HA SUSTAINABLE INFRASTRUCTURE CAPITAL, INC. Amendment No. 6 to the At Market Issuance Sales Agreement
Exhibit 1.7
HA SUSTAINABLE INFRASTRUCTURE CAPITAL, INC.
Amendment No. 6 to the At Market Issuance Sales Agreement
July 3, 2024
| X. Xxxxx Securities, Inc. 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
KeyBanc Capital Markets Inc. 000 Xxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxxxx, Xxxx 00000 | |
| Barclays Capital Inc. 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx, 00000 |
Xxxxxx Xxxxxxx & Co. LLC 0000 Xxxxxxxx Xxx Xxxx, XX 00000 | |
| BofA Securities, Inc. One Bryant Park |
Nomura Securities International, Inc. Worldwide Plaza 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 | |
| Xxxxxxx Xxxxx & Co. LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Truist Securities, Inc. 0000 Xxxxxxxxx Xxxx XX, 00xx Xxxxx Xxxxxxx, Xxxxxxx 00000 | |
| Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Xxxxx Fargo Securities, LLC 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 | |
| X.X. Xxxxxx Securities LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
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Ladies and Gentlemen:
Reference is made to the At Market Issuance Sales Agreement, dated May 13, 2020, as amended by Amendment No. 1 to the At Market Issuance Sales Agreement, dated February 26, 2021, as further amended by Amendment No. 2 to the At Market Issuance Sales Agreement, dated March 1, 2022, as further amended by Amendment No. 3 to the At Market Issuance Sales Agreement, dated February 22, 2023, as further amended by Amendment No. 4 to the At Market Issuance Sales Agreement, dated May 10, 2023, and as further amended by Amendment No. 5 to the At Market Issuance Sales Agreement, dated September 5, 2023 (as amended, the “Agreement”), among HA Sustainable Infrastructure Capital, Inc., a Delaware corporation (formerly incorporated in Maryland as Xxxxxx Xxxxxxxxx Sustainable Infrastructure Capital, Inc.) (the “Company”), and X. Xxxxx Securities, Inc. (formerly X. Xxxxx FBR, Inc.), Barclays Capital Inc., BofA Securities, Inc., Xxxxxxx Xxxxx & Co. LLC, Xxxxxxxxx LLC, X.X. Xxxxxx Securities LLC, KeyBanc Capital Markets Inc., Xxxxxx Xxxxxxx & Co. LLC, Nomura Securities International, Inc., Truist Securities, Inc. and Xxxxx Fargo Securities, LLC, as an agent and/or principal (each, an “Agent” or collectively, the “Agents”), with respect to the issuance and sale from time to time by the Company of shares of Common Stock having an aggregate gross sales price not to exceed $500,000,000 on the terms set forth in the Agreement.
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In connection with the foregoing and in light of the Company’s conversion from a Maryland corporation to a Delaware corporation (the “Reincorporation”), the parties hereto wish to amend the Agreement through this Amendment No. 6 to the At Market Issuance Sales Agreement (this “Amendment”) to make certain changes to the Agreement with effect on and after the date hereof (the “Effective Date”).
SECTION 1. Definitions. Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings assigned thereto in the Agreement.
SECTION 2. Amendments. The parties hereto agree, from and after the Effective Date, that:
(a) Addressees:
| (i) | The list of Agents on page 1 of the Agreement and their respective addressess are amended and restated as follows: |
| X. Xxxxx Securities, Inc. 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
KeyBanc Capital Markets Inc. 000 Xxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxxxx, Xxxx 00000 | |
| Barclays Capital Inc. 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx, 00000 |
Xxxxxx Xxxxxxx & Co. LLC 0000 Xxxxxxxx Xxx Xxxx, XX 00000 | |
| BofA Securities, Inc. One Bryant Park |
Nomura Securities International, Inc. Worldwide Plaza 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 | |
| Xxxxxxx Xxxxx & Co. LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Truist Securities, Inc. 0000 Xxxxxxxxx Xxxx XX, 00xx Xxxxx Xxxxxxx, Xxxxxxx 00000 | |
| Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Xxxxx Fargo Securities, LLC 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 | |
| X.X. Xxxxxx Securities LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
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(b) Introductory Paragraph:
| (i) | The first sentence of the first paragraph of the Agreement is amended and restated as follows: |
HA Sustainable Infrastructure Capital, Inc., a Delaware corporation (formerly incorporated in Maryland as Xxxxxx Xxxxxxxxx Sustainable Infrastructure Capital, Inc.) (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell from time to time to or through either of X. Xxxxx Securities, Inc., Barclays Capital Inc., BofA Securities, Inc., Xxxxxxx Xxxxx & Co. LLC, Xxxxxxxxx LLC, X.X. Xxxxxx Securities LLC, KeyBanc Capital Markets Inc., Xxxxxx Xxxxxxx & Co. LLC, Nomura Securities International, Inc., Truist Securities, Inc. and Xxxxx Fargo Securities, LLC as sales agent and/or principal (each, an “Agent” and together, the “Agents”), shares (the “Shares”) of the Company’s common stock, $0.01 par value (the “Common Stock”), having an aggregate gross sales price not to exceed $500,000,000, on the terms set forth in this At Market Issuance Sales Agreement, as amended.
