 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 and the Prospectus, and except for those circumstances that would not reasonably be expected have a Material Adverse Effect.
(iv) None of the Company, the Operating
Partnership 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 Company, the Operating Partnership 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.
(v) To the Company’s 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.
(vi) In the ordinary course of
its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of the
Company 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 Company 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, 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.
(kk) Commencing
with its taxable year ended December 31, 1994, the Company has been organized and operated in conformity with the requirements
for qualification and taxation as a real estate investment trust (“REIT”) under the Internal Revenue Code of
1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”), and
the Company’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, 2014 and thereafter. No transaction or other event has occurred that would reasonably
be expected to cause the Company to not be able to qualify as a REIT for its taxable year ending December 31, 2014 or future taxable
years.
(ll) The
Company, the Operating Partnership 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 Company, the Operating Partnership
or any of their subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect.
The Company, the Operating Partnership 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 Company, the Operating Partnership 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 Company, the Operating Partnership or
any of their subsidiaries has been refused any insurance coverage sought or applied for, and the Company does not have any reason
to believe that the Company, the Operating Partnership 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.
(mm) The
Company, the Operating Partnership 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.
(nn) Except
as disclosed in the Registration Statement, the Disclosure Package and the Prospectus (or pursuant to the terms of the indebtedness
described therein), no subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to
the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans
or advances to such subsidiary from the Company or from transferring any of such subsidiary’s assets or property to the Company
or any other subsidiary of the Company.
(oo) 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 by the Company or
sale by the Company of the Shares.
(pp) Each
of the Company and its 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 Company and its 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.
Neither the Company nor any of its 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.
(qq) To
the knowledge of the Company, no stock options awards granted by the Company have been retroactively granted, or the exercise or
purchase price of any stock option award determined retroactively.
(rr) The
Company’s authorized capitalization is as set forth in the Registration Statement, the Disclosure Package and the Prospectus;
the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement,
the Disclosure Package and the Prospectus; the outstanding shares of Common Stock of the Company have been duly and validly authorized
and issued in compliance with all Federal and state securities laws, and are fully paid and non-assessable.
(ss) Application
has been made to list the Shares on the New York Stock Exchange.
(tt) 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 Company believes to be reliable and accurate as of the respective dates of such documents, and the
Company has obtained the written consent to the use of such data from such sources to the extent required.
(uu) 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 New York Stock Exchange and, with respect
to members of the Company’s audit committee, the enhanced independence standards contained in Rule 10A-3(b)(1) promulgated
by the Commission under the Exchange Act.
(vv) The
Company is not required to register as a “broker” or “dealer” in accordance with the provisions of the
rules and the Exchange Act and does not, 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 Company, on the one hand, and the directors,
officers or stockholders of the Company, 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.
(ww) Except
as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, (i) neither the Company nor any of its 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 Company does not intend to use any of the proceeds from the sale of the Shares by the Company hereunder
to reduce or retire the balance of any loan or credit facility extended by any affiliate of any Underwriter.
7. Indemnification
and Contribution.
(a) The
Company and the Operating Partnership, 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)
(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 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 Company and Operating
Partnership, 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 Company and the Operating Partnership 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, which the Company and the Operating Partnership may otherwise
have.
(b) Each
Underwriter severally agrees to indemnify and hold harmless the Company and each of its directors, the Operating Partnership and
each of the Company’s officers who signs the Registration Statement, and each person who controls the Company or the Operating
Partnership 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 Company and the Operating Partnership 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 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 Company and the Operating Partnership, 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 Company, the Operating
Partnership and the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received
by the Company, on the one hand, and by the Underwriters, on the other, from the offering of the Shares; 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 Shares purchased by the Underwriters hereunder. If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company 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 Company, 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 Company 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 to state
a material fact relates to information provided by the Company or the Operating Partnership, 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 Company, the Operating Partnership 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 Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director
of the Company shall have the same rights to contribution as the Company, 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 Firm Shares 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 Shares 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 Company 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 Company and its subsidiaries or any officer or director of the Company and
its subsidiaries which makes any statement made in the Disclosure Package or the Prospectus untrue or which, in the opinion of
the Company 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 Shares.
(c) The
Representatives shall have received on the Closing Date and, if applicable, each Option Closing Date an opinion, negative assurance
letter and tax opinion of Honigman Miller Schwartz and Cohn, LLP, counsel for the Company, dated as of such date and addressed
to the Representatives, to the effect set forth on Exhibit C , Exhibit D, and Exhibit E, respectively.
(d) The
Representatives shall have received on the Closing Date and, if applicable, each Option Closing Date an opinion and negative assurance
letter of Hunton & Williams 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 and, if applicable, each Option Closing Date an opinion of Ballard Spahr
LLP, Maryland counsel for the Company, dated as of such date and addressed to the Representatives, to the effect set forth on Exhibit
F.
(f) The
Representatives shall have received letters addressed to the Underwriters and dated as of the date hereof, the Closing Date and,
if applicable, each Option Closing Date from Baker Tilly Virchow Krause, 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 or any applicable Option Closing Date shall use a “cut-off” date no more than three (3) Business Days prior to
the Closing Date or such Option Closing Date, as the case may be.
(g) The
Representatives shall have received letters addressed to the Underwriters and dated as of the date hereof, the Closing Date and,
if applicable, each Option 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 or any applicable
Option Closing Date shall use a “cut-off” date no more than three (3) Business Days prior to the Closing Date or such
Option Closing Date, as the case may be.
(h) (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 Company, shall be contemplated by the Commission at or prior to the Closing Date
or any Option Closing Date; (ii) there shall not have been any change in the capital stock of the Company nor any material increase
in the short-term or long-term debt (including any off-balance sheet activities or transactions) of the Company and its 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 Company and its 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 Company or its subsidiaries, other than those reflected in the Registration Statement or the Disclosure Package and the
Prospectus (or any amendment or supplement thereto); and (v) all the representations and warranties of the Company and the Operating
Partnership contained in this Agreement shall be true and correct at and as of the Applicable Time and on and as of the Closing
Date and each Option 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 each Option Closing Date and signed by either the chief executive officer or
chief operating officer and the chief financial officer of the Company (or such other officers as are acceptable to the Representatives),
to the effect set forth in this Section 8(h) and in Section 8(i) hereof.
(i) The
Company shall not have failed at or prior to the Closing Date and each Option 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
and each Option Closing Date.
(j) Subsequent
to the Applicable Time, there shall not have been any decrease in the rating of any of the Company’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.
(k) The
Company shall have completed all required filings with the New York Stock Exchange and other necessary actions in order to cause
the Shares to be listed and admitted and authorized for trading on the New York Stock Exchange, subject only to notice of issuance.
(l) On
or about the date of this Agreement, but in no event later than the Closing Date, the Representatives shall have received “lock-up”
agreements relating to sales and certain other dispositions of shares of Common Stock or certain other securities, each substantially
in the form of Exhibit B attached hereto, from the persons set forth on Schedule V attached hereto, and all of such
“lock-up” agreements shall be in full force and effect on the Closing Date and, if applicable, each Option Closing
Date.
(m) The
Company 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 Company or the general partner of the Operating Partnership and delivered to the Representatives,
or to counsel for the Underwriters, shall be deemed a representation and warranty by the Company or the Operating Partnership,
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 or any Option Closing Date, with
respect to any Option Shares remaining to be purchased. Notice of such cancellation shall be given to the Company in writing or
by telephone or facsimile confirmed in writing.
With respect to the Closing
Date and each Option Closing Date, the documents required to be delivered by this Section 8 shall be delivered at the offices of
Hunton & Williams LLP, Attn: Kerry E. Johnson, counsel for the Underwriters, at 421 Fayetteville Street, Suite 1400, Raleigh,
North Carolina 27601 on or prior to such date.
9. Expenses.
The Company agrees to pay the following costs and expenses and all other costs and expenses incident to the performance by the
Company of its obligations hereunder: (i) the preparation, printing or reproduction, and filing with the 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 Shares; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or other taxes in connection
with the original issuance and sale of the Shares; (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 Shares; (v) the registration or qualification of the Shares 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); (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.; (vii) the
transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective
purchasers of the Shares; and (viii) the fees and expenses of the Company’s accountants and counsel (including local and
special counsel) for the Company.
