HANNON ARMSTRONG SUSTAINABLE INFRASTRUCTURE CAPITAL, INC. Amendment No. 5 to the At Market Issuance Sales Agreement
Exhibit 1.6
XXXXXX XXXXXXXXX SUSTAINABLE INFRASTRUCTURE CAPITAL, INC.
Amendment No. 5 to the At Market Issuance Sales Agreement
September 5, 2023
| X. Xxxxx Securities, Inc. 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
X.X. Xxxxxx Securities LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 | |
| Barclays Capital Inc. 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx, 00000 |
KeyBanc Capital Markets Inc. 000 Xxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxxxx, Xxxx 00000 | |
| BofA Securities, Inc. One Bryant Park |
Xxxxxx Xxxxxxx & Co. LLC 0000 Xxxxxxxx Xxx Xxxx, XX 00000 | |
| Credit Suisse Securities (USA) LLC Xxxxxx Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 |
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 | |
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, and as further amended by Amendment No. 4 to the At Market Issuance Sales Agreement, dated May 10, 2023 (as amended, the “Agreement”), among Xxxxxx Xxxxxxxxx Sustainable Infrastructure Capital, Inc., a Maryland corporation (the “Company”), and X. Xxxxx Securities, Inc. (formerly X. Xxxxx FBR, Inc.), Barclays Capital Inc., BofA Securities, Inc., Credit Suisse Securities (USA) LLC, 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, the parties hereto wish to amend the Agreement through this Amendment No. 5 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) | Section 1(xxxv) (REIT Status): |
(i) Section 1(xxxv) of the Agreement is hereby amended and restated as follows:
REIT Status. Commencing with its taxable year ended December 31, 2013, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a “real estate investment trust” (a “REIT”) under Sections 856 through 860 of 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 operation as described in the General Disclosure Package and the Prospectus will enable the Company to meet the requirements for qualification and taxation as a REIT under the Code with respect to the Company’s taxable year ending December 31, 2023. The Company currently intends to continue to operate in a manner which would permit it to qualify and be taxed as a REIT under the Code for the taxable year ending on December 31, 2023. All statements regarding the Company’s organization and proposed method of operation set forth in the Prospectus and the General Disclosure Package are true, correct and complete in all material respects.
| (b) | Section 3(v) (REIT Status): |
(i) Section 3(v) of the Agreement is hereby amended and restated as follows:
REIT Status. The Company will use its best efforts to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2023.
SECTION 4. 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 5. 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.
SECTION 6. 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 7. 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]
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, | ||
| XXXXXX XXXXXXXXX SUSTAINABLE INFRASTRUCTURE CAPITAL, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | ||
| Title: President and Chief Executive Officer | ||
[Signature Page to Amendment No. 5 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: SMD & Co-Head of Investment Banking | ||
[Signature Page to Amendment No. 5 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. 5 to the At Market Issuance Sales Agreement]
| BOFA SECURITIES, INC. | ||
| By: | /s/ Xxxx Xxxxxxxxxx | |
| Name: Xxxx Xxxxxxxxxx | ||
| Title: Managing Director | ||
[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]
| CREDIT SUISSE SECURITIES (USA) LLC | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Managing Director | ||
[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]
| XXXXXXX XXXXX & CO. LLC | ||
| By: | /s/ Xxxxxxx Xxxxx & Co. LLC | |
| Name: Xxxxxxx Xxxx | ||
| Title: Managing Director | ||
[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]
| XXXXXXXXX LLC | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | ||
| Title: Managing Director | ||
[Signature Page to Amendment No. 5 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. 5 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. 5 to the At Market Issuance Sales Agreement]
| XXXXXX XXXXXXX & CO. LLC | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: Xxxxx Xxxxxxxx | ||
| Title: Executive Director | ||
[Signature Page to Amendment No. 5 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. 5 to the At Market Issuance Sales Agreement]
| TRUIST SECURITIES, INC. | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxx | ||
| Title: Managing Director | ||
[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]
| XXXXX FARGO SECURITIES, LLC | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | ||
| Title: Managing Director | ||
[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]