| (ii) | For the avoidance of doubt, the amounts sold counted against the aggregate gross sales price shall include amounts sold pursuant to the Agreement after September 5, 2023. |
(c) Section 1 (Representations and Warranties):
| (i) | The representations and warranties set forth in Section 1 of the Agreement are hereby updated to give effect to the Reincorporation. |
(d) Section 1(ix) (Good Standing of the Company):
| (i) | The reference to “Maryland” in Section 1(ix) of the Agreement is hereby replaced with “Delaware”. |
(e) Section 1(xxxv) (REIT Status):
| (i) | Section 1(xxxv) of the Agreement is hereby removed in its entirety. |
(f) Section 2(h) (Sale and Delivery of Shares):
| (i) | The reference to “second business day” in the first sentence of Section 2(h) is hereby replaced with “first business day”. |
(g) Section 3(j) (Notice of Certain Actions):
| (i) | The reference to “Article VII” in Section 2(j) is hereby replaced with “Article X”. |
(h) Section 3(v) (REIT Status):
| (i) | Section 3(v) of the Agreement is hereby removed in its entirety. |
(i) Section 5(c) (Opinion of Counsel to the Company):
| (i) | Section 5(c) of the Agreement is hereby amended and restated as follows: |
Opinion of Counsel to the Company. On the date of this At Market Issuance Sales Agreement, the Agents shall have received the favorable written opinion or opinions of (i) Clifford Chance US LLP, counsel to the Company, dated such date, to the effect set forth in Exhibit A-1 hereto and (ii) the General Counsel or Deputy General Counsel of the Company, to the effect set forth in Exhibit A-2 hereto and to such further effect as the Agents may reasonably request.
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(j) Section 10 (Notices):
| (i) | Section 10 of the Agreement is hereby amended and restated as follows: |
Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Agents shall be directed to X. Xxxxx Securities, Inc. at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, to Barclays Capital Inc. at 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Syndicate Registration, (fax number: 000-000 0000), to BofA Securities, Inc. at One Bryant Park, New York, NY 10036, Attention: DG ATM Execution (email: xx.xxx_xxxxxxxxx@xxxx.xxx), to Xxxxxxx Xxxxx & Co. LLC at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile: (000) 000-0000, Attention: Registration Department, to Xxxxxxxxx LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, with a copy to XxxxXxXxxxx@xxxxxxxxx.xxx, to X.X. Xxxxxx Securities LLC at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxx, Facsimile: (000) 000-0000, Email: xxxxxxx.x.xxxxx@xxxxxxxx.xxx, to KeyBanc Capital Markets Inc. at 000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx, XX 00000, Attention: Xxxxx Xxxxx (xxxxxx@xxx.xxx), Xxxxxxx Xxxxx (xxxxxxx.x.xxxxx@xxx.xxx) and Xxxx Xxxxxxxxx (xxxx.xxxxxxxxx@xxx.xxx), Telephone: (000) 000-0000, to Xxxxxx Xxxxxxx & Co. LLC at 0000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Desk, with a copy to the Legal Department, to Nomura Securities International, Inc. at Worldwide Plaza, 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Capital Markets, Americas, email: XxxxxxXXXXxxxxxxxx@xxxxxx.xxx, Fax: (000) 000-0000 with a copy to the Head of IBD Legal, Fax: (000) 000-0000, to Truist Securities, Inc. at 0000 Xxxxxxxxx Xxxx XX, 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Equity Capital Markets (email: xx.xxx.xxxxxxxx@xxxxxx.xxx) and to Xxxxx Fargo Securities, LLC at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Equity Syndicate Department (fax no: (000) 000-0000) or email a request to xxxxxxxxxxxxxxx@xxxxxxxxxx.xxx; and notices to the Company shall be directed to it at 0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 (facsimile: (000) 000-0000), attention of Office of the General Counsel.