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 Company, by notice to the Company, 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 Company and its 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 Shares 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 Company by any “nationally recognized statistical rating organization”
(as defined for purposes of Rule 436(g) under the 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 Company (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 Company’s common
stock or outstanding preferred stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange or the Nasdaq Stock Market shall have been suspended or materially limited; (iv) a general
moratorium on commercial banking activities in New York or Florida shall have been declared by either federal or state authorities;
(v) the Company or any of its 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 Shares and the delivery
of the Shares by the Underwriters at the initial 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 Company by telegram, telecopy or 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 or an Option Closing
Date to purchase the Shares that it or they are obligated to purchase under this Agreement (the “Defaulted Shares”),
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 Shares 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 number of Defaulted Shares does not exceed 10% of the number of Shares 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 number of Defaulted Shares exceeds 10% of the number of Shares to be purchased on such date, this Agreement, or, with respect
to any Option Closing Date which occurs after the Closing Date, the obligation of the Underwriters to purchase and of the Company
to sell the Option Shares to be purchased and sold on such Option Closing Date, 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 or, in the case of an Option Closing Date that is after the
Closing Date, which does not result in a termination of the obligation of the Underwriters to purchase and the Company to sell
the relevant Option Shares, as the case may be, either (i) the Representatives or (ii) the Company shall have the right to postpone
the Closing Date or Option Closing Date, as the case may be, 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 Company hereby acknowledges that the only information that the Underwriters have furnished
to the Company expressly for use in the Registration Statement, the Disclosure Package or the Prospectus are the first and second
sentences of paragraph three, the second sentence of paragraph 13, paragraphs 14 through 17, the second and third sentence of paragraph
18, and paragraph 22 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
Company, the Operating Partnership 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 Company,
the Operating Partnership 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 Shares. 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 Company and Operating Partnership acknowledges and agrees that:
(a) the
Underwriters have been retained solely to act as an underwriter in connection with the sale of the Shares and that no fiduciary,
advisory or agency relationship between the Company and the Operating Partnership 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 Company and the Operating Partnership on other matters;
(b) the
price of the Shares set forth in this Agreement was established by the Company following discussions and arms-length negotiations
with the Underwriters, and the Company 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 Company and the Operating Partnership and that no Underwriter has an obligation to disclose such
interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship;
and
(d) it
waives, to the fullest extent permitted by law, any claims they may have against the Underwriters for breach of fiduciary duty
or alleged breach of fiduciary duty.
15. Notices.
All communications hereunder will be in writing and effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telefaxed to Raymond James & Associates, Inc., 880 Carillon Parkway, St. Petersburg, Florida 33176 (facsimile
727-567-8058), Attention: Brad Butcher, and Citigroup Global Markets Inc., 388 Greenwich Street, New York, NY 10013, Attention:
General Counsel (facsimile 1-646-291-1469); or, if sent to the Company, will be mailed, delivered or telefaxed to the office of
the Company at 31850 Northwestern Highway, Farmington Hills, MI 48334 (facsimile 248-737-9110), Attention: Brian Dickman.
16. Successors.
This Agreement has been made solely for the benefit of the Underwriters, the Company, the Operating Partnership, 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 Shares in his status
as such purchaser.
17. Integration.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the Operating
Partnership and the Underwriters, or any of them, with respect to the subject matter hereof.
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. The Company, the Operating Partnership and the Underwriters hereby irrevocably waive, 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 signed in one or more counterparts, each of which shall constitute an original, and all of which together
shall constitute one and the same agreement.
21. Headings.
The section headings used herein are for convenience only and shall not affect the construction hereof.
22. Research
Analyst Independence. The Company 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 Company and/or the offering that differ from the views of their respective investment banking
divisions. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company 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 Company
by Underwriters’ investment banking divisions. The Company 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 Company and any other companies that may
be the subject of the transactions contemplated by this Agreement.
23. 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.
“Free Writing
Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Rule 158,”
“Rule 163,” “Rule 164,” “Rule 172,” “Rule 405,” “Rule
415,” “Rule 424” and “Rule 433” refer to such rules under the Act.
[Signature page follows.]
If the foregoing
is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the Company, the Operating Partnership and the Underwriters.
|
Very truly yours, |
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AGREE REALTY CORPORATION |
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By: |
/s/ JOEY AGREE |
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Name: |
JOEY AGREE |
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Title: |
PRESIDENT |
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AGREE LIMITED PARTNERSHIP |
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By: AGREE REALTY CORPORATION |
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By: |
/s/ JOEY AGREE |
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Name: |
JOEY AGREE |
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Title: |
PRESIDENT |
Accepted and agreed to as of the date first above written: |
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For themselves and as Representatives of the several Underwriters named in Schedule I hereto. |
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RAYMOND JAMES & ASSOCIATES, INC. |
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By: |
/s/ JUSTIN ROMAN |
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Name: |
JUSTIN ROMAN |
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Title: |
SENIOR VICE PRESIDENT |
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CITIGROUP GLOBAL MARKETS INC. |
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By: |
/s/ MICHAEL HOLLMAN |
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Name: |
MICHAEL HOLLMAN |
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Title: |
VICE PRESIDENT |
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EXECUTION VERSION
SCHEDULE I
| |
Number of Firm | |
Name of Underwriter | |
Shares | |
Raymond James & Associates, Inc. | |
| 787,500 | |
Citigroup Global Markets Inc. . | |
| 787,500 | |
Jefferies LLC | |
| 225,000 | |
RBC Capital Markets, LLC | |
| 225,000 | |
Ladenburg Thalmann & Co. Inc. | |
| 112,500 | |
SunTrust Robinson Humphrey, Inc. . | |
| 112,500 | |
Total | |
| 2,250,000 | |
SCHEDULE II
FREE WRITING PROSPECTUSES INCLUDED IN
THE DISCLOSURE PACKAGE
None
SCHEDULE III
LIST OF SUBSIDIARIES AND JOINT VENTURES
Agree Limited Partnership
Agree Realty Corporation, through its operating
partnership, Agree Limited Partnership, is the sole member of the following limited liability companies:
|
Jurisdiction of |
|
Subsidary |
Organization |
Foreign Qualification |
Agree Center Point Birmingham AL LLC |
Alabama |
|
Agree Chandler, LLC |
Arizona |
|
Agree Rancho Cordova I |
California |
|
Agree Rancho Cordova II |
California |
|
Agree Roseville CA, LLC |
California |
|
Agree Manchester CT, LLC |
Connecticut |
|
Agree Mansfield, LLC |
Connecticut |
|
Agree 103-Middleburg Jacksonville, LLC |
Delaware |
Florida |
Agree Anderson SC LLC |
Delaware |
South Carolina |
Agree Ann Arbor Jackson, LLC |
Delaware |
Michigan |
Agree Atlantic Beach, LLC |
Delaware |
Florida |
Agree Belton MO LLC |
Delaware |
Missouri |
Agree Berkeley Solano, LLC |
Delaware |
|
Agree Brighton, LLC |
Delaware |
Michigan |
Agree Burlington LLC |
Delaware |
Washington |
Agree Cannon Station LLC |
Delaware |
Georgia |
Agree Charlotte County, LLC |
Delaware |
Florida |
Agree Columbia SC LLC |
Delaware |
South Carolina |
Agree Construction Management LLC |
Delaware |
|
Agree Development, LLC |
Delaware |
|
Agree Facility No. 1, LLC |
Delaware |
|
Agree Holdings I, LLC |
Delaware |
|
Agree Indianapolis Glendale, LLC |
Delaware |
|
Agree Leawood, LLC |
Delaware |
Kansas |
Agree Limited Partnership |
Delaware |
|
Agree Lowell, LLC |
Delaware |
Michigan |
Agree Port St. John LLC |
Delaware |
Florida |
Agree Portland OR LLC |
Delaware |
Oregon |
Agree Realty Services, LLC |
Delaware |
|
Agree Silver Springs Shores, LLC |
Delaware |
Florida |
Agree Southfield & Webster, LLC |
