SUBSCRIPTION AGREEMENT
| To: | Xxxxxxx Xxxxx Real Estate Finance Trust Inc 000 Xxxx Xxxxxx Xxx Xxxx, XX 00000 | |||||||
| Re: | Subscription Agreement for the Purchase of Non-Voting Common Shares (this “Subscription Agreement”) | |||||||
GS Fund Holdings, L.L.C., a Delaware limited liability company (“GSFH”), or any entity that is controlled by, controls or is under common control with GSFH (collectively, “Xxxxxxx Xxxxx”), as of the 4th day of October, 2024, agrees to purchase a number of Non-Voting Common Shares (the “Securities”) of Xxxxxxx Xxxxx Real Estate Finance Trust Inc, a Maryland corporation (the “Company”), in an aggregate amount equal to $100,000,000 (the “Commitment”) pursuant to the terms and conditions of this Subscription Agreement.
Xxxxxxx Xxxxx acknowledges that the Company will not register the issuance of the Securities under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws (the “State Acts”) in reliance upon exemptions from registration contained in the Securities Act and the State Acts, and that the Company relies upon these exemptions, in part, because of Xxxxxxx Xxxxx’ representations, warranties and agreements contained in this Subscription Agreement.
The parties hereto represent, warrant and agree as follows:
1. Subject to the provisions below, Xxxxxxx Xxxxx hereby agrees to purchase from the Company a number of Non-Voting Common Shares in an aggregate amount equal to $100,000,000, as follows: (i) $25,000,000 on the date of the initial closing (the “Initial Closing”) of the Company’s continuous private offering pursuant to the Company’s Private Placement Memorandum (as amended and/or supplemented from time to time, the “Private Placement Memorandum”); (ii) $25,000,000 upon the first date that the Company’s net asset value (“NAV”) reaches $500,000,000; (iii) $25,000,000 upon the first date that the Company’s NAV reaches $750,000,000; and (iv) $25,000,000 upon the first date that the Company’s NAV reaches $1,000,000,000.
a. The Company shall provide at least five (5) business days, or such shorter period upon the consent of Xxxxxxx Xxxxx, prior notice (each, a “Contribution Notice”) when the Company requires a capital contribution from Xxxxxxx Xxxxx pursuant to this Subscription Agreement (a “Capital Contribution”). The Contribution Notice shall include the amount of the Capital Contribution (the “Capital Contribution Amount”) and the date by which such amount shall be paid to the Company (the “Contribution Date”).
x. Xxxxxxx Xxxxx shall make all Capital Contributions pursuant to the terms of this Subscription Agreement in U.S. dollars by wire transfer of immediately available funds on the applicable Contribution Date.
c. In exchange for each Capital Contribution pursuant to the terms of this Subscription Agreement, the Company shall issue to Xxxxxxx Xxxxx a number of Non-Voting Common Shares equal to the applicable Capital Contribution Amount divided by a share price equal to either (i) if the Company has not yet calculated an NAV per Non-Voting Common Share, a per share price equal to $25.00 or (ii) after the date on which the Company calculates an NAV per Non-Voting Common Share, a per share price equal to the most recently determined NAV per Non-Voting Common Share immediately prior to the Contribution Date, as determined pursuant to the valuation procedures described in the Private Placement Memorandum.
2. Xxxxxxx Xxxxx hereby represents and warrants to the Company as follows:
x. Xxxxxxx Xxxxx has carefully read this Subscription Agreement, will complete the REIT Questionnaire attached as Appendix A hereto, and, to the extent it believes necessary, has discussed with its counsel the representations, warranties and agreements that it makes by signing this Subscription Agreement and acknowledges and agrees to all of the limitations set forth herein relating to the repurchase by the Company of the Securities.
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x. Xxxxxxx Xxxxx is a legal entity duly organized, validly existing and in good standing under the laws of the state, commonwealth or other jurisdiction wherein it was organized or established. Xxxxxxx Xxxxx has all requisite power and authority to purchase the Securities, execute and deliver this Subscription Agreement and to perform all of the obligations required to be performed by Xxxxxxx Xxxxx hereunder, and such purchase and performance will not violate or contravene any law, rule or regulation binding on or applicable to Xxxxxxx Xxxxx or any investment guideline or restriction applicable to Xxxxxxx Xxxxx. The person executing this Subscription Agreement on behalf of Xxxxxxx Xxxxx is duly authorized to do so in the capacity in which such person is executing this Subscription Agreement. This Subscription Agreement and any other documents executed and delivered by Xxxxxxx Xxxxx in connection herewith have been duly authorized, executed, and delivered by Xxxxxxx Xxxxx, and are the legal, valid, and binding obligations of Xxxxxxx Xxxxx, enforceable against Xxxxxxx Xxxxx in accordance with their respective terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and similar laws of general application related to or affecting creditors’ rights and by general equitable principles.
