Guaranty, dated as of December 27, 2018, by and among the Company and each of the subsidiaries of Agree Limited Partnership party thereto
Exhibit 10.28
GUARANTY
THIS GUARANTY (this “Guaranty”) is executed as of December 27, 2018, by AGREE REALTY CORPORATION, a Maryland corporation (the “Parent Guarantor”), and EACH OF THE SUBSIDIARIES OF AGREE LIMITED PARTNERSHIP, a Delaware limited partnership (the “Borrower”), LISTED ON SCHEDULE 1 ATTACHED HERETO or who become a party hereto pursuant to Section 21 below (each, a “Subsidiary Guarantor” and collectively, “Subsidiary Guarantors”, and together with the Parent Guarantor, each a “Guarantor” and collectively, “Guarantors”) for the benefit of the Credit Parties (defined below).
RECITALS:
| A. Pursuant to that certain Term Loan Agreement, dated of even date herewith (as amended, modified, supplemented, or restated from time to time, the “Credit Agreement”), by and among the Parent Guarantor, as Parent, the Borrower, the Lenders now or hereafter party to the Credit Agreement (the “Lenders”), the other parties thereto from time to time and PNC Bank, National Association, as Administrative Agent (the “Administrative Agent” and, together with the Lenders and their respective successors and assigns, each a “Credit Party” and collectively the “Credit Parties”), the Credit Parties have agreed to make available to the Borrower certain financial accommodations on the terms and conditions set forth in the Credit Agreement. Capitalized terms used herein shall, unless otherwise indicated, have the respective meanings set forth in the Credit Agreement. |
| B. The Parent Guarantor is the owner of more than ninety-eight percent (98%) of the equity interest in the Borrower and will benefit, directly or indirectly, from the Credit Parties’ extension of credit to the Borrower. |
| C. Each Subsidiary Guarantor is a Subsidiary of the Borrower and will, directly or indirectly, benefit from the Credit Parties’ extension of credit to the Borrower. |
| D. This Guaranty is integral to the transactions contemplated by the Loan Documents, and the execution and delivery hereof is a condition precedent to the Credit Parties’ obligations to extend credit to the Borrower under the Loan Documents. |
NOW, THEREFORE, as an inducement to the Credit Parties to enter into the Credit Agreement and to make Loans to the Borrower thereunder, and to extend such credit to the Borrower as the Credit Parties may from time to time agree to extend, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Guarantors hereby jointly and severally guarantee payment of the Guaranteed Obligations (hereinafter defined) and hereby agree as follows:
Section 1.NATURE OF GUARANTY. Each Guarantor hereby absolutely and unconditionally guarantees, jointly and severally, as a guarantee of payment and not merely as a guarantee of collection, prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of any and all existing and future Obligations including, without limitation, all indebtedness and liabilities of every kind, nature and character, direct or indirect, absolute or contingent, liquidated or unliquidated, voluntary or involuntary, of the Borrower to the Credit Parties arising under the Credit Agreement or any other Loan Documents (including, without limitation, all renewals, extensions, modifications, amendments, and restatements thereof and all costs, reasonable attorneys' fees and expenses incurred by any Credit Party in connection with the collection or enforcement thereof) including, without
limitation, any and all environmental indemnifications contained in the Loan Documents (collectively, the “Guaranteed Obligations”). For the avoidance of doubt, the “Guaranteed Obligations” shall not include any obligations or liabilities under any Swap Contract. Administrative Agent's books and records showing the amount of the Guaranteed Obligations shall be admissible in evidence in any action or proceeding, and shall be prima facie evidence for the purpose of establishing the amount of the Guaranteed Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity, or enforceability of the Guaranteed Obligations or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, or extent of any collateral therefor, or by any fact or circumstance relating to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of any Guarantor under this Guaranty.
Section 2.NO SETOFF OR DEDUCTIONS; TAXES. Each Guarantor represents and warrants that it is incorporated, organized or formed, as applicable, and resident in the United States of America. All payments by any Guarantor hereunder shall be paid in full, without setoff or counterclaim or any deduction or withholding whatsoever, including, without limitation, for any and all present and future taxes. If any Guarantor must make a payment under this Guaranty, then such Guarantor represents and warrants that it will make the payment from its offices located in the United States of America to Administrative Agent, for the benefit of the Credit Parties, so that no withholding tax is imposed on such payment. Notwithstanding the foregoing, if any Guarantor makes a payment under this Guaranty to which withholding tax applies, or any taxes (other than Excluded Taxes) are at any time imposed on any payments under or in respect of this Guaranty including, but not limited to, payments made pursuant to this Section 2, then such Guarantor shall pay all such taxes to the relevant authority in accordance with applicable law such that each Credit Party receives the sum it would have received had no such deduction or withholding been made and shall also pay to Administrative Agent, for the benefit of the Credit Parties, on demand, all additional amounts which Administrative Agent specifies as necessary to preserve the after-tax yield the Credit Parties would have received if such taxes had not been imposed. Guarantors shall promptly provide Administrative Agent with an original receipt or certified copy issued by the relevant authority evidencing the payment of any such amount required to be deducted or withheld.
Section 3.NO TERMINATION. This Guaranty is a continuing and irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable under this Guaranty are indefeasibly paid and performed in full and any commitments of the Credit Parties or facilities provided by the Credit Parties with respect to the Guaranteed Obligations are terminated. All payments under this Guaranty shall be made at Administrative Agent's Office in Dollars.
Section 4.WAIVER OF NOTICES. Each Guarantor waives notice of the acceptance of this Guaranty and of the extension or continuation of the Guaranteed Obligations or any part thereof. Each Guarantor further waives presentment, protest, notice, dishonor or default, demand for payment, notice of intent to accelerate, notice of acceleration, and any other notices to which any Guarantor might otherwise be entitled.