Delaware |
Michigan |
Agree St. Augustine Shores, LLC |
Delaware |
Florida |
Agree Tri-State Lease, LLC |
Delaware |
Pennsylvania, New Jersey |
Indianapolis Store No. 16, LLC |
Delaware |
Indiana |
Lawrence Store No. 203, L.L.C. |
Delaware |
Kansas |
Agree 17-92, LLC |
Florida |
|
Agree Boynton, LLC |
Florida |
|
Agree East Palatka, LLC |
Florida |
|
Agree Fort Walton Beach, LLC |
Florida |
|
Agree Pensacola LLC |
Florida |
|
Agree Pensacola Nine Mile LLC |
Florida |
|
Agree Poinciana LLC |
Florida |
|
Agree St Petersburg LLC |
Florida |
|
Agree Tallahassee, LLC |
Florida |
|
Agree Venice, LLC |
Florida |
|
Agree Cochran GA, LLC |
Georgia |
|
Agree Lyons GA LLC |
Georgia |
|
Agree Marietta, LLC |
Georgia |
|
Agree Morrow GA, LLC |
Georgia |
|
Agree Statham GA, LLC |
Georgia |
|
Agree Antioch, LLC |
Illinois |
|
Agree Berwyn IL LLC |
Illinois |
|
Agree Chicago Kedzie, LLC |
Illinois |
|
Agree Lake in the Hills, LLC |
Illinois |
|
Agree Lake Zurich IL, LLC |
Illinois |
|
Agree New Lenox 2 LLC |
Illinois |
|
Agree New Lenox, LLC |
Illinois |
|
Agree Spring Grove, LLC |
Illinois |
|
Agree Springfield IL LLC |
Illinois |
|
Agree Atchison, LLC |
Kansas |
|
Agree Wichita, LLC |
Kansas |
|
Agree Baton Rouge LA LLC |
Louisiana |
|
Agree Mall of Louisiana, LLC |
Louisiana |
|
Agree Wawa Baltimore, LLC |
Maryland |
|
2355 Jackson Avenue, LLC |
Michigan |
|
Agree 117 Mission, LLC |
Michigan |
|
Agree Ann Arbor State Street, LLC |
Michigan |
|
Agree Beecher LLC |
Michigan |
|
Agree Bristol & Fenton Project, LLC |
Michigan |
|
Agree Corunna LLC |
Michigan |
|
Agree Elkhart, LLC |
Michigan |
|
Agree M-59 LLC |
Michigan |
|
Agree Madison AL LLC |
Michigan |
Alabama |
Agree Pinellas Park, LLC |
Florida |
|
Agree Plainfield, LLC |
Michigan |
|
Agree Realty South-East, LLC |
Michigan |
|
Agree Shelby, LLC |
Michigan |
|
Agree Southfield LLC |
Michigan |
|
Agree Walker, LLC |
Michigan |
Mt Pleasant Shopping Center LLC |
Michigan |
Agree Minneapolis Clinton Ave, LLC |
Minnesota |
Agree Forest MS LLC |
Mississippi |
Agree Joplin MO LLC |
Missouri |
Agree St. Joseph MO, LLC |
Missouri |
Agree North Las Vegas, LLC |
Nevada |
Agree Sun Valley NV LLC |
Nevada |
Agree Rochester NY LLC |
New York |
Agree Charlotte Poplar, LLC |
North Carolina |
Agree Concord, LLC |
North Carolina |
Agree Fuquay Varina LLC |
North Carolina |
Agree Jacksonville NC, LLC |
North Carolina |
Agree Wilmington, LLC |
North Carolina |
Agree Grand Forks LLC |
North Dakota |
Agree Brooklyn OH LLC |
Ohio |
Agree Johnstown, LLC |
Ohio |
Agree Allentown PA LLC |
Pennsylvania |
Agree Ligonier PA LLC |
Pennsylvania |
Agree Montgomeryville PA LLC |
Pennsylvania |
Agree Daniel Morgan Ave Spartanburg LLC |
South Carolina |
Agree Fort Mill SC, LLC |
South Carolina |
Agree Spartanburg SC LLC |
South Carolina |
Agree Rapid City SD, LLC |
South Dakota |
Agree Alcoa TN LLC |
Tennessee |
Agree Magnolia Knoxville TN LLC |
Tennessee |
Agree Dallas Forest Drive, LLC |
Texas |
Agree Harlingen LLC |
Texas |
Agree Madisonville TX LLC |
Texas |
Agree McKinney TX LLC |
Texas |
Agree Wichita Falls TX LLC |
Texas |
Agree Forest VA LLC |
Virginia |
Agree Lebanon VA LLC |
Virginia |
Significant Subsidiaries
Agree Limited Partnership
Joint Ventures
None
SCHEDULE IV
MATERIAL AGREEMENTS
| 1. | Rights Agreement, dated as of December 7, 1998, by and between Agree Realty Corporation, a Maryland
corporation, and Computershare Trust Company, N.A., f/k/a EquiServe Trust Company, N.A., a national banking association, as successor
rights agent to BankBoston, N.A., a national banking association |
| 2. | Second Amendment to Rights Agreement, dated as of December 8, 2008, by and between Agree Realty
Corporation, a Maryland corporation, and Computershare Trust Company, N.A., f/k/a EquiServe Trust Company, N.A., a national banking
association, as successor rights agent to BankBoston, N.A., a national banking association |
| 3. | Amended and Restated Registration Rights Agreement, dated July 8, 1994 by and among the Agree Realty
Corporation, Richard Agree, Edward Rosenberg and Joel Weiner |
| 4. | First Amended and Restated Agreement of Limited Partnership of Agree Limited Partnership, dated
as of April 22, 1994, as amended, by and among the Agree Realty Corporation, Richard Agree, Edward Rosenberg and Joel Weiner |
| 5. | Second Amendment to First Amended and Restated Agreement of Limited Partnership of Agree Limited
Partnership, dated as of March 20, 2013 |
| 6. | Agree Realty Corporation Profit Sharing Plan |
| 7. | Amended Employment Agreement, dated October 29, 2014, by and between Agree Realty Corporation and
Richard Agree |
| 8. | Amended Employment Agreement, dated October 29, 2014, by and between Agree Realty Corporation and
Joey Agree |
| 9. | Letter Agreement of Employment dated July 8, 2010 between Agree Limited Partnership and Alan Maximiuk |
| 10. | Letter Agreement of Employment dated April 5, 2010 between Agree Limited Partnership and Laith
Hermiz |
| 11. | Letter Agreement of Employment dated January 2, 2014 between Agree Realty Corporation and Brian
R. Dickman |
| 12. | Agree Realty Corporation’s 2005 Equity Incentive Plan |
| 13. | Agree Realty Corporation 2014 Omnibus Incentive Plan |
| 14. | Form of Restricted Stock Agreement |
| 15. | Form of Restricted Stock Agreement under 2014 Omnibus Incentive Plan |
| 16. | Summary of Director Compensation |
| 17. | Revolving Credit Facility and Term Loan Agreement, dated July 21, 2014, among Agree Limited Partnership,
PNC Bank, National Association and the other lenders party thereto |
SCHEDULE V
List of Individuals Signing Lock-Up Agreements
Pursuant to Section 8(l)
Richard Agree
Joey Agree
Brian Dickman
Laith Hermiz
John Rakolta, Jr.
Farris G. Kalil
Eugene Silverman
Michael Rotchford
Leon M. Schurgin
William S. Rubenfaer
EXHIBIT A
Aggregate number of shares offered: 2,250,000
Offering price to public: $29.67
EXHIBIT B
December __, 2014
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
As Representatives of the several Underwriters
| Re: | Proposed Public Offering by Agree Realty Corporation |
Dear Ladies and Gentlemen:
The undersigned, a
stockholder and an officer or director of Agree Realty Corporation, a Maryland corporation (the “Company”),
understands that Raymond James & Associates, Inc. and Citigroup Global Markets Inc. (the “Representatives”)
propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company providing for
the public offering of shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share
(the “Common Stock”). In recognition of the benefit that such an offering will confer upon the undersigned as
a stockholder and an officer or director of the Company, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the undersigned agrees with the underwriters to be named in the Underwriting Agreement that,
during a period of sixty (60) days from the date of the Underwriting Agreement, the undersigned will not, without the prior
written consent of the Representatives, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise dispose
of or transfer any shares of the Company’s Common Stock or any securities convertible into or exchangeable or exercisable
for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter
acquires the power of disposition, or file, or cause to be filed, any registration statement under the Securities Act of 1933,
as amended, with respect to any of the foregoing (collectively, the “Lock-Up Shares”) or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Lock-Up Shares, whether any such swap or transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise.
Notwithstanding the
foregoing, if:
(a) during
the last 17 days of the 60-day lock-up period, the Company issues an earnings release or material news or a material event relating
to the Company occurs; or
(b) prior
to the expiration of the 60-day lock-up period, the Company announces that it will release earnings results or becomes aware that
material news or a material event will occur during the 16-day period beginning on the last day of the 60-day lock-up period, the
restrictions imposed by this lock-up agreement shall continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or material event, as applicable, unless the Representatives
waive, in writing, such extension.
The undersigned also
agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the
transfer of the Lock-Up Shares, except in compliance with the foregoing restrictions.
THIS LOCK-UP AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[Signature Page Follows]
|
Very truly yours, |
|
|
|
|
Signature: |
|
|
Name: |
|
|
|
|
|
Address: |
31850 Northwestern Highway
Farmington Hills, MI 48334 |
EXHIBIT C
December [__], 2014
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
As representatives of the several Underwriters
(as defined herein)
| Re: | Opinion Letter Pursuant to the Underwriting Agreement |
Ladies and Gentlemen:
We have acted as counsel
to Agree Realty Corporation, a Maryland corporation (the “Company”), and Agree Limited Partnership, a Delaware
limited partnership (the “Operating Partnership”) in connection with the Underwriting Agreement, dated December
4, 2014, by and among Raymond James & Associates, Inc. and Citigroup Global Markets Inc., as Representatives of the several
Underwriters listed in Schedule I attached thereto, the Company and the Operating Partnership (the “Underwriting Agreement”)
and the documents set forth on Exhibit A to this opinion letter (collectively, with the Underwriting Agreement, the “Offering
Documents”), and the public offering (the “Offering”) of 2,250,000 shares (the “Underwritten
Shares”) of the Company’s common stock, par value $0.01 per share (the “Common Shares”), and
an additional 337,500 Common Shares issuable pursuant to the 30-day option granted to the Underwriter (the “Option Shares”
and, together with the Underwritten Shares, the “Shares”). This opinion letter is provided to you at the request
of the Company and the Operating Partnership pursuant to Section 8(c) of the Underwriting Agreement. Except as otherwise indicated,
capitalized terms used in this opinion letter are defined as set forth in the Underwriting Agreement.