x. Xxxxxxx Xxxxx is purchasing the Securities for its own account, with the intention of holding the Securities for investment and with no present intention of dividing or allowing others to participate in this investment or of reselling or otherwise participating, directly or indirectly, in a distribution of the Securities. Xxxxxxx Xxxxx will not make any sale, transfer or other disposition of the Securities without registration under the Securities Act and the State Acts unless an exemption from registration is available under the Securities Act and the State Acts. Xxxxxxx Xxxxx acknowledges that Xxxxxxx Xxxxx and its affiliates have no right to require the Company to seek such registration of the Securities. Xxxxxxx Xxxxx acknowledges that the Company has no obligation to comply with the conditions of Rule 144 promulgated under the Securities Act or to take any other action necessary in order to make available any exemption for the resale of the Securities without registration. Xxxxxxx Xxxxx further acknowledges that the Securities will be subject to significant restrictions on transferability and ownership as set forth from time to time in the Company’s charter.
x. Xxxxxxx Xxxxx is familiar with the business in which the Company will be engaged, and based upon its knowledge and experience in financial and business matters, it is familiar with the investments of the type that it is agreeing to undertake in this Subscription Agreement. Xxxxxxx Xxxxx is fully aware of the problems and risks involved in making investments of this type and is capable of evaluating the merits and risks of such investments.
x. Xxxxxxx Xxxxx is not relying on any communication (written or oral) of the Company or any of its affiliates as investment or tax advice or as a recommendation to purchase the Securities. Xxxxxxx Xxxxx acknowledges that no U.S. federal or state or non-U.S. agency has passed upon the merits or risks of an investment in the Securities or made any finding or determination concerning the fairness or advisability of an investment in the Securities.
x. Xxxxxxx Xxxxx has such knowledge, skill and experience in business, financial and investment matters that Xxxxxxx Xxxxx is capable of evaluating the merits and risks of an investment in the Securities and making an informed investment decision with respect thereto. Xxxxxxx Xxxxx has made an independent legal, tax, accounting and financial evaluation of the merits and risks of an investment in the Securities. Xxxxxxx Xxxxx is able to bear the substantial economic risks related to an investment in the Securities for an indefinite period of time, has no need for liquidity in such investment, and can afford a complete loss of such investment.
x. Xxxxxxx Xxxxx is an “accredited investor” as defined in Regulation D under the Securities Act. Xxxxxxx Xxxxx agrees to furnish additional information reasonably requested by the Company to assure compliance with applicable securities laws, rules and regulations in connection with the purchase and sale of the Securities.
x. Xxxxxxx Xxxxx acknowledges that neither the Company nor any other person offered to sell the Securities by means of, and Xxxxxxx Xxxxx is not investing in the Securities as a result of, any form of general solicitation or advertising, including but not limited to: (a) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio or (b) any seminar or meeting whose attendees were invited by any general solicitation or general advertising.
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i Xxxxxxx Xxxxx acknowledges that the Company will not issue physical certificates for the Securities. Instead, the Securities will be recorded on the books and records of the Company or its transfer agent.
x. Xxxxxxx Xxxxx acknowledges that the representations made by Xxxxxxx Xxxxx herein shall be continuing and must be valid as of each Contribution Date. If there is any material change to the facts or circumstances underlying the representations made by Xxxxxxx Xxxxx herein such that the representations would become false, inaccurate or misleading, Xxxxxxx Xxxxx agrees to notify the Company promptly of such material change.
3. The Company hereby represents and warrants to Xxxxxxx Xxxxx as follows:
a. The Company is a legal entity duly organized, validly existing and in good standing under the laws of the state of Maryland. The Company has all requisite power and authority to execute and deliver this Subscription Agreement and to perform all of the obligations required to be performed by it hereunder, and such performance will not violate or contravene any law, rule or regulation binding on or applicable to the Company. The person executing this Subscription Agreement on behalf of the Company is duly authorized to do so in the capacity in which such person is executing this Subscription Agreement. This Subscription Agreement and any other documents executed and delivered by the Company in connection herewith have been duly authorized, executed, and delivered by the Company and are the legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and similar laws of general application related to or affecting creditors’ rights and by general equitable principles.
b. Neither the offer and sale of the Securities nor the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Subscription Agreement will result in a violation or default of, or the imposition of any lien upon any assets of the Company or any of its subsidiaries pursuant to (a) any provision of applicable law, (b) its organizational documents, (c) the organizational documents, each as amended, of any subsidiary of the Company, (d) any agreement or other instrument binding upon the Company or any subsidiary of the Company or (e) any order of any governmental entity, agency or court having jurisdiction over the Company or any subsidiary of the Company or any of its assets, except in the case of clauses (a), (c), (d) and (e) for any such violation, default or lien that would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the Company’s business, financial condition or results of operations or the Company’s ability to perform its obligations under this Subscription Agreement.
c. No consent, approval, authorization, order, registration, qualification or filing of or with any governmental entity by the Company is required in connection with the transactions contemplated herein, except such as may be required under the Securities Act or State Acts. No consent, approval, or authorization of any other person is required to be obtained by the Company in connection with the transactions contemplated herein, except for any such consent, approval or authorization that would not reasonably be expected to materially and adversely affect the Company’s business, financial condition or results of operations or the Company’s ability to perform its obligations under this Subscription Agreement.
d. The Securities to be issued pursuant to the terms of this Subscription Agreement will, when issued, paid for and delivered, be duly and validly authorized, issued and delivered and shall be fully paid and non-assessable, and such Securities will be free and clear of all taxes, liens (other than transfer restrictions imposed hereunder, under the Company’s charter or by applicable law), preemptive rights, subscription and similar rights.
e. As of the date hereof, there is no action, suit or proceeding before or by any court or governmental agency or body, now pending, or, to the knowledge of the Company, threatened against the Company or any of its subsidiaries, which would have a material adverse effect on or would materially and adversely affect the properties or assets of the Company or which might materially and adversely affect the Company’s ability to perform its obligations under this Subscription Agreement.
f. The Company acknowledges that the representations made by it herein shall be continuing and must be valid as of each Contribution Date.
