Amendment No. 5 to the At Market Issuance Sales Agreement, dated September 5, 2023, by and among Hannon Armstrong Sustainable Infrastructure Capital, Inc., B. Riley Securities, Inc., Barclays Capital Inc., BofA Securities, Inc., Credit Suisse Securities (USA) LLC, Goldman Sachs & Co. LLC, KeyBanc Capital Markets Inc., Jefferies LLC, J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, Nomura Securities International, Inc., Truist Securities, Inc. and Wells Fargo Securities, LLC

Contract Categories: Business Finance - Credit Agreements
EX-1.6 2 d437325dex16.htm EX-1.6 EX-1.6

Exhibit 1.6

HANNON ARMSTRONG SUSTAINABLE INFRASTRUCTURE CAPITAL, INC.

Amendment No. 5 to the At Market Issuance Sales Agreement

September 5, 2023

 

B. Riley Securities, Inc.

299 Park Avenue, 21st Floor

New York, New York 10171

  

J.P. Morgan Securities LLC

383 Madison Avenue

New York, New York 10179

Barclays Capital Inc.

745 Seventh Avenue

New York, New York, 10019

  

KeyBanc Capital Markets Inc.

127 Public Square, 7th Floor

Cleveland, Ohio 44114

BofA Securities, Inc.

One Bryant Park

New York, New York 10036

  

Morgan Stanley & Co. LLC

1585 Broadway

New York, NY 10036

Credit Suisse Securities (USA) LLC

Eleven Madison Avenue

New York, New York 10010-3629

  

Nomura Securities International, Inc.

Worldwide Plaza

309 West 49th Street

New York, New York 10019

Goldman Sachs & Co. LLC

200 West Street

New York, New York 10282

  

Truist Securities, Inc.

3333 Peachtree Road NE, 11th Floor

Atlanta, Georgia 30326

Jefferies LLC

520 Madison Avenue

New York, New York 10022

  

Wells Fargo Securities, LLC

500 West 33rd Street

New York, New York 10001

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 Hannon Armstrong Sustainable Infrastructure Capital, Inc., a Maryland corporation (the “Company”), and B. Riley Securities, Inc. (formerly B. Riley FBR, Inc.), Barclays Capital Inc., BofA Securities, Inc., Credit Suisse Securities (USA) LLC, Goldman Sachs & Co. LLC, Jefferies LLC, J.P. Morgan Securities LLC, KeyBanc Capital Markets Inc., Morgan Stanley & Co. LLC, Nomura Securities International, Inc., Truist Securities, Inc. and Wells 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.

 

- 1 -


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., www.docusign.com) 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,
HANNON ARMSTRONG SUSTAINABLE
INFRASTRUCTURE CAPITAL, INC.
By:  

/s/ Jeffrey A. Lipson

  Name: Jeffrey A. Lipson
  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:

 

B. RILEY SECURITIES, INC.
By:  

/s/ Patrice McNicoll

  Name: Patrice McNicoll
  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/ Robert Stowe

  Name: Robert Stowe
  Title: Managing Director

[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]


BOFA SECURITIES, INC.
By:  

/s/ Ryan Willingham

  Name: Ryan Willingham
  Title: Managing Director

[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]


CREDIT SUISSE SECURITIES (USA) LLC
By:  

/s/ George Matsuzaka

  Name: George Matsuzaka
  Title: Managing Director

[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]


GOLDMAN SACHS & CO. LLC
By:  

/s/ Goldman Sachs & Co. LLC

  Name: Charles Park
  Title: Managing Director

[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]


JEFFERIES LLC
By:  

/s/ Donald Lynaugh

  Name: Donald Lynaugh
  Title: Managing Director

[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]


J.P. MORGAN SECURITIES LLC
By:  

/s/ Sanjeet Dewal

  Name: Sanjeet Dewal
  Title: Managing Director

[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]


KEYBANC CAPITAL MARKETS INC.
By:  

/s/ Christopher Malik

  Name: Christopher Malik
  Title: Managing Director, Equity Capital Markets

[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]


MORGAN STANLEY & CO. LLC
By:  

/s/ James Scilacci

  Name: James Scilacci
  Title: Executive Director

[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]


NOMURA SECURITIES INTERNATIONAL, INC.
By:  

/s/ Jason Eisenhauer

  Name: Jason Eisenhauer
  Title: Managing Director

[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]


TRUIST SECURITIES, INC.
By:  

/s/ Michael Davis

  Name: Michael Davis
  Title: Managing Director

[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]


WELLS FARGO SECURITIES, LLC
By:  

/s/ Jaime Cohen

  Name: Jaime Cohen
  Title: Managing Director

[Signature Page to Amendment No. 5 to the At Market Issuance Sales Agreement]