In so acting, we have
reviewed the Articles of Incorporation of the Company, the Bylaws of the Company, the Certificate of Limited Partnership of the
Operating Partnership (the “Certificate of Limited Partnership”), the First Amended and Restated Agreement of
Limited Partnership of the Operating Partnership (the “Agreement of Limited Partnership”), and the Offering
Documents, and have considered such matters of law and of fact, and relied 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 other than as set forth
in paragraph C below, upon (a) representations and warranties made by the Company and the Operating Partnership in the Offering
Documents, (b) certificates of officers of the Company and the Operating Partnership and (c) certificates of government officials.
We note that various issues concerning (a) tax matters are addressed in a separate opinion letter provided to you by us, and we
express no opinion with respect to those matters in this opinion letter, and (b) Maryland law are addressed in the opinion letter
of Ballard Spahr LLP, separately provided to you, and we express no opinion with respect to those matters. With your permission,
we have assumed, without independent investigation, that the Company (i) is a corporation validly existing and in good standing
under the laws of the State of Maryland, (ii) has the requisite corporate power and authority, under Maryland law, to own and lease
the properties owned and leased by it and to carry on its business as is now being conducted by it, (iii) has the requisite corporate
power and authority, under Maryland law, to execute, deliver and perform its obligations under the Underwriting Agreement and (iv)
has duly authorized, by all necessary corporate action under Maryland law, the execution and delivery of the Underwriting Agreement
and the performance of its obligations under the Underwriting Agreement. With your permission, we have also assumed, without independent
investigation, that neither the execution and delivery by the Company of the Underwriting Agreement, nor the performance by the
Company of the Underwriting Agreement violates (x) any provision of the Company’s organizational documents and (y) any of
the provisions of Maryland law.
The law covered by
the opinions expressed in this opinion letter is limited to the Law (as applicable and as defined in paragraph A below) of (i)
the State of Michigan, the Delaware Revised Uniform Limited Partnership Act (the “Delaware RULPA”), and the
federal Law of the United States and (ii) exclusively for paragraphs 3, 7(a)(ii), 7(d) and 8 below, the State of New York, in each
case in effect on the date of this opinion letter, and we do not express any opinion concerning any other laws. We are not admitted
to practice in the State of Delaware and, with respect to the opinions set forth below, insofar as they relate to any Delaware
law, we (a) have limited our review, with your permission, to standard compilations available to us of the Delaware RULPA, which
we have assumed to be accurate and complete, and (b) have not reviewed case law.
Based upon and subject
to the foregoing, we are of the opinion that:
1. The
Operating Partnership is (a) validly existing and in good standing under the laws of the State of Delaware and (b) duly qualified
and is in good standing under the laws of California, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Maryland,
Michigan, Nebraska, New Jersey, New York, Oklahoma, Pennsylvania and Wisconsin to transact business in such states. The company
is duly qualified and in good standing under the laws of California, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Michigan,
Nebraska, New Jersey, New York, Oklahoma, Pennsylvania and Wisconsin to transact business in such states.
2. The
Operating Partnership has the requisite limited partnership power and authority (i) to own or lease its properties and conduct
its business as described in the Registration Statement, Disclosure Package and Prospectus and (ii) to execute, deliver and perform
its obligations under the Underwriting Agreement. The execution, delivery and performance of the Underwriting Agreement by the
Operating Partnership have been duly authorized by all necessary limited partnership action on behalf of the Operating Partnership.
Based on our review of the Agreement of Limited Partnership and Certificate of Limited Partnership, the Company is the sole general
partner of the Operating Partnership.
3. The
issued and outstanding units of limited partnership interest of the Operating Partnership (excluding the [____] units to
be issued to the Company upon the Company’s issuance of the Shares) are owned of record by the Company free and clear of
any security interest, lien, encumbrance, pledge or claim in respect of which a financing statement under the Uniform Commercial
Code of the State of Maryland naming the Company as debtor is on file with the Secretary of State of the State of Maryland, except
those created by or arising under the Agreement of Limited Partnership.
4. The
Underwriting Agreement has been duly authorized, executed and delivered by the Operating Partnership.
5. The
units of limited partnership interest of the Operating Partnership corresponding to the Shares and to be issued to the Company
have been duly authorized and, when issued and delivered by the Operating Partnership in accordance with the Agreement of Limited
Partnership against payment of the consideration set forth therein, will be validly issued and fully paid.
6. To
our Actual Knowledge, no holder of securities of the Company is entitled to have such securities registered under the Registration
Statement, except for rights that have been waived in connection with the transactions contemplated by the Underwriting Agreement.
7. The
form of certificate used to evidence the Common Stock complies in all material respects with the applicable requirements of the
New York Stock Exchange, and the Shares have been approved for listing, subject to official notice of issuance, on the New York
Stock Exchange.
8. The
execution and delivery of the Underwriting Agreement by the Company and the Operating Partnership and the Company’s and the
Operating Partnership’s performance of the Underwriting Agreement (including the offer, issuance and sale of the Shares by
the Company) as of the date of this opinion letter (a) do not violate (i) the Certificate of Limited Partnership or the Agreement
of Limited Partnership, (ii) any Law which is applicable to the Company or the Operating Partnership, (b) do not constitute a default
under, or result in a breach of, any existing obligation of the Company or the Operating Partnership under any agreement or instrument
filed as an exhibit to the Registration Statement or the Company’s Annual Report on Form 10-K for the year ended December
31, 2013 or any of the Company’s Quarterly Reports on Form 10-Q filed since January 1, 2014, any of the Company’s Current
Reports on Form 8-K filed since January 1, 2014 or filed as an appendix to the Company’s Definitive Proxy Statement on Schedule
14A filed March 26, 2014 (the “Material Contracts”); provided, however, that we express no opinion (i) as to
whether the execution, delivery or performance of any such agreement will constitute a default under or result in a breach of any
covenant, restriction or provision with respect to financial ratios or tests or any aspect of the financial condition or results
of operations of any person or entity, or (ii) with respect to any matter which requires mathematical calculation or any financial
or accounting determination, (c) do not result in any lien, security interest or other encumbrance being created or imposed upon
any property or asset of the Company or the Operating Partnership pursuant to any Material Contract or (d) to our Actual Knowledge,
do not result in a breach of or violate any existing obligation of the Company or the Operating Partnership under any injunction,
decree, order or judgment of any Michigan, New York or federal court or governmental authority that names and is binding on the
Company or the Operating Partnership, except in the case of clauses (a)(ii) and (c) for any such violation or encumbrance or breach
that would not, individually or in the aggregate, have a material adverse effect on the business, properties, financial position,
results of operations or business prospects of the Company and its subsidiaries taken as a whole (a “Material Adverse
Effect”).
9. No
consent, approval, authorization or order of, or registration or filing with, any regulatory body, administrative agency or other
governmental authority, agency or official is required to be obtained or made by the Company or the Operating Partnership under
the Laws of the States of Michigan or New York, federal Law or the Delaware RULPA for the valid issuance and sale of the Shares
by the Company to the Underwriters pursuant to the Underwriting Agreement, except for (i) such as have been obtained, rendered
or complied with, as the case may be, or (ii) such as may be required under applicable state securities or blue sky laws, or the
rules and regulations of the Financial Industry Regulatory Authority, in connection with the purchase and distribution of the Shares
by the Underwriters.
10. The
statements set forth in the Preliminary Prospectus, dated December 3, 2014 and the Prospectus, in each case, under the caption
“Underwriting”, to the extent that they constitute a summary of the terms of the Underwriting Agreement, fairly summarizes
the Underwriting Agreement in all material respects. To our Actual Knowledge, (i) there are no legal, governmental or regulatory
actions, suits or proceedings current or pending that are required under the Securities Act to be described in the Registration
Statement, Disclosure Package or the Prospectus and that are not so described in the Registration Statement, Disclosure Package
and the Prospectus, except for actions, suits or proceedings fairly summarized in all material respects therein, (ii) there are
no contracts or other documents required under the Securities Act to be filed (by incorporation by reference or otherwise) as exhibits
to the Registration Statement that were not so filed, and (iii) there are no statutes, regulations, contracts or other documents
required under the Securities Act to be described in the Registration Statement, Disclosure Package and the Prospectus that were
not so described, other than statutes, regulations, contracts or other documents fairly summarized in all material respects therein.
11. The
Company is not, and after giving effect to the application of the proceeds received by the Company from the offering and sale of
the Shares as described in the Prospectus, the Company will not be, an “investment company” or an entity “controlled”
by an “investment company” as such terms are defined the Investment Company Act of 1940, as amended.
The foregoing opinions
are subject to the following (in addition to the qualifications and other limitations set forth above):
A. For purposes of
this opinion letter, “Law” means the statutes, and, other than with respect to Delaware laws, 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, and
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.