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4. The Securities purchased by Xxxxxxx Xxxxx in respect of the Commitment as described herein shall be subject to the following repurchase terms:
a. Subject to the terms and conditions set forth in this Section 4, Xxxxxxx Xxxxx agrees to hold all of the Securities it receives in respect of the Commitment until the earlier of (i) the first date that the Company’s NAV reaches $1.5 billion and (ii) three years after the Initial Closing (such date, the “Liquidity Date”).
b. Following the Liquidity Date, each quarter Xxxxxxx Xxxxx may request to have a number of Securities repurchased by the Company equal to the amount available under the 5% quarterly cap of the Company’s share repurchase plan (as amended from time to time, the “Share Repurchase Plan”) after the Company first satisfies repurchase requests from all other common stockholders who have properly submitted a repurchase request for such quarter in accordance with the Share Repurchase Plan (each, a “GS Optional Repurchase”).
c. At any time after an initial one-year period following the Initial Closing when the Company’s shares of capital stock owned by Xxxxxxx Xxxxx, together with any such capital stock owned by its affiliates, were to represent 25% or more of the Company’s total equity (such percentage referred to herein as the “Xxxxxxx Xxxxx Interest”), the Company will automatically and without further action by Xxxxxxx Xxxxx or its affiliates, repurchase an amount of the Company’s capital stock from Xxxxxxx Xxxxx and/or its affiliates as may be necessary to cause the Xxxxxxx Xxxxx Interest to remain equal to or less than 24.99% (each such repurchase or redemption, a “GS Regulatory Repurchase” and, collectively with a GS Optional Repurchase, a “GS Repurchase”).
d. The price per Non-Voting Common Share for each GS Repurchase shall be equal to the most recently determined NAV per Non-Voting Common Share as of the repurchase date. Unless otherwise specified by the Company, the NAV per Non-Voting Common Share shall be equal to the NAV per Class I Common Share (as defined in the Company’s charter).
e. The Securities issued in respect of the Commitment are not eligible for repurchase pursuant to the Share Repurchase Plan and are not therefore subject to the early repurchase deduction as described therein.
f. For so long as Xxxxxxx Xxxxx or its affiliate acts as the Company’s external adviser, the Company shall not effect any GS Optional Repurchase with respect to any quarter in which either (i) the full amount of all common shares of the Company requested to be repurchased under the Share Repurchase Plan by stockholders other than Xxxxxxx Xxxxx and its affiliates are not repurchased or (ii) the Share Repurchase Plan has been suspended or terminated.
g. The Company may in its sole discretion determine to suspend repurchases under this Subscription Agreement if it is prohibited from repurchasing the Securities by a legal, contractual or regulatory restriction applicable to it or its affiliates.
5. Xxxxxxx Xxxxx elects not to participate in the Company’s distribution reinvestment plan.
6. The principal office of Xxxxxxx Xxxxx is at the address shown under its signature on the signature page of this Subscription Agreement.
7. This Subscription Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the conflict of laws provisions therein.
8. This Subscription Agreement contains the entire agreement between the parties with respect to the subject matter thereof. The provisions of this Subscription Agreement may not be modified or waived except in a writing signed by both parties.
9. This Subscription Agreement and the rights, powers and duties set forth herein shall, except as set forth herein, bind and inure to the benefit of the heirs, executors, administrators, legal representatives, successors and assigns of the parties hereto. The parties hereto may not assign any of their respective rights or interests in and under
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this Subscription Agreement without the prior written consent of the other party, and any attempted assignment without such consent shall be void and without effect.
10. If any part of this Subscription Agreement is held by a court of competent jurisdiction to be unenforceable, illegal or invalid, the balance of this Subscription Agreement shall remain in effect and unaffected by such unenforceability, illegality or invalidity.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Subscription Agreement as of the date first above written.
XXXXXXX XXXXX:
GS FUND HOLDINGS, L.L.C.,
a Delaware limited liability corporation
By: The Xxxxxxx Xxxxx Group, Inc., as Manager
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Attorney-in-Fact
Address: 000 Xxxx Xxxxxx
New York, NY 10282
Acknowledged by:
THE COMPANY:
XXXXXXX XXXXX REAL ESTATE FINANCE TRUST INC
a Maryland corporation
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Chief Financial Officer and Treasurer
[Signature Page to Xxxxxxx Xxxxx Subscription Agreement]
1612703369.6