Section 5.NO SUBROGRATION. No Guarantor shall exercise any right of subrogation, contribution, or similar rights with respect to any payments it makes under this Guaranty until all
of the Guaranteed Obligations and any amounts payable under this Guaranty are indefeasibly paid and performed in full and any commitments of the Credit Parties or facilities provided by the Credit Parties with respect to the Guaranteed Obligations are terminated. If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to Administrative Agent, for the benefit of the Credit Parties, to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
Section 6.WAIVER OF SURETYSHIP DEFENSES. Each Guarantor agrees that the Credit Parties may, at any time and from time to time, and without notice to Guarantors, make any agreement with the Borrower or with any other person or entity liable on any of the Guaranteed Obligations or providing collateral as security for the Guaranteed Obligations, for the extension, renewal, payment, compromise, discharge, or release of the Guaranteed Obligations or any collateral (in whole or in part), or for any modification, amendment or waiver of the terms thereof or of any instrument or agreement evidencing the Guaranteed Obligations or the provision of collateral, all without in any way impairing, releasing, discharging, or otherwise affecting the obligations of any Guarantor under this Guaranty. Each Guarantor waives any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever of the liability of the Borrower, or any claim that any Guarantor's obligations exceed or are more burdensome than those of the Borrower and waives the benefit of any statute of limitations affecting the liability of any Guarantor hereunder. Each Guarantor waives any right to enforce any remedy which such Guarantor now has or may hereafter have against the Borrower and waives any benefit of and any right to participate in any security now or hereafter held by Administrative Agent for the benefit of the Credit Parties. Further, each Guarantor consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of such Guarantor under this Guaranty or which, but for this provision, might operate as a discharge of such Guarantor.
Section 7.EXHAUSTION OF OTHER REMEDIES NOT REQUIRED. The obligations of each Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of the Guaranteed Obligations. Each Guarantor waives diligence by any of the Credit Parties and action on delinquency in respect of the Guaranteed Obligations or any part thereof, including, without limitation any provisions of law requiring any Credit Party to exhaust any right or remedy or to take any action against the Borrower, any other guarantor, or any other person, entity, or property before enforcing this Guaranty against any Guarantor.
Section 8.REINSTATEMENT. Notwithstanding anything in this Guaranty to the contrary, this Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any portion of the Guaranteed Obligations is revoked, terminated, rescinded, or reduced or must otherwise be restored or returned upon the insolvency, bankruptcy, or reorganization of the Borrower or any other person or entity or otherwise, as if such payment had not been made and whether or not Administrative Agent is in possession of or has released this Guaranty and regardless of any prior revocation, rescission, termination or reduction.
Section 9.SUBORDINATION. Each Guarantor hereby expressly subordinates the payment of all obligations and indebtedness of the Borrower owing to such Guarantor, whether now existing
or hereafter arising and whether those obligations are (a) direct, indirect, fixed, contingent, liquidated, unliquidated, joint, several, or joint and several, (b) due or to become due to such Guarantor, (c) held by or are to be held by such Guarantor, (d) created directly or acquired by assignment or otherwise, or (e) evidenced in writing (collectively, the “Subordinated Debt”) to the indefeasible payment in full of all Guaranteed Obligations. Each Guarantor agrees not to accept any payment of such Subordinated Debt from the Borrower if a Default exists. If any Guarantor receives any payment of any Subordinated Debt in violation of the foregoing, then such Guarantor shall hold that payment in trust for the Credit Parties and promptly turn it over to Administrative Agent, for the benefit of the Credit Parties, in the form received (with any necessary endorsements), to be applied in accordance with the Credit Agreement, but without reducing or affecting in any manner the liability of any Guarantor under this Guaranty.
Section 10.INFORMATION. Each Guarantor agrees to furnish promptly to Administrative Agent any and all financial or other information required under the Credit Agreement regarding such Guarantor or its property as Administrative Agent may reasonably request in writing, to the extent such information is in such Guarantor's possession or control.
Section 11.STAY OF ACCELERATION. In the event that acceleration of the time for payment of any of the Guaranteed Obligations is stayed, upon the insolvency, bankruptcy, or reorganization of the Borrower or any other person or entity, or otherwise, all such amounts shall nonetheless be payable by Guarantors immediately upon demand by Administrative Agent.
Section 12. INDEMNIFICATION AND EXPENSES.
(a)Each Guarantor shall indemnify each Credit Party and each Related Party of any of the Credit Parties (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities, and related expenses (including, without limitation, the reasonable fees, charges, and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all reasonable fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or any Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery or enforcement of this Guaranty or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder, the consummation of the transactions contemplated hereby, or, in the case of Administrative Agent and its Related Parties only, the administration of this Guaranty; or (ii) any actual or prospective claim, litigation, investigation, or proceeding relating to any of the foregoing, whether based on contract, tort, or any other theory, whether brought by a third party or by any Loan Party, and regardless of whether any Indemnitee is a party thereto, provided that such indemnity shall not, as to any Indemnitee and its Related Parties, be available to the extent that such losses, claims, damages, liabilities, or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or its Related Parties.
(b)Each Guarantor shall pay to Administrative Agent upon demand the amount of any and all reasonable out-of-pocket costs and expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, that Administrative Agent may incur in connection
with the administration of this Guaranty, including, without limitation, any such costs and expenses incurred in the preservation, protection, or enforcement of any rights of any Credit Party in any case commenced by or against any Guarantor under the Bankruptcy Code (Title 11, United States Code) or any similar or successor statute. The obligations of Guarantors under the preceding sentence shall survive termination of this Guaranty.
Section 13.AMENDMENTS. No amendment, modification, termination, or waiver of any provision of this Guaranty, and no consent to any departure by any Guarantor from the terms and conditions hereof, shall in any event be effective unless the same shall be in writing and signed by Administrative Agent and each Guarantor. Any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given.