B. We
have only considered the applicability of Laws that a lawyer in the State of Michigan exercising customary professional diligence
would reasonably recognize as being directly applicable to the Company and the Operating Partnership, the transaction described
in the Offering Documents, or both. We disclaim any opinion with respect to specialized laws that are not customarily covered in
opinion letters of this kind, such as tax, insolvency, bankruptcy, fraudulent conveyance, antitrust, pension, employee benefit,
environmental, intellectual property, bank regulatory, usury insurance, labor, and health and safety laws, and the effects of such
specified laws.
C. Our
“Actual Knowledge” or a phrase having similar wording means the conscious awareness of facts or other information
by Lowell D. Salesin, Donald J. Kunz, Clara L. Seymour and Jessica Herron, the attorneys of this firm involved in the representations
of the Company and the Operating Partnership in connection with the offering of Shares pursuant to the Underwriting Agreement (the
“Designated Attorneys”), after inquiries of other lawyers of this firm providing substantive attention to other
legal matters on behalf of the Company or the Operating Partnership. Except as described in this opinion letter, the Designated
Attorneys have not undertaken any independent investigation or made inquiry of any other attorneys or employees of Honigman Miller
Schwartz and Cohn LLP to determine the existence or absence of such facts.
This opinion letter
may be relied upon by you only in connection with the transactions described in the Offering Documents. This opinion letter may
not be used or relied upon by any other person or for any other purpose whatsoever without, in each instance, our prior written
consent.
This opinion letter
speaks only as of its date. We do not undertake any obligation to advise you or any other party of changes of law or fact that
occur after the date of this opinion letter -- even though the change may affect the legal analysis, a legal conclusion or an information
confirmation in this opinion letter.
|
Very truly yours, |
|
|
|
HONIGMAN MILLER SCHWARTZ AND COHN LLP |
DJK/CLS/NHB/REW/MSB
Certain Offering Documents
| 1 | The Company’s Registration Statement on Form S-3 filed on September 25, 2012 (the “Registration
Statement”); |
| 2 | The Company’s base prospectus included in the Registration Statement, dated September 25,
2012 (the “Base Prospectus”); and |
| 3 | The Company’s prospectus supplement, dated December 4, 2014, together with the Base Prospectus
(the “Prospectus”). |
EXHIBIT D
December ___, 2014
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
As representatives of the several Underwriters
(as defined herein)
Re: Agree Realty
Corporation
Ladies and Gentlemen:
We have acted as counsel
to Agree Realty Corporation, a Maryland corporation (the “Company”) and Agree Limited Partnership, a Delaware
limited partnership (the “Operating Partnership”), in connection with the Underwriting Agreement, dated December
4, 2014, by and among Raymond James & Associates, Inc. and Citigroup Global Markets Inc., as Representatives of the several
Underwriters listed in Schedule I attached thereto, the Company and the Operating Partnership (the “Underwriting Agreement”).
This letter is provided to you at the request of the Company in connection with the delivery of our opinion letter to you as of
the date hereof pursuant to Section 8(c) of the Underwriting Agreement. Except as otherwise indicated, capitalized terms used in
this letter are defined as set forth in the Underwriting Agreement.
As counsel to the Company
and the Operating Partnership, we have reviewed the Underwriting Agreement, the Registration Statement, the Prospectus and the
Disclosure Package (collectively, the “Offering Documents”) and participated in discussions with your representatives,
your counsel, representatives of the Company and the Operating Partnership, co-counsel to the Company and the Company’s independent
registered public accounting firms in connection with our participation in the preparation of the Offering Documents.
As to matters involving
facts, including in the Underwriting Agreement, the Prospectus and the Disclosure Package, we have relied upon (a) representations
in the Underwriting Agreement, (b) certificates of officers of the Company and the Operating Partnership, (c) the organizational
documents of the Company and the Operating Partnership and (d) certificates or oral representations of government officials.
The purpose of our
professional engagement was not to establish or to confirm factual matters or financial, accounting or statistical information
set forth in the Offering Documents or other tax matters (other than as set forth in our federal income tax opinion to you of even
date herewith), and, because of the inherent limitations in the independent verification of factual matters and the character of
the determinations involved in the preparation of the Offering Documents, we have not independently verified the accuracy, completeness
or fairness of the statements contained or incorporated therein or omitted therefrom, and the limitations inherent in the examination
made by us and the knowledge available to us are such that we are unable to assume, and we do not assume, any responsibility for
such accuracy, completeness or fairness (other than as specified in opinion paragraph 10 of our corporate opinion to you dated
of even date herewith and opinion paragraph [b] of our federal income tax opinion to you dated of even date herewith).
However, on the basis
of our review and participation in conferences in connection with the preparation of the Disclosure Package and the Prospectus,
and any amendment and supplement thereto:
1. No
facts have come to our attention which have caused us to believe that the Registration Statement, including the Rule 430B Information,
at the last deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2), contained any untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein
not misleading.
2. No
facts have come to our attention which have caused us to believe that the Disclosure Package, as of the Applicable Time, contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading.
3. No
facts have come to our attention which have caused us to believe that the Prospectus (including any amendment or supplement thereto)
as of its date and on the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state
a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
4. The
Registration Statement, as of the Effective Date, and the Prospectus, as of its date, and each document incorporated by reference
therein which has been filed with the Securities and Exchange Commission (the “Commission”) under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) on or prior to the date hereof , as of their respective
dates of filing (other than the financial statements and related schedules and other financial data contained or incorporated by
reference therein, or any statistical information derived from such financial statements, financial statement schedules or other
financial data, as to which we express no opinion) appear on their face to comply as to form in all material respects with the
requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations
thereunder, and the Exchange Act, and the rules and regulations thereunder.
5. We
do not know of any contracts or other documents required to be described in the Registration Statement or to be filed as exhibits
to the Registration Statement other than those described or filed as exhibits thereto.
6. The Registration
Statement was declared effective with the Commission on October 15, 2012, a Preliminary Prospectus was filed with the Commission
pursuant to Rule 424(b)(5) under the Securities Act on December 3, 2014 and the Prospectus Supplement was filed with the Commission
pursuant to Rule 424(b)(2) under the Securities Act on December [___], 2014, within the time period specified in such rule,
without reference to Rule 424(b)(8). On the date hereof, we have reviewed the Company’s EDGAR filings on the Commission’s
website at www.sec.gov and the Commission’s “stop orders” website (http://www.sec.gov/litigation/stoporders.shtml),
and to our Actual Knowledge (as defined in our corporate opinion to you dated of even date herewith), (a) no stop order suspending
the effectiveness of the Registration Statement is in effect and (b) no proceeding for that purpose against the Company or in connection
with the Offering is pending or threatened by the Commission.
Notwithstanding the
foregoing, we express no opinion or belief as to the financial statements, financial statement schedules and other financial data
contained or incorporated by reference in the Registration Statement, the Disclosure Package, the Prospectus or any document incorporated
by reference therein, or any statistical information derived from such financial statements, financial statement schedules or other
financial data.
This letter is being
furnished by us only to you, is solely for your benefit as Representatives, for yourself and for the other Underwriters, in such
capacity and may not be used or relied upon by any other person or for any other purpose whatsoever (including any persons purchasing
the Shares from you).
This letter speaks
only as of its date. We do not undertake any obligation to advise you or any other party of changes of law or fact that occur after
the date of this letter — even though the change may affect an information confirmation in this letter.
|
Very truly yours, |
|
|
|
HONIGMAN MILLER SCHWARTZ AND COHN LLP |
DJK/CLS/NHB/MSB
EXHIBIT E
December
[·], 2014
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Re: Certain
Federal Income Tax Matters
Ladies and Gentlemen:
We
have acted as counsel to Agree Realty Corporation, a Maryland corporation (the “Company”), in connection with
the preparation of the offer and sale of 2,250,000 shares of Common Stock pursuant to a prospectus supplement filed on December
3, 2014 (the “Prospectus Supplement”), as part of a registration statement on Form S-3 (File No. 333-184095)
declared effective by the Securities and Exchange Commission on October 15, 2012 (the “Registration Statement”),
with respect to the offer and sale of up to an aggregate of $250,000,000 of shares of common stock, par value $0.0001, of the
Company (the “Common Stock”), shares of preferred stock, par value $0.0001 per share, of the Company (the “Preferred
Stock”), depositary shares representing Preferred Stock (“Depositary Shares”), and warrants entitling
the holders to purchase Common Stock, Preferred Stock, Depositary Shares or any combination of these securities to be offered
from time-to-time. This opinion regarding certain U.S. federal income tax matters is furnished at the request of the Company pursuant
to section 8(c) of the Underwriting Agreement, dated December [·],
2014 (the “Underwriting Agreement”) by and between the Raymond James & Associates, Inc. and Citigroup Global
Markets Inc. as representatives for certain underwriters as set forth on Schedule I of the Underwriting Agreement (the “Representatives”)
and the Company.
We have also acted
as counsel to the Company in connection with the preparation of the section captioned “Additional Material U.S. Federal Income
Tax Consequences” in the Prospectus Supplement.