(k) Exhibit A-2 and Exhibit A-3:
| (i) | Exhibit A-2 is hereby removed in its entirety and Exhibit A-3 is hereby renamed as Exhibit A-2. |
SECTION 3. No Further Amendment. The Agreement, as amended by the Amendment, is in all respects ratified and confirmed and all the terms, conditions, and provisions thereof shall remain in full force and effect. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or condition of the Agreement or any of the documents referred to therein.
SECTION 4. Governing Law. This Amendment and any claim, counterclaim, controversy or dispute of any kind or nature whatsoever arising out of or in any way relating to this Amendment, directly or indirectly, shall be governed by and construed in accordance with the laws of the State of New York.
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SECTION 5. Counterparts. This Amendment may be signed in counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., xxx.xxxxxxxx.xxx) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
SECTION 6. Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Amendment.
[Signature pages follow]
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If the foregoing correctly sets forth the understanding between the Company and each of the Agents, please so indicate in the space provided below for that purpose, whereupon this Amendment and your acceptance shall constitute a binding agreement among the Company and each of the Agents.
| Very truly yours, | ||
| HA SUSTAINABLE INFRASTRUCTURE CAPITAL, INC. | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | ||
| Title: Executive Vice President and Chief Financial Officer | ||
[Signature Page to Amendment No. 6 to the At Market Issuance Sales Agreement]
Accepted and agreed as of the date first above written:
| X. XXXXX SECURITIES, INC. | ||
| By: | /s/ Xxxxxxx XxXxxxxx | |
| Name: Xxxxxxx XxXxxxxx | ||
| Title: Co-Head of Investment Banking | ||
[Signature Page to Amendment No. 6 to the At Market Issuance Sales Agreement]
| BARCLAYS CAPITAL INC. | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | ||
| Title: Managing Director | ||
[Signature Page to Amendment No. 6 to the At Market Issuance Sales Agreement]
| BOFA SECURITIES, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | ||
| Title: Managing Director | ||
[Signature Page to Amendment No. 6 to the At Market Issuance Sales Agreement]
| XXXXXXX XXXXX & CO. LLC | ||
| By: | /s/ Charles Park | |
| Name: Charles Park | ||
| Title: Manging Director | ||
[Signature Page to Amendment No. 6 to the At Market Issuance Sales Agreement]
| JEFFERIES LLC | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | ||
| Title: Manging Director | ||
[Signature Page to Amendment No. 6 to the At Market Issuance Sales Agreement]
| X.X. XXXXXX SECURITIES LLC | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxx | ||
| Title: Managing Director | ||
[Signature Page to Amendment No. 6 to the At Market Issuance Sales Agreement]
| KEYBANC CAPITAL MARKETS INC. | ||
| By: | /s/ Xxxxxxxxxxx Xxxxx | |
| Name: Xxxxxxxxxxx Xxxxx | ||
| Title: Managing Director, Equity Capital Markets | ||
[Signature Page to Amendment No. 6 to the At Market Issuance Sales Agreement]
| XXXXXX XXXXXXX & CO. LLC | ||
| By: | /s/ Xxxxxxxx Xxxxxxxxx | |
| Name: Xxxxxxxx Xxxxxxxxx | ||
| Title: Vice President | ||
[Signature Page to Amendment No. 6 to the At Market Issuance Sales Agreement]
| NOMURA SECURITIES INTERNATIONAL, INC. | ||
| By: | /s/ Xxxxx Xxxxxxxxxx | |
| Name: Xxxxx Xxxxxxxxxx | ||
| Title: Managing Director | ||
[Signature Page to Amendment No. 6 to the At Market Issuance Sales Agreement]
| TRUIST SECURITIES, INC. | ||
| By: | /s/ Xxxxxxxx Xxxxxx | |
| Name: Xxxxxxxx Xxxxxx | ||
| Title: Director | ||
[Signature Page to Amendment No. 6 to the At Market Issuance Sales Agreement]
| XXXXX FARGO SECURITIES, LLC | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Managing Director | ||
[Signature Page to Amendment No. 6 to the At Market Issuance Sales Agreement]