Section 14.NOTICES. Any notice or other communication herein required or permitted to be given shall be in writing and shall be in accordance with the provisions of Section 11.02 of the Credit Agreement. All notices or other communications hereunder shall be made to the applicable address, as follows: (i) if addressed to Administrative Agent, then to the address specified for Administrative Agent set forth on Schedule 11.02 of the Credit Agreement; and (ii) if addressed to any Guarantor, then c/o the Borrower to the address specified for the Borrower set forth on Schedule 11.02 of the Credit Agreement. Any party to this Guaranty may change its address, telecopier or telephone number for notices and other communications in accordance with the terms and provisions set forth in Section 11.02(d) of the Credit Agreement.
Section 15.NO WAIVER; ENFORCEABILITY. No failure by any Credit Party to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy or power hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law or in equity. The unenforceability or invalidity of any provision of this Guaranty shall not affect the enforceability or validity of any other provision herein.
Section 16.ASSIGNMENT. This Guaranty shall: (a) bind each Guarantor and its successors and assigns, provided that no Guarantor may assign its rights or obligations under this Guaranty without the prior written consent of Administrative Agent (and any attempted assignment without such consent shall be void); and (b) inure to the benefit of each of the Credit Parties and their respective successors and assigns and the Credit Parties may, without notice to any Guarantor and without affecting any Guarantor's obligations hereunder, assign or sell participations in the Guaranteed Obligations and this Guaranty, in whole or in part. Each Guarantor agrees that the Credit Parties may disclose to any prospective purchaser and any purchaser of all or part of the Guaranteed Obligations any and all information in the Credit Parties' possession concerning any Guarantor, this Guaranty, and any security for this Guaranty to the extent permitted under, and in compliance with, the terms of the Credit Agreement.
Section 17.CONDITION OF BORROWER. Each Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from the Borrower such information concerning the financial condition, business, and operations of the Borrower as Guarantors require, and that no Credit Party shall have any duty, and Guarantors are not relying
on any Credit Party at any time, to disclose to Guarantors any information relating to the business, operations, or financial condition of the Borrower.
Section 18.RIGHTS OF SETOFF. If and to the extent any payment is not made when due hereunder, then Administrative Agent and each other Credit Party (with the prior consent of Administrative Agent) may setoff and charge from time to time any amount so due against any or all of Guarantors' accounts or deposits with Administrative Agent or such other Credit Party.
Section 19.OTHER GUARANTEES. Unless otherwise agreed by Administrative Agent, the applicable Credit Party and Guarantors in writing, this Guaranty is not intended to supersede or otherwise affect any other guaranty now or hereafter given by Guarantors for the benefit of the Credit Parties or any term or provision thereof.
Section 20. REPRESENTATIONS AND WARRANTIES; LOAN DOCUMENTS. By execution hereof, each Guarantor covenants and agrees that certain representations, warranties, terms, covenants, and conditions set forth in the Loan Documents are applicable by their terms to such Guarantor and shall be imposed upon such Guarantor, and each Guarantor reaffirms that each such representation and warranty is true and correct and covenants and agrees to promptly and properly perform, observe, and comply with each such term, covenant, or condition. Moreover, each Guarantor acknowledges and agrees that this Guaranty is subject to the setoff provisions as noted in Section 18 above in favor of the Credit Parties. In the event the Credit Agreement or any other Loan Document shall cease to remain in effect for any reason whatsoever during any period when any part of the Guaranteed Obligations remains unpaid, such terms, covenants, and agreements of the Credit Agreement or such other Loan Document incorporated herein by this reference and which are, by their terms, made applicable to any Guarantors shall nevertheless continue in full force and effect as obligations of each Guarantor under this Guaranty.
Section 21.ADDITIONAL GUARANTORS. The initial Subsidiary Guarantors hereunder shall be each of the Subsidiaries of the Borrower that are signatories hereto and that are listed on Schedule 1 attached hereto. From time to time subsequent to the time hereof, additional Subsidiaries of the Borrower may become parties hereto as additional Subsidiary Guarantors (each an “Additional Guarantor”) by executing a counterpart of this Guaranty in the form of Exhibit A attached hereto. Upon delivery of any such counterpart to Administrative Agent, notice of which is hereby waived by Guarantors, each such Additional Guarantor shall be a Guarantor and shall be a party hereto as if such Additional Guarantor were an original signatory hereof. Each Guarantor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Guarantor hereunder, or by any election by Administrative Agent not to cause any Subsidiary of the Borrower to become an Additional Guarantor hereunder. This Guaranty shall be fully effective as to any Guarantor that is or becomes a party hereto.
Section 22.RELEASE OF GUARANTORS. Pursuant to Sections 7.14 and 10.10 of the Credit Agreement, a Subsidiary Guarantor shall be released from its obligations under this Guaranty by Administrative Agent's execution of a Release of Guaranty in the form of Exhibit B attached hereto. Each Guarantor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the release of any other Guarantor hereunder.
Section 23. GOVERNING LAW; JURISDICTION; ETC.
(a)GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK OTHER THAN THE CHOICE OF LAWS PROVISIONS THEREOF (OTHER THAN SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
(b)SUBMISSION TO JURISDICTION. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY CREDIT PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c)WAIVER OF VENUE. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN SECTION 23(b). EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d)SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02 OF THE CREDIT AGREEMENT. NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
(e)WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 23.
Section 24.COUNTERPARTS. This Guaranty may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 25.ACKNOWLEDGMENT OF BENEFITS; CONTRIBUTION; EFFECT OF AVOIDANCE PROVISIONS.
(a)Each Guarantor acknowledges (i) that it has received, or will receive, significant financial and other benefits, either directly or indirectly, from the proceeds of the Loans made by the Lenders to the Borrower; (ii) that the benefits received by such Guarantor are reasonably equivalent consideration for such Guarantor's execution of this Guaranty; and (iii) that such benefits include, without limitation, the access to capital afforded to the Borrower pursuant to the Credit Agreement from which the activities of such Guarantor will be supported. Each Guarantor is executing this Agreement and the other Loan Documents in consideration of those benefits received by it.