In rendering the opinions
stated below, we have examined and, with your consent, relied upon the following documents:
(i) the
Company’s Articles of Incorporation, as amended;
(ii) the
Registration Statement, the prospectus (the “Prospectus”) filed as part of the Registration Statement, and
the Prospectus Supplement;
| (iii) | the Limited Partnership Agreement of the Operating Partnership as amended to the date hereof (the
“Partnership Agreement”); |
| (iv) | a letter of even date to us from Brian Dickman, Chief Financial Officer of the Company, containing
certain written representations of the Company (“Certificate of Representations”); |
| (v) | the tax opinion issued by Hunton & Williams LLP, dated November 27, 2013, regarding the Company’s
qualification as a real estate investment trust (a “REIT”) for federal income tax purposes (the “Prior
REIT Opinion”); and |
| (vi) | such other records, certificates and documents as we have deemed necessary or appropriate for purposes
of rendering the opinions set forth herein. |
In our examination of the foregoing
documents, we have assumed, with your consent, that:
| (i) | each of the documents referred to above has been duly authorized, executed, and delivered; is authentic,
if an original, or is accurate, if a copy; has not been amended; and the signatures on each original document are genuine; |
| (ii) | where any such document required execution by a person, the person who executed the document had
proper authority and capacity; |
(iii)
all representations and statements set forth in such documents are and will be true and correct;
| (iv) | where any such document imposes obligations on a person or entity, such obligations have been or
will be performed or satisfied in accordance with their terms; |
| (v) | during its taxable year ending December 31, 2014, and future taxable years, the Company will operate
in a manner that will make the representations contained in the Certificate of Representations true for such years, without regard
to any qualifications as to knowledge or belief; |
| (vi) | the Company will not make any amendments to its organizational documents after the date of this
opinion that would adversely affect the Company’s qualification as a REIT for any taxable year; and |
| (vii) | no action will be taken by the Company after the date hereof that would have the effect of altering
the facts upon which the opinions set forth below are based. |
We have not independently
verified all of the representations, facts or assumptions set forth in such documents or any other documents. We consequently have
assumed that the information presented in such documents or otherwise furnished to us accurately and completely describes all facts
stated therein. In connection with the opinions rendered below, we have assumed the correctness of the Prior REIT Opinion with
respect to all periods prior to January 1, 2013, subject only to our limited independent investigation with respect to the periods
before January 1, 2013. We also have relied upon the correctness, without regard to any qualification as to knowledge or belief,
of the factual representations and covenants contained in the Certificate of Representations and the factual matters discussed
in the Prospectus and the Prospectus Supplement that relate to the Company’s status as a REIT. Where the factual representations
in the Certificate of Representations involve terms defined in the Internal Revenue Code of 1986, as amended (the “Code”),
the Treasury regulations thereunder (the “Regulations”), published rulings of the Internal Revenue Service (the
“Service”), or other relevant authority, we have reviewed with the individual making such representations the
relevant provisions of the Code, the applicable Regulations, the published rulings of the Service, and other relevant authority.
We are not aware of any facts that are inconsistent with the representations contained in the Certificate of Representations. It
should be noted, however, that the Code, Regulations, judicial decisions, and administrative interpretations are subject to change
at any time and, in some circumstances, with retroactive effect. We can give no assurance, therefore, that legislative enactments,
administrative changes or court decisions may not be forthcoming that would modify or supersede the opinions stated herein. In
addition, there can be no assurance that positions contrary to our opinions will not be taken by the Service, or that a court considering
the issues will not hold contrary to such opinions. The Service has not issued Regulations or administrative interpretations with
respect to various provisions of the Code relating to REIT qualification. No assurance can be given that the law will not change
in a way that will prevent the Company from qualifying as a REIT.
Moreover, the opinions
set forth below represent our conclusions based upon the documents, facts, assumptions and representations referred to above. Any
material amendments to such documents or changes in any significant facts after the date hereof, or inaccuracy of such assumptions
or representations, could affect the opinions stated herein.
We express no opinion
as to the laws of any jurisdiction other than the federal income tax laws of the United States of America to the extent specifically
referred to herein.
Based on the documents
and assumptions set forth above, the representations and covenants set forth in the Certificate of Representations, and the factual
matters discussed in the Prospectus under the caption “Material Federal Income Tax Considerations” and in the Prospectus
Supplement under the caption “Additional Material Federal Income Tax Considerations” (which are incorporated herein
by reference), we are of the opinion that:
1. the
Company qualified to be taxed as a REIT pursuant to sections 856 through 860 of the Code for its taxable years ended December 31,
2010 through December 31, 2013, and the Company’s current and proposed method of operation will enable it to continue to
qualify as a REIT under the Code for its taxable year ending December 31, 2014 and thereafter; and
2. the
descriptions of the law and the legal conclusions contained in the Prospectus under the caption “Material Federal Income
Tax Considerations” and in the Prospectus Supplement under the caption “Additional Material Federal Income Tax Considerations”
are correct in all material respects.
We will not review
on a continuing basis the Company’s compliance with the documents or assumptions set forth above, or the representations
set forth in the Certificate of Representations. Accordingly, no assurance can be given that the actual results of the Company’s
operations for any given taxable year will satisfy the requirements for qualification and taxation as a REIT. Although we have
made such inquiries and performed such investigations as we have deemed necessary to fulfill our professional responsibilities
as counsel, we have not undertaken an independent investigation of all the facts referred to in this opinion letter or the Certificate
of Representations. In particular, we note that the Company has engaged in transactions in connection with which we have not provided
legal advice and which we may not have reviewed.
The foregoing opinions
are limited to the U.S. federal income tax matters addressed herein, and no other opinions are rendered with respect to other U.S.
federal tax matters or to any issues arising under the tax laws of any other country, or any state or locality. We undertake no
obligation to update the opinions expressed herein after the date of this letter.
Other than as expressly
stated above, we express no opinion as to any other federal income tax issue or matter relating to the Company. This opinion is
expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes of matters stated, represented,
covenanted, or assumed herein or any subsequent changes in applicable law. This opinion is issued to you in connection with the
Offering and may not be used or relied upon by any other person or for any other purpose without our express written consent.
|
Very truly yours, |
|
|
|
HONIGMAN MILLER SCHWARTZ AND COHN LLP |
JHC:MSB:RSS:MKH:JEC
EXHIBIT F
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
As representatives of the several Underwriters
(as defined herein)
| Re: | Agree Realty Corporation, a Maryland corporation (the “Company”) — Issuance and Sale of 2,250,000 shares
(the “Firm Shares”) of common stock, par value $0.0001, per share of the Company (“Common Stock”), and
the grant to the Underwriters of the option to purchase up to an additional 337,500 shares (the “Option Shares”, and
together with the Firm Shares, the “Shares”) of Common Stock pursuant to a Registration Statement on Form S-3 (Registration
No. 333-184095) originally filed with the United States Securities and Exchange Commission (the “Commission”) on September
25, 2012 (the “Registration Statement”) |
Ladies and Gentlemen:
We have acted as Maryland corporate counsel
to the Company in connection with the matter referenced above. The Company has requested that we provide you with our opinion,
as to certain aspects of Maryland law, pursuant to the Underwriting Agreement dated as of December __, 2014 (the “Underwriting
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 Raymond James & Associates, Inc. and Citigroup Global
Markets Inc., as representatives of the several underwriters listed in Schedule I to the Underwriting Agreement (the “Underwriters”).
Unless otherwise defined herein, all capitalized terms shall have the meanings ascribed to them in the Underwriting Agreement.
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 and two Articles Supplementary filed with
the Department on July 31, 2013;
(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 (the “Bylaws”);
(iii) resolutions
adopted by the Board of Directors of the Company (the “Board of Directors”), or a duly authorized committee thereof,
on or as of [___________, 1993], December 2, 2014 and December [3], 2014, which, among other things, authorized the issuance of
the Shares (together, the “Directors’ Resolutions”);
(iv) the
First Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as amended (the “Partnership Agreement”);
(v)
a copy of the fully executed Underwriting Agreement;
(vi) the
Registration Statement and (A) the related base prospectus dated October 15, 2012 (the “Base Prospectus”), the preliminary
prospectus supplement dated December 3, 2014, and each of the issuer free writing prospectuses listed on Schedule II to the Underwriting
Agreement (collectively, the “Disclosure Package”), and (B) the related final prospectus supplement dated December
__, 2014 (the “Prospectus Supplement” and together with the Base Prospectus, the “Prospectus”);
(vii) a
specimen stock certificate used to evidence shares of Common Stock;
(viii) a
certificate of ________________, ______________________________
of the Company, and Brian Dickman, Chief Financial Officer and Secretary of the Company, dated as of the date hereof (the “Officers’
Certificate”), to the effect that, among other things, the Charter, the Bylaws, the Directors’ 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, among other things, as to the manner of adoption of the Directors’
Resolutions, the authorization for issuance of the Shares, and the authorization, approval, execution and delivery of the Underwriting
Agreement;
(ix) a
status certificate of the Department, dated as of a recent date, to the effect that the Company 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; and
(x) 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.
Insofar as the opinions and other matters
set forth herein constitute, or are based upon, factual matters, we have relied solely upon the Officers’ Certificate and
our knowledge. The words “our knowledge” signify that, in the course of our representation of the Company in matters
with respect to which we have been engaged by the Company, no information has come to our attention that would give us actual knowledge
or actual notice that any of the foregoing certificates on which we have relied with respect to factual matters are not accurate
and complete. We have undertaken no independent investigation or verification of any such factual matters. The words “our
knowledge” and similar language used herein are intended to be limited to the knowledge of the attorneys within our firm
who have worked as Maryland corporate counsel to the Company in connection with the offering, issuance and sale of the Shares,
after reasonable inquiry of other lawyers of our firm, if any, providing substantive attention to other legal matters on behalf
of the Company or the Operating Partnership.
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) there
are no material modifications of, or amendments to, the pertinent sections of the Disclosure Package, the Prospectus or the Underwriting
Agreement;
(d) 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;
(e) the
Officers’ Certificate and all other certificates submitted to us are true and correct both when made and as of the date hereof;
(f) all
representations and warranties of the Company made in, or pursuant to, the Underwriting Agreement (other than representations and
warranties of the Company as to legal matters on which opinions are rendered herein) are true and correct;
(g) the
Company has not, and is not required to be, registered under the Investment Company Act of 1940;
(h) 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;
(i) the
corporate action required to be taken by the Company as general partner of the Operating Partnership, in authorizing actions in
its capacity as general partner of the Operating Partnership, is the same as that which would be required to be taken had the Operating
Partnership been organized as a limited partnership under the laws of the State of Maryland, instead of the State of Delaware,
with the Company as its sole general partner;
(j) each
of the parties thereto (other than the Company acting in its own capacity and, in its capacity as general partner of the Operating
Partnership, on behalf of the Operating Partnership) has duly and validly authorized, executed and delivered each instrument, document
and agreement, including but not limited to, the Underwriting Agreement, executed in connection with the transactions contemplated
by the Underwriting Agreement to which such party is a signatory, and such party's obligations set forth therein are its legal,
valid and binding obligations, enforceable in accordance with their respective terms; and
(k)
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 (“MGCL”), in violation of Section 3-602 of MGCL.
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 Company has the requisite corporate power to own or lease its properties and conduct its business as described in the Disclosure
Package and the Prospectus, to act as the general partner of the Operating Partnership and to execute and deliver the Underwriting
Agreement in its own capacity and in its capacity as general partner of the Operating Partnership, and to perform its obligations
thereunder. |
| 3. | The execution, delivery and performance by the Company in its own capacity and in its capacity as general partner of the Operating
Partnership of the Underwriting Agreement has been duly authorized by all necessary corporate action on the part of the Company,
and the Underwriting Agreement has been duly executed and delivered by the Company in its own capacity and in its capacity as general
partner of the Operating Partnership. |
| 4. | The authorized capital stock of the Company consists of 28,000,000 authorized shares of Common Stock, 8,000,000 authorized
shares of excess stock, par value $0.0001 per share and 4,000,000 authorized shares of preferred stock, par value $0.0001 per share,
of which 200,000 shares have been classified as shares of Series A Junior Participating Preferred Stock, par value $0.0001 per
share. |
| 5. | The Shares have been duly authorized for issuance by all necessary corporate action on the part of the Company and, when issued
and delivered by the Company to the Underwriters in accordance with the provisions of the Underwriting Agreement in exchange for
payment therefor in accordance with the Directors’ Resolutions and the terms of the Underwriting Agreement, such Shares will
be validly issued, fully paid and non-assessable and will conform in all material respects to the description thereof under the
caption “Description of Common Stock” in the Disclosure Package and the Prospectus. The issuance and sale of the Shares
by the Company are not subject to any pre-emptive or similar rights arising by operation of the MGCL or under the Charter or Bylaws. |
| 6. | The discussion in the Disclosure Package and the Prospectus under the captions “Description of Common Stock” and
“Description of Preferred Stock” insofar as such discussion constitutes a summary of the Charter or Bylaws or the MGCL,
is accurate in all material respects. |
| 7. | The specimen stock certificate used to evidence shares of Common Stock complies in all material respects with the applicable
requirements of the MGCL and the Charter and Bylaws. |
| 8. | The execution, delivery and performance by the Company in its own capacity and in its capacity as general partner of the Operating
Partnership of the Underwriting Agreement and the consummation by the Company of the transactions contemplated thereby (including
the offer, issuance and sale of the Shares by the Company) on the date hereof will not result in any violation of: (i) the provisions
of the Charter or Bylaws; (ii) the provisions of the MGCL; or (iii) to our knowledge, any decree, judgment or order of any court
or governmental authority of the State of Maryland known to us and applicable by name to the Company. |
| 9. | No approval, authorization, consent or order of, or registration or filing with, any governmental authority of the State of
Maryland pursuant to the MGCL is required on the part of the Company in connection with the execution, delivery and performance
of the Underwriting Agreement by the Company in its own capacity and in its capacity as general partner of the Operating Partnership,
or the offering, issuance and sale of the Shares, except for such as have been obtained or waived. |
10. To
our knowledge, based solely upon the Financing Statement Search Report dated December 3, 2014 prepared by CT Lien Solutions (the
“Search Report”) and attached hereto as Exhibit A, there are no financing statements under the Maryland Uniform
Commercial Code naming the Company as debtor on file with the State Department of Assessments and Taxation of Maryland.
The opinions presented in this letter are
limited to the laws of the State of Maryland, and we do not express any opinions herein concerning any laws other than the laws
of the State of Maryland. Furthermore, the opinions presented in this letter are limited to the matters specifically set forth
herein and no other opinion shall be inferred beyond the matters expressly stated. Without limiting the generality of the foregoing
sentence, we express no opinion with respect to the applicability or effect of any federal or state securities or tax laws, federal
or state laws regarding fraudulent transfers, or with respect to the limited partnership actions required for the Operating Partnership
to authorize, execute or deliver any document.
This letter is issued as of the date hereof
and the opinions presented herein are necessarily limited to laws now in effect and facts and circumstances presently existing
and brought to our attention. We assume no obligation to supplement the opinions presented herein if any applicable laws change
after the date hereof or if we become aware of any facts or circumstances which now exist or which occur or arise in the future
that may change the opinions presented herein after the date hereof.
The opinions presented in this letter are
solely for the use of: (i) the Underwriters in connection with the transactions contemplated by the Underwriting Agreement; (ii)
Honigman Miller Schwartz and Cohn LLP, as counsel to the Company, in rendering its opinion pursuant to the Underwriting Agreement;
and (iii) Hunton & Williams LLP, as counsel to the Underwriters, in rendering its opinion pursuant to the Underwriting Agreement.
The opinions presented herein may not be relied upon by any other person, or by the Underwriters, Honigman Miller Schwartz and
Cohn LLP or Hunton & Williams LLP for any other purpose, without our prior written consent.
EXHIBIT A
Search Report
Exhibit
5.1
December 9, 2014
Agree Realty Corporation
31850 Northwestern Highway
Farmington Hills, Michigan 48334
| Re: | Agree Realty Corporation, a Maryland corporation (the “Company”)
— Issuance and Sale of up to 2,587,500 shares (the “Shares”) of common stock, par value $0.0001 per share (“Common
Stock”), of the Company pursuant to a Registration Statement on Form S-3 (Registration No. 333-184095) originally filed
with the United States Securities and Exchange Commission (the “Commission”) on September 25, 2012 (the “Registration
Statement”) |
Ladies
and Gentlemen:
We
have acted as Maryland corporate counsel to the Company in connection with the registration of the Shares under the Securities
Act of 1933, as amended (the “Act”), by the Company 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 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 and two Articles Supplementary filed with the Department on July 31, 2013;
(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 (the “Bylaws”);
(iii) resolutions
adopted by the Board of Directors of the Company, or a duly authorized committee thereof, on or as of August 17, 2012,
December 2, 2014 and December 4, 2014, which, among other things, authorized the issuance of the Shares (together, the
“Directors’ Resolutions”);
Atlanta | Baltimore | Bethesda | Denver | Las Vegas | Los Angeles | New Jersey | New York | Philadelphia
| Phoenix | Salt Lake City | San Diego | Washington, DC | Wilmington
BALLARD SPAHR LLP
Agree Realty Corporation
December 9, 2014
Page 2
(iv) 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;
(v) a
certificate of Joey Agree, President and Chief Executive Officer of the Company, and Brian Dickman, 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 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;
(vi) 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
(vii) 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;
(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; and
BALLARD SPAHR LLP
Agree Realty Corporation
December 9, 2014
Page 3
(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.
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 have been duly authorized for issuance by all necessary corporate action on the part of the Company and, when issued and
delivered by the Company in exchange for payment therefor in accordance with 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.