(b)Each Guarantor hereby agrees as among themselves that, in connection with payments made hereunder, each Guarantor shall have a right of contribution from each other Guarantor in accordance with applicable Law. Such contribution rights shall be subordinate and subject in right of payment to the Guaranteed Obligations until such time as the Guaranteed Obligations have been indefeasibly and irrevocably paid in full, and none of the Guarantors shall exercise any such contribution rights until the Guaranteed Obligations have been indefeasibly and irrevocably paid in full.
(c)It is the intent of each Guarantor, the Administrative Agent and the Lenders that in any proceeding under any Debtor Relief Laws, such Guarantor's maximum obligation hereunder shall equal, but not exceed, the maximum amount which would not otherwise cause the obligations of such Guarantor hereunder (or any other obligations of such Guarantor to the Administrative Agent and the other Lenders under the Loan Documents) to be avoidable or unenforceable against such Guarantor in such proceeding as a result of applicable Laws, including, without limitation, (i) Section 548 of the Bankruptcy Code of the United States and (ii) any state fraudulent transfer
or fraudulent conveyance act or statute applied in such proceeding, whether by virtue of Section 544 of the Bankruptcy Code of the United States or otherwise. The Laws under which the possible avoidance or unenforceability of the obligations of such Guarantor hereunder (or any other obligations of such Guarantor to the Administrative Agent and the other Lenders under the Loan Documents) shall be determined in any such proceeding are referred to herein as “Avoidance Provisions”. Accordingly, to the extent that the obligations of a Guarantor hereunder would otherwise be subject to avoidance under the Avoidance Provisions, the maximum Guaranteed Obligations for which such Guarantor shall be liable hereunder shall be reduced to the greater of (A) the amount which, as of the time any of the Guaranteed Obligations are deemed to have been incurred by such Guarantor under the Avoidance Provisions, would not cause the obligations of such Guarantor hereunder (or any other obligations of such Guarantor to the Administrative Agent and the other Lenders under the Loan Documents), to be subject to avoidance under the Avoidance Provisions or (B) the amount which, as of the time demand is made hereunder upon such Guarantor for payment on account of the Guaranteed Obligations, would not cause the obligations of such Guarantor hereunder (or any other obligations of such Guarantor to the Administrative Agent and the Lenders under the Loan Documents), to be subject to avoidance under the Avoidance Provisions. The provisions under this Section are intended solely to preserve the rights of the Administrative Agent and the Lenders hereunder to the maximum extent that would not cause the obligations of any Guarantor hereunder to be subject to avoidance under the Avoidance Provisions, and no Guarantor or any other Person shall have any right or claim under this Section as against the Administrative Agent and the Lenders that would not otherwise be available to such Person under the Avoidance Provisions.
Section 26. FINAL AGREEMENT. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE CONTRACT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY AND ALL PREVIOUS AGREEMENTS AND UNDERSTANDINGS, ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Section 27.CLAIMS AGAINST PARENT GUARANTOR. Any and all persons having a claim against the Parent Guarantor (whether in its capacity as the sole general partner of the Borrower, a limited partner in the Borrower, a guarantor of the Borrower or otherwise), hereunder or in connection with any matter that is the subject hereof, shall look solely to the Parent Guarantor's assets, and in no event shall the obligation of the Parent Guarantor be enforceable against any shareholder, trustee, officer, employee or agent of the Parent Guarantor personally. Nothing herein shall limit the rights of the Administrative Agent or the Lenders against the Borrower.
[Signature Pages Follow]
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed and delivered as of the date first written above.
| PARENT GUARANTOR | AGREE REALTY CORPORATION, | |
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| Name: | Joel N. Agree |
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| Title: | President and Chief Executive Officer |
| SUBSIDIARY GUARANTORS: | AGREE 6 LA & MS, LLC, a Delaware limited liability company AGREE 1031, LLC, a Delaware limited liability company AGREE 117 MISSION, LLC, a Michigan limited liability company AGREE 17-92, LLC, a Florida limited liability company AGREE 2016, LLC, a Delaware limited liability company AGREE ALCOA TN LLC, a Tennessee limited liability company AGREE ALLENTOWN PA LLC, a Pennsylvania limited liability company AGREE ALTOONA, PA, LLC, a Delaware limited liability company AGREE AMERICUS GA, LLC, a Delaware limited liability company AGREE ANDERSON SC LLC, a Delaware limited liability company AGREE ANN ARBOR MI, LLC, a Delaware limited liability company AGREE ANN ARBOR STATE STREET, LLC, a Michigan limited liability company |
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| By: | Agree Limited Partnership, |