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 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, |
|
Ballard Spahr LLP |
Exhibit 8.1
|
(313) 465-7000
Fax: (313) 465-8000
honigman.com |
December
9, 2014
Agree
Realty Corporation
31850 Northwestern Highway
Farmington Hills, Michigan 48334
| Re: | Certain
Federal Income Tax Matters |
Ladies
and Gentlemen:
We
have acted as counsel to Agree Realty Corporation, a Maryland corporation (the “Company”),
in connection with the preparation of the offer and sale of 2,587,500 shares of Common Stock pursuant to a prospectus supplement
filed on December 3, 2014 (the “Prospectus
Supplement”),
as part of a registration statement on Form S-3 (File No. 333-184095) declared effective by the Securities and Exchange Commission
on October 15, 2012 (the “Registration
Statement”), with respect to the offer and sale of up to an aggregate of $250,000,000 of shares of common stock,
par value $0.0001, of the Company (the “Common
Stock”), shares of preferred stock, par value $0.0001 per share, of the Company (the “Preferred
Stock”), depositary shares representing Preferred Stock (“Depositary
Shares”), and warrants entitling the holders to purchase Common Stock, Preferred Stock, Depositary Shares or
any combination of these securities to be offered from time-to-time. This opinion regarding certain U.S. federal income tax matters
is furnished at the request of the Company pursuant to section 8(c) of the Underwriting Agreement, dated December 4, 2014 (the
“Underwriting Agreement”)
by and between the Raymond James & Associates, Inc. and Citigroup Global Markets Inc. as representatives for certain underwriters
as set forth on Schedule I of the Underwriting Agreement (the “Representatives”) and the Company.
We
have also acted as counsel to the Company in connection with the preparation of the section captioned “Additional Material
U.S. Federal Income Tax Consequences” in the Prospectus Supplement.
In
rendering the opinions stated below, we have examined and, with your consent, relied upon the following documents:
| (i) | the Company’s Articles of Incorporation, as
amended; |
| (ii) | the Registration Statement, the prospectus (the “Prospectus”)
filed as part of the Registration Statement, and the Prospectus Supplement; |
2290 First
National Building • 660 Woodward Avenue • Detroit, Michigan 48226-3506 |
Detroit
• Lansing • Oakland County • Ann Arbor • Kalamazoo |
| (iii) | the Limited Partnership Agreement of the Operating
Partnership as amended to the date hereof (the “Partnership Agreement”); |
| (iv) | a letter of even date to us from Brian Dickman, Chief
Financial Officer of the Company, containing certain written representations of the Company (“Certificate of Representations”); |
| (v) | the tax opinion
issued by Hunton & Williams LLP, dated November 27, 2013, regarding the Company’s
qualification as a real estate investment trust (a “REIT”)
for federal income tax purposes (the “Prior
REIT Opinion”);
and |
| (vi) | such other records, certificates and documents as
we have deemed necessary or appropriate for purposes of rendering the opinions set forth herein. |
In
our examination of the foregoing documents, we have assumed, with your consent, that:
| (i) | each of the documents referred to above has been duly
authorized, executed, and delivered; is authentic, if an original, or is accurate, if a copy; has not been amended; and the signatures
on each original document are genuine; |
| (ii) | where any such document required execution by a person,
the person who executed the document had proper authority and capacity; |
| (iii) | all representations and statements set forth in such
documents are and will be true and correct; |
| (iv) | where any such document imposes obligations on a person
or entity, such obligations have been or will be performed or satisfied in accordance with their terms; |
| (v) | during its taxable year ending December 31, 2014,
and future taxable years, the Company will operate in a manner that will make the representations contained in the Certificate
of Representations true for such years, without regard to any qualifications as to knowledge or belief; |
| (vi) | the Company will not make any amendments to its organizational
documents after the date of this opinion that would adversely affect the Company’s qualification as a REIT for any taxable
year; and |
| (vii) | no action will be taken by the Company after the date
hereof that would have the effect of altering the facts upon which the opinions set forth below are based. |
2290 First
National Building • 660 Woodward Avenue • Detroit, Michigan 48226-3506 |
Detroit
• Lansing • Oakland County • Ann Arbor • Kalamazoo |
|
We
have not independently verified all of the representations, facts or assumptions set forth in such documents or any other
documents. We consequently have assumed that the information presented in such documents or otherwise furnished to us
accurately and completely describes all facts stated therein. In connection with the opinions rendered below, we have assumed
the correctness of the Prior REIT Opinion with respect to all periods prior to January 1, 2013, subject only to our limited
independent investigation with respect to the periods before January 1, 2013. We also have relied upon the correctness,
without regard to any qualification as to knowledge or belief, of the factual representations and covenants contained in the
Certificate of Representations and the factual matters discussed in the Prospectus and the Prospectus Supplement that relate
to the Company’s status as a REIT. Where the factual representations in the Certificate of Representations involve
terms defined in the Internal Revenue Code of 1986, as amended (the “Code”),
the Treasury regulations thereunder (the “Regulations”),
published rulings of the Internal Revenue Service (the “Service”),
or other relevant authority, we have reviewed with the individual making such representations the relevant provisions of the
Code, the applicable Regulations, the published rulings of the Service, and other relevant authority. We are not aware of any
facts that are inconsistent with the representations contained in the Certificate of Representations. It should be noted,
however, that the Code, Regulations, judicial decisions, and administrative interpretations are subject to change at any time
and, in some circumstances, with retroactive effect. We can give no assurance, therefore, that legislative enactments,
administrative changes or court decisions may not be forthcoming that would modify or supersede the opinions stated herein.
In addition, there can be no assurance that positions contrary to our opinions will not be taken by the Service, or that a
court considering the issues will not hold contrary to such opinions. The Service has not issued Regulations or
administrative interpretations with respect to various provisions of the Code relating to REIT qualification. No assurance
can be given that the law will not change in a way that will prevent the Company from qualifying as a REIT.
Moreover,
the opinions set forth below represent our conclusions based upon the documents, facts, assumptions and representations referred
to above. Any material amendments to such documents or changes in any significant facts after the date hereof, or inaccuracy of
such assumptions or representations, could affect the opinions stated herein.
We
express no opinion as to the laws of any jurisdiction other than the federal income tax laws of the United States of America to
the extent specifically referred to herein.
Based
on the documents and assumptions set forth above, the representations and covenants set forth in the Certificate of Representations,
and the factual matters discussed in the Prospectus under the caption “Material Federal Income Tax Considerations”
and in the Prospectus Supplement under the caption “Additional Material Federal Income Tax Considerations” (which are
incorporated herein by reference), we are of the opinion that:
1. the
Company qualified to be taxed as a REIT pursuant to sections 856 through 860 of the Code for its taxable year ended December 31,
2013, and the Company’s current and proposed method of operation will enable it to continue to qualify as a REIT under the
Code for its taxable year ending December 31, 2014 and thereafter; and
2290 First
National Building • 660 Woodward Avenue • Detroit, Michigan 48226-3506 |
Detroit
• Lansing • Oakland County • Ann Arbor • Kalamazoo |
2. the
descriptions of the law and the legal conclusions contained in the Prospectus under the caption “Material Federal Income
Tax Considerations” and in the Prospectus Supplement under the caption “Additional Material Federal Income Tax Considerations”
are correct in all material respects.
We
will not review on a continuing basis the Company’s compliance with the documents or assumptions set forth above, or the
representations set forth in the Certificate of Representations. Accordingly, no assurance can be given that the actual results
of the Company’s operations for any given taxable year will satisfy the requirements for qualification and taxation as a
REIT. Although we have made such inquiries and performed such investigations as we have deemed necessary to fulfill our professional
responsibilities as counsel, we have not undertaken an independent investigation of all the facts referred to in this opinion letter
or the Certificate of Representations. In particular, we note that the Company has engaged in transactions in connection with which
we have not provided legal advice and which we may not have reviewed.
The
foregoing opinions are limited to the U.S. federal income tax matters addressed herein, and no other opinions are rendered with
respect to other U.S. federal tax matters or to any issues arising under the tax laws of any other country, or any state or locality.
We undertake no obligation to update the opinions expressed herein after the date of this letter.
2290 First
National Building • 660 Woodward Avenue • Detroit, Michigan 48226-3506 |
Detroit
• Lansing • Oakland County • Ann Arbor • Kalamazoo |
Other
than as expressly stated above, we express no opinion as to any other federal income tax issue or matter relating to the Company.
This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes of matters
stated, represented, covenanted, or assumed herein or any subsequent changes in applicable law. This opinion is issued to you in
connection with the Offering and may not be used or relied upon by any other person or for any other purpose without our express
written consent.
|
Very truly yours, |
|
|
|
Honigman Miller Schwartz and Cohn LLP |
|
|
|
HONIGMAN MILLER SCHWARTZ AND COHN LLP |
JHC:MSB:RSS:MKH:JEC
2290 First
National Building • 660 Woodward Avenue • Detroit, Michigan 48226-3506 |
Detroit
• Lansing • Oakland County • Ann Arbor • Kalamazoo |
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