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| AGREE ANTIOCH, LLC, an Illinois limited liability company AGREE APOPKA FL, LLC, a Delaware limited liability company AGREE APPLETON WI, LLC, a Delaware limited liability company AGREE ARCHER CHICAGO IL, LLC, a Delaware limited liability company AGREE ARLINGTON TX LLC, a Texas limited liability company AGREE ATCHISON, LLC, a Kansas limited liability company AGREE ATLANTIC BEACH, LLC, a Delaware limited liability company AGREE BALTIMORE MD, LLC, a Delaware limited liability company AGREE BATON ROUGE LA LLC, a Louisiana limited liability company AGREE BELTON MO LLC, a Delaware limited liability company AGREE BELVIDERE IL, LLC, an Illinois limited liability company AGREE BERWYN IL LLC, an Illinois limited liability company AGREE BLOOMINGTON MN, LLC, a Delaware limited liability company AGREE BRENHAM TX, LLC, a Delaware limited liability company AGREE BRIGHTON, LLC, a Delaware limited liability company AGREE BROOKLYN OH LLC, an Ohio limited liability company AGREE BT, LLC, a Delaware limited liability company |
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| By: | Agree Limited Partnership, |
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| AGREE BUFFALO CENTER IA, LLC, a Delaware limited liability company AGREE BURLINGTON, LLC, a Delaware limited liability company AGREE CANNON STATION LLC, a Delaware limited liability company AGREE CARLINVILLE IL, LLC, a Delaware limited liability company AGREE CEDAR PARK TX, LLC, a Delaware limited liability company AGREE CENTER POINT BIRMINGHAM AL LLC, an Alabama limited liability company AGREE CHANDLER, LLC, an Arizona limited liability company AGREE CHARLOTTE POPLAR, LLC, a North Carolina limited liability company AGREE CHICAGO KEDZIE, LLC, an Illinois limited liability company AGREE COCHRAN GA, LLC, a Georgia limited liability company AGREE COLUMBIA SC, LLC, a Delaware limited liability company AGREE COLUMBUS OH, LLC, a Delaware limited liability company AGREE CONCORD, LLC, a North Carolina limited liability company AGREE CRYSTAL RIVER FL, LLC, a Delaware limited liability company AGREE CW, LLC, a Delaware limited liability company AGREE DANIEL MORGAN AVENUE SPARTANBURG SC LLC, a South Carolina limited liability company AGREE DAVENPORT IA, LLC, AGREE DES MOINES IA, LLC, a Delaware limited liability company |
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| By: | Agree Limited Partnership, |
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| By: | Agree Realty Corporation, |
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| Joel N. Agree |
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| Its: | President and Chief Executive Officer |
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| AGREE DONNA TX, LLC, a Delaware limited liability company AGREE DORAVILLE GA, LLC, a Delaware limited liability company AGREE DT JACKSONVILLE NC, LLC, a Delaware limited liability company AGREE EAST PALATKA, LLC, a Florida limited liability company AGREE EDMOND OK, LLC, a Delaware limited liability company AGREE EGG HARBOR NJ, LLC, a Delaware limited liablity company AGREE EVERGREEN CO, LLC, a Delaware limited liability company AGREE FACILITY NO. I, L.L.C., a Delaware limited liability company AGREE FARMINGTON NM, LLC, a Delaware limited liability company AGREE FOREST MS LLC, a Mississippi limited liability company AGREE FOREST VA LLC, a Virginia limited liability company AGREE FORT MILL SC, LLC, a South Carolina limited liability company AGREE FORT WORTH TX, LLC, a Delaware limited liability company AGREE FUQUAY-VARINA, LLC, a North Carolina limited liability company AGREE GRAND CHUTE WI LLC, a Delaware limited liability company AGREE GRAND FORKS, LLC, a North Dakota limited liability company AGREE GRANDVIEW HEIGHTS OH, LLC, a Delaware limited liability company AGREE HARLINGEN LLC, a Texas limited liability company |
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| By: | Agree Limited Partnership, |
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| a Delaware limited partnership |
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| Its: | Sole Member |
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| By: | Agree Realty Corporation, |
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| a Maryland corporation |
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| Joel N. Agree |
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| Its: | President and Chief Executive Officer |
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| AGREE HAZARD KY, LLC, a Delaware limited liability company AGREE HOLLY SPRINGS MS, LLC, a Delaware limited liability company AGREE HOPKINSVILLE KY, LLC, a Delaware limited liability company AGREE IL & VA, LLC, a Delaware limited liability company AGREE INDIANAPOLIS GLENDALE LLC, a Delaware limited liability company AGREE INDIANAPOLIS IN II, LLC, a Delaware limited liability company AGREE JACKSON MS, LLC, a Delaware limited liability company AGREE JACKSONVILLE NC, LLC, a North Carolina limited liability company AGREE JOHNSTOWN, LLC, an Ohio limited liability company AGREE JOPLIN MO LLC, a Missouri limited liability company AGREE JUNCTION CITY KS LLC, a Delaware limited liability company AGREE K&G JOPLIN MO, LLC, a Delaware limited liability company AGREE K&G OK, LLC, a Delaware limited liability company AGREE KIRKLAND WA, LLC, a Delaware limited liability company AGREE LAKE IN THE HILLS, LLC, an Illinois limited liability company AGREE LAKE ZURICH IL, LLC, an Illinois limited liability company AGREE LEBANON VA, LLC, a Virginia limited liability company AGREE LEJUNE SPRINGFIELD IL, LLC, an Illinois limited liability company |
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| By: | Agree Limited Partnership, |
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| a Delaware limited partnership |
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| Its: | Sole Member |
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| By: | Agree Realty Corporation, |
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| a Maryland corporation |
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| Joel N. Agree |
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| Its: | President and Chief Executive Officer |
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| AGREE LIGONIER PA LLC, a Pennsylvania limited liability company AGREE LOWELL AR, LLC, a Delaware limited liability company AGREE LYONS GA, LLC., a Georgia limited liability company AGREE M-59, LLC, a Michigan limited liability company AGREE MADISONVILLE TX LLC, a Texas limited liability company AGREE MAGNOLIA KNOXVILLE TN LLC, a Tennessee limited liability company AGREE MANASSAS VA, LLC, a Delaware limited liability company AGREE MANCHESTER LLC, a Connecticut limited liability company AGREE MANSFIELD, LLC, a Connecticut limited liability company AGREE MARSHALL MI OUTLOT, LLC, a Delaware limited liability company AGREE MCKINNEY TX LLC, a Texas limited liability company AGREE MCW, LLC, a Delaware limited liability company AGREE MEMPHIS GETWELL, LLC, a Tennessee limited liability company AGREE MERRITT ISLAND FL, LLC, a Delaware limited liability company AGREE MIDDLETOWN OH, LLC, a Delaware limited liability company AGREE MILLSBORO DE, LLC, a Delaware limited liability company AGREE MINNEAPOLIS CLINTON AVE L.L.C., a Minnesota limited liability company AGREE MINOT ND, LLC, a Delaware limited liability company |
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| By: | Agree Limited Partnership, |
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| a Delaware limited partnership |
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| Its: | Sole Member |
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| By: | Agree Realty Corporation, |
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| a Maryland corporation |
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| Joel N. Agree |
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| Its: | President and Chief Executive Officer |
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| AGREE MONTGOMERY AL LLC, an Alabama limited liability company AGREE MORROW GA, LLC, a Georgia limited liability company AGREE MT. DORA FL, LLC, a Delaware limited liability company AGREE NASHUA NH, LLC, a Delaware limited liability company AGREE NEOSHO MO, LLC, a Delaware limited liability company AGREE NEW LENOX, LLC, an Illinois limited liability company AGREE NEW LENOX 2, LLC, an Illinois limited liability company AGREE NORTH LAS VEGAS, LLC, a Nevada limited liability company AGREE NORTH MIAMI BEACH FL, LLC, a Delaware limited liability company AGREE NOVI MI LLC, a Michigan limited liability company AGREE ONAWAY MI, LLC, a Delaware limited liability company AGREE ORANGE & MCCOY, LLC, a Florida limited liability company AGREE OXFORD COMMONS AL, LLC, a Delaware limited liability company AGREE PALAFOX PENSACOLA FL, LLC, a Delaware limited liability company AGREE PENSACOLA LLC, a Florida limited liability company AGREE PENSACOLA NINE MILE LLC, a Florida limited liability company AGREE PINELLAS PARK, LLC, a Florida limited liability company AGREE PLAINFIELD LLC, a Michigan limited liability company |
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| By: | Agree Limited Partnership, |
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| a Delaware limited partnership |
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| Its: | Sole Member |
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| By: | Agree Realty Corporation, |
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| a Maryland corporation |
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| Joel N. Agree |
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| Its: | President and Chief Executive Officer |
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| AGREE POINCIANA, LLC, a Florida limited liability company AGREE PORT ORANGE FL, LLC, a Delaware limited liability company AGREE PORT ST. JOHN, LLC, a Delaware limited liability company AGREE PORTLAND ME, LLC, a Delaware limited liability company AGREE PORTLAND OR, LLC, a Delaware limited liability company AGREE PROVO UT, LLC, a Delaware limited liability company AGREE RAPID CITY SD, LLC, a South Dakota limited liability company AGREE RICHMOND RI, LLC, a Delaware limited liability company AGREE RICHMOND VA, LLC, a Delaware limited liability company AGREE RIVERSIDE IA, LLC, a Delaware limited liability company AGREE ROCHESTER NY LLC, a New York limited liability company AGREE ROCKFORD IL, LLC, a Delaware limited liability company AGREE RT AMITE LA, LLC, a Delaware limited liability company AGREE RT ARLINGTON TX, LLC, a Delaware limited liability company AGREE RT GULFPORT MS, LLC, a Delaware limited liability company AGREE RT JACKSON MS, LLC, a Delaware limited liability company AGREE RT PORT RICHEY FL, LLC, a Delaware limited liability company AGREE RT VILLA RICA GA, LLC, a Delaware limited liability company |
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| By: | Agree Limited Partnership, |
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| a Delaware limited partnership |
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| By: | Agree Realty Corporation, |
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| a Maryland corporation |
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| Joel N. Agree |
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| Its: | President and Chief Executive Officer |
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| AGREE SALEM OR LLC, a Delaware limited liability company AGREE SARASOTA FL, LLC, a Delaware limited liability company AGREE SOUTHFIELD, LLC, a Michigan limited liability company AGREE SPARTANBURG SC, LLC, a South Carolina limited liability company AGREE SPRINGFIELD IL, LLC, an Illinois limited liability company AGREE SPRINGFIELD MO, LLC, a Delaware limited liability company AGREE SPRINGFIELD OH LLC, a Delaware limited liability company AGREE ST PETERSBURG, LLC, a Florida limited liability company AGREE ST. AUGUSTINE SHORES, LLC, a Delaware limited liability company AGREE ST. JOSEPH MO, LLC, a Missouri limited liability company AGREE STATESVILLE NC, LLC, a Delaware limited liability company AGREE STATHAM GA, LLC, a Georgia limited liability company AGREE STORES, LLC, a Delaware limited liability company AGREE SUN VALLEY NV LLC, a Nevada limited liability company AGREE SUNNYVALE CA, LLC, a Delaware limited liability company AGREE TERRE HAUTE IN LLC, a Delaware limited liability company AGREE TK, LLC, a Delaware limited liability company AGREE TOPEKA KS LLC, a Delaware limited liability company |
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| By: | Agree Limited Partnership, |
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| a Delaware limited partnership |
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| a Maryland corporation |
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| Joel N. Agree |
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| Its: | President and Chief Executive Officer |
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| AGREE TRI-STATE LEASE, LLC, a Delaware limited liability company AGREE UPLAND CA, LLC, a Delaware limited liability company AGREE VENICE, LLC, a Florida limited liability company AGREE VERO BEACH FL, LLC, a Delaware limited liability company AGREE W 63RD CHICAGO IL, LLC, a Delaware limited liability company AGREE WHEATON IL, LLC, a Delaware limited liability company AGREE WHITTIER CA, LLC, a Delaware limited liability company AGREE WICHITA, LLC, a Kansas limited liability company AGREE WICHITA FALLS TX LLC, a Texas limited liability company AGREE WOODLAND PARK NJ, LLC, a Delaware limited liability company AGREE WOODSTOCK IL, LLC, a Delaware limited liability company INDIANAPOLIS STORE NO. 16 L.L.C., a Delaware limited liability company LUNACORP, LLC, a Delaware limited liability company MT. PLEASANT OUTLOT I, LLC, a Michigan limited liability company MT. PLEASANT SHOPPING CENTER, L.L.C., a Michigan limited liability company PHARM NASHVILLE IN, LLC, a Delaware limited liability company AGREE NAMPA ID, LLC, a Delaware limited liability company |
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| By: | Agree Limited Partnership, |
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| a Delaware limited partnership |
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| By: | Agree Realty Corporation, |
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| a Maryland corporation |
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| Joel N. Agree |
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| Its: | President and Chief Executive Officer |
SCHEDULE 1
SUBSIDIARY GUARANTORS
| Subsidiary | State of Formation |
| 1.Agree 6 LA & MS, LLC | Delaware |
| 2.Agree 1031, LLC | Delaware |
| 3.Agree 117 Mission, LLC | Michigan |
| 4.Agree 17-92, LLC | Florida |
| 5.Agree 2016, LLC | Delaware |
| 6.Agree Alcoa TN LLC | Tennessee |
| 7.Agree Allentown PA LLC | Pennsylvania |
| 8.Agree Altoona, PA, LLC | Delaware |
| 9.Agree Americus GA, LLC | Delaware |
| 10.Agree Anderson SC LLC | Delaware |
| 11.Agree Ann Arbor MI, LLC | Delaware |
| 12.Agree Ann Arbor State Street, LLC | Michigan |
| 13.Agree Antioch, LLC | Illinois |
| 14.Agree Apopka FL, LLC | Delaware |
| 15.Agree Appleton WI, LLC | Delaware |
| 16.Agree Archer Chicago IL, LLC | Delaware |
| 17.Agree Arlington TX LLC | Texas |
| 18.Agree Atchison, LLC | Kansas |
| 19.Agree Atlantic Beach, LLC | Delaware |
| 20.Agree Baltimore MD, LLC | Delaware |
| 21.Agree Baton Rouge LA LLC | Louisiana |
| 22.Agree Belton MO LLC | Delaware |
| 23.Agree Belvidere IL, LLC | Illinois |
| 24.Agree Berwyn IL LLC | Illinois |
| 25.Agree Bloomington MN, LLC | Delaware |
| 26.Agree Brenham TX, LLC | Delaware |
| 27.Agree Brighton, LLC | Delaware |
| 28.Agree Brooklyn OH LLC | Ohio |
| 29.Agree BT, LLC | Delaware |
| 30.Agree Buffalo Center IA, LLC | Delaware |
| 31.Agree Burlington, LLC | Delaware |
| 32.Agree Cannon Station LLC | Delaware |
| 33.Agree Carlinville IL, LLC | Delaware |
| 34.Agree Cedar Park TX, LLC | Delaware |
| 35.Agree Center Point Birmingham AL LLC | Alabama |
| 36.Agree Chandler, LLC | Arizona |
| 37.Agree Charlotte Poplar, LLC | North Carolina |
| Subsidiary | State of Formation |
| 38.Agree Chicago Kedzie, LLC | Illinois |
| 39.Agree Cochran GA, LLC | Georgia |
| 40.Agree Columbia SC, LLC | Delaware |
| 41.Agree Columbus OH, LLC | Delaware |
| 42.Agree Concord, LLC | North Carolina |
| 43.Agree Crystal River FL, LLC | Delaware |
| 44.Agree CW, LLC | Delaware |
| 45.Agree Daniel Morgan Avenue Spartanburg SC LLC | South Carolina |
| 46.Agree Davenport IA, LLC | Delaware |
| 47.Agree Des Moines IA, LLC | Delaware |
| 48.Agree Donna TX, LLC | Delaware |
| 49.Agree Doraville GA, LLC | Delaware |
| 50.Agree DT Jacksonville NC, LLC | Delaware |
| 51.Agree East Palatka, LLC | Florida |
| 52.Agree Edmond OK, LLC | Delaware |
| 53.Agree Egg Harbor NJ, LLC | Delaware |
| 54.Agree Evergreen CO, LLC | Delaware |
| 55.Agree Facility No. I, L.L.C. | Delaware |
| 56.Agree Farmington NM, LLC | Delaware |
| 57.Agree Forest MS LLC | Mississippi |
| 58.Agree Forest VA LLC | Virginia |
| 59.Agree Fort Mill SC, LLC | South Carolina |
| 60.Agree Fort Worth TX, LLC | Delaware |
| 61.Agree Fuquay-Varina, LLC | North Carolina |
| 62.Agree Grand Chute WI LLC | Delaware |
| 63.Agree Grand Forks, LLC | North Dakota |
| 64.Agree Grandview Heights OH, LLC | Delaware |
| 65.Agree Harlingen LLC | Texas |
| 66.Agree Hazard KY, LLC | Delaware |
| 67.Agree Holly Springs MS, LLC | Delaware |
| 68.Agree Hopkinsville KY, LLC | Delaware |
| 69.Agree IL & VA, LLC | Delaware |
| 70.Agree Indianapolis Glendale LLC | Delaware |
| 71.Agree Indianapolis IN II, LLC | Delaware |
| 72.Agree Jackson MS, LLC | Delaware |
| 73.Agree Jacksonville NC, LLC | North Carolina |
| 74.Agree Johnstown, LLC | Ohio |
| 75.Agree Joplin MO LLC | Missouri |
| 76.Agree Junction City KS LLC | Delaware |
| 77.Agree K&G Joplin MO, LLC | Delaware |
| Subsidiary | State of Formation |
| 78.Agree K&G OK, LLC | Delaware |
| 79.Agree Kirkland WA, LLC | Delaware |
| 80.Agree Lake in the Hills, LLC | Illinois |
| 81.Agree Lake Zurich IL, LLC | Illinois |
| 82.Agree Lebanon VA, LLC | Virginia |
| 83.Agree Lejune Springfield IL, LLC | Illinois |
| 84.Agree Ligonier PA LLC | Pennsylvania |
| 85.Agree Lowell AR, LLC | Delaware |
| 86.Agree Lyons GA, LLC. | Georgia |
| 87.Agree M-59, LLC | Michigan |
| 88.Agree Madisonville TX LLC | Texas |
| 89.Agree Magnolia Knoxville TN LLC | Tennessee |
| 90.Agree Manassas VA, LLC | Delaware |
| 91.Agree Manchester LLC | Connecticut |
| 92.Agree Mansfield, LLC | Connecticut |
| 93.Agree Marshall MI Outlot, LLC | Delaware |
| 94.Agree McKinney TX LLC | Texas |
| 95.Agree MCW, LLC | Delaware |
| 96.Agree Memphis Getwell, LLC | Tennessee |
| 97.Agree Merritt Island FL, LLC | Delaware |
| 98.Agree Middletown OH, LLC | Delaware |
| 99.Agree Millsboro DE, LLC | Delaware |
| 100.Agree Minneapolis Clinton Ave L.L.C. | Minnesota |
| 101.Agree Minot ND, LLC | Delaware |
| 102.Agree Montgomery AL LLC | Alabama |
| 103.Agree Morrow GA, LLC | Georgia |
| 104.Agree Mt. Dora FL, LLC | Delaware |
| 105.Agree Nampa ID, LLC | Delaware |
| 106.Agree Nashua NH, LLC | Delaware |
| 107.Agree Neosho MO, LLC | Delaware |
| 108.Agree New Lenox, LLC | Illinois |
| 109.Agree New Lenox 2, LLC | Illinois |
| 110.Agree North Las Vegas, LLC | Nevada |
| 111.Agree North Miami Beach FL, LLC | Delaware |
| 112.Agree Novi MI LLC | Michigan |
| 113.Agree Onaway MI, LLC | Delaware |
| 114.Agree Orange & McCoy, LLC | Florida |
| 115.Agree Oxford Commons AL, LLC | Delaware |
| 116.Agree Palafox Pensacola FL, LLC | Delaware |
| 117.Agree Pensacola LLC | Florida |
| Subsidiary | State of Formation |
| 118.Agree Pensacola Nine Mile LLC | Florida |
| 119.Agree Pinellas Park, LLC | Florida |
| 120.Agree Plainfield LLC | Michigan |
| 121.Agree Poinciana, LLC | Florida |
| 122.Agree Port Orange FL, LLC | Delaware |
| 123.Agree Port St. John, LLC | Delaware |
| 124.Agree Portland ME, LLC | Delaware |
| 125.Agree Portland OR, LLC | Delaware |
| 126.Agree Provo UT, LLC | Delaware |
| 127.Agree Rapid City SD, LLC | South Dakota |
| 128.Agree Richmond RI, LLC | Delaware |
| 129.Agree Richmond VA, LLC | Delaware |
| 130.Agree Riverside IA, LLC | Delaware |
| 131.Agree Rochester NY LLC | New York |
| 132.Agree Rockford IL, LLC | Delaware |
| 133.Agree RT Amite LA, LLC | Delaware |
| 134.Agree RT Arlington TX, LLC | Delaware |
| 135.Agree RT Gulfport MS, LLC | Delaware |
| 136.Agree RT Jackson MS, LLC | Delaware |
| 137.Agree RT Port Richey FL, LLC | Delaware |
| 138.Agree RT Villa Rica GA, LLC | Delaware |
| 139.Agree Salem OR LLC | Delaware |
| 140.Agree Sarasota FL, LLC | Delaware |
| 141.Agree Southfield, LLC | Michigan |
| 142.Agree Spartanburg SC, LLC | South Carolina |
| 143.Agree Springfield IL, LLC | Illinois |
| 144.Agree Springfield MO, LLC | Delaware |
| 145.Agree Springfield OH LLC | Delaware |
| 146.Agree St Petersburg, LLC | Florida |
| 147.Agree St. Augustine Shores, LLC | Delaware |
| 148.Agree St. Joseph MO, LLC | Missouri |
| 149.Agree Statesville NC, LLC | Delaware |
| 150.Agree Statham GA, LLC | Georgia |
| 151.Agree Stores, LLC | Delaware |
| 152.Agree Sun Valley NV LLC | Nevada |
| 153.Agree Sunnyvale CA, LLC | Delaware |
| 154.Agree Terre Haute IN LLC | Delaware |
| 155.Agree TK, LLC | Delaware |
| 156.Agree Topeka KS LLC | Delaware |
| 157.Agree Tri-State Lease, LLC | Delaware |
| Subsidiary | State of Formation |
| 158.Agree Upland CA, LLC | Delaware |
| 159.Agree Venice, LLC | Florida |
| 160.Agree Vero Beach FL, LLC | Delaware |
| 161.Agree W 63rd Chicago IL, LLC | Delaware |
| 162.Agree Wheaton IL, LLC | Delaware |
| 163.Agree Whittier CA, LLC | Delaware |
| 164.Agree Wichita, LLC | Kansas |
| 165.Agree Wichita Falls TX LLC | Texas |
| 166.Agree Woodland Park NJ, LLC | Delaware |
| 167.Agree Woodstock IL, LLC | Delaware |
| 168.Indianapolis Store No. 16 L.L.C. | Delaware |
| 169.Lunacorp, LLC | Delaware |
| 170.Mt. Pleasant Outlot I, LLC | Michigan |
| 171.Mt. Pleasant Shopping Center, L.L.C. | Michigan |
| 172.Pharm Nashville IN, LLC | Delaware |
EXHIBIT A
COUNTERPART TO GUARANTY
In witness whereof, the undersigned Additional Guarantor has caused this Guaranty to be executed and delivered by its officer thereunto duly authorized as of _____________________________.
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EXHIBIT B
FORM OF RELEASE OF GUARANTOR
In witness whereof, the undersigned Administrative Agent (as defined in the Guaranty defined below), on behalf of the Credit Parties (as defined in the Guaranty), hereby releases and discharges [NAME OF RELEASED GUARANTOR] (the “Released Guarantor”) from any and all obligations and liabilities of the Released Guarantor to the Credit Parties under that certain Guaranty dated as of December 27, 2018 (the “Guaranty”) executed by Agree Realty Corporation, a Maryland corporation, and the Subsidiary Guarantors (as defined in the Guaranty) described therein in favor of the Administrative Agent for the benefit of the Credit Parties.
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: __________________________
Name: _______________________
Title: ________________________
