RD REAL ESTATE DEBT FUND II, LP

Non-Disclosure Agreement

THIS AGREEMENT (this “Agreement”) is made and entered into as of the date last written below by and between RD Real Estate Debt Fund II LP (“RD” or the “Disclosing Party”), a Delaware limited liability company, and the prospective investor listed on the signature pages hereof (the “Prospective Investor” or the “Receiving Party”) (together with RD, the “Parties”).

WHEREAS, RD would like to invite the Prospective Investor to invest in RD (the “Investment”); and

WHEREAS, for the purpose of reviewing and evaluating such Investment (the “Permitted Purpose”), RD wishes to disclose to the Prospective Investor from time to time certain Information (defined below) subject to the terms and conditions set forth in this Agreement;

NOW THEREFORE, the Parties, intending to be legally bound, hereby agree as follows:  

1.         Non-Disclosure.  The Receiving Party agrees (a) to hold all of its Information in confidence, (b) to use such Information solely for the Permitted Purpose and (c) to share, save and retain internally such Information solely on a “need-to-know” basis for the Permitted Purpose.

(a)  “Information” means, all information supplied to the Receiving Party (or to any person representing or affiliated with the Receiving Party) by the Disclosing Party or its advisors and Affiliates, whether in writing or orally that relates to RD or its affiliates or that is otherwise clearly identified or labeled as proprietary or confidential when supplied and includes, in any event, (x) all pitchbooks, private placement memoranda and financial statements of RD and (y) all notes, analyses, compilations, studies or other documents or records prepared by the Disclosing Party or others, which contain or reflect or are generated from such information; provided, that non-financial information disclosed orally that is not clearly identified as proprietary or confidential when supplied shall nevertheless constitute “Information” hereunder if it is identified as confidential or proprietary in a written email or memorandum delivered to the Receiving Party within sixty (60) days after such disclosure.

(b)  Notwithstanding the definition above the term “Information” does not include information that satisfies the following:

(i)             is or becomes publicly available other than through a breach of this Agreement;
(ii)           is obtained by the Receiving Party on a non-confidential basis from anyone other than the Disclosing Party, whether before or after its receipt from the Disclosing Party; or
(iii)          is developed independently by the Receiving Party without relying on, and using personnel having had access to, its Information.

2.         Affiliates and Advisors. NotwithstandingSection 1 above, the Receiving Party may disclose its Information to its attorneys and financial advisers, in each case only if they were made aware of, and have agreed to comply with, this Agreement. The Receiving Party shall ensure that all persons receiving Information pursuant to this Section 2comply with this Agreement as if they were the Receiving Party and the Receiving Party shall be responsible hereunder for their failure to do so.

3.         Disclosures Required by Law.  Notwithstanding Section 1 above, the Receiving Party may, without liability, make any disclosure that is required under any law or regulation or required in connection with any action, investigation or proceeding;provided, that the Receiving Party agrees to limit such disclosure to what is legally required, to request any protection for the Information legally available to it and, to the extent legally permissible, to notify the Disclosing Party of any disclosure made pursuant to this sentence either (x) to the extent legally permissible, prior to such disclosure in order to provide the Disclosing Party with sufficient time to obtain legal protection appropriate to prevent or limit such disclosure or (y) in any case, promptly thereafter. The Receiving Party agrees that, at the expense of the Disclosing Party and except as Legally Required, the Receiving Party shall cooperate with reasonable requests of the Disclosing Party with respect to any such disclosure and any legal protection the Receiving Party seeks to obtain with respect thereto.

4.         Securities Laws.  The Receiving Party represents and warrants that it is familiar with the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Advisers Act of 1940 and other applicable securities laws and regulations (the “Securities Laws”) and understands that the Information contains non-public information.  The Receiving Party represents and warrants that it has adequate internal policies, procedures and safeguards in place to prevent the misuse of any material non-public information and to ensure that all of the trading of the Receiving Party and all persons receiving the Information pursuant to this Agreement is and will be conducted in compliance with all Securities Laws.

5.         Termination. This Agreement shall expire on the earlier of (a) the third anniversary of the date of the last receipt of Information by the Receiving Party and (b) the date of execution of definitive agreements with respect to the Investment between, among others, the Parties and their Affiliates (as defined below) that contain a confidentiality undertaking by the Parties. The Receiving Party agrees that, on the date of expiration of this Agreement, it shall, at its option, return to the Disclosing Party or destroy all Information; providedthat it may keep any copies required to be kept by its compliance procedures of general application and any back-up copies automatically generated by computer systems so long as, in each case, such copies remain subject to this Agreement regardless of the termination hereof until such copies are destroyed.

6.         Indemnification.  The Receiving Party hereby agree to indemnify, defend and hold harmless the Disclosing Party and its Affiliates and their respective directors, officers, employees and advisors (the “Indemnified Parties”), from and against any damages, losses, costs, liabilities and expenses (including, without limitation, attorneys’ fees and the cost of enforcing this indemnity) suffered by the Indemnified Party arising out of or resulting from any unauthorized use or disclosure of Information by the Receiving Party, its Affiliates or any other party to whom such Receiving Party has disclosed Information or otherwise as a result of a breach of this Agreement by the Receiving Party, its Affiliates or any such other party.  “Affiliate” of a Party means any legal entity that controls, or is controlled by, or is under common control with, such Party - where “control” means the direct or indirect ownership of fifty (50) percent or more of the voting rights.

7.         No Joint Venture; No Transfer of Intellectual Property or Securities.  Neither this Agreement nor the discussions between the Parties of the Permitted Purposes create a joint venture or similar arrangement, constitute a transfer of any intellectual property (other than a revocable license to use the Information in accordance with the Permitted Purpose and this Agreement) or constitute a commitment by any Party to accept, make, enter into, or to continue to negotiate an agreement to enter into, the Investment or other transaction with the other Party, or to avoid entering into any other transaction or discussion with any other person, in each case whether or not related to the Investment or the Permitted Purpose. This Agreement is merely a non-disclosure agreement to share information and is not an offer to make an Investment or an offer to sell or purchase any security, loan or other financial instrument or any participation in any of the foregoing, each of which shall be made with appropriate documentation therefor, such as a private placement memorandum and other disclosures. 
 
8.         Miscellaneous. Brokerage services are provided for affiliates of RD by Pickwick Capital Partners, LLC (“Pickwick”).  All notices and other communications hereunder shall be provided by internationally-recognized courier service, fax (effective on the next business day in the jurisdiction where the recipient is located upon receipt by the sender of confirmation of effective delivery or transmission) or email at the numbers and addresses listed in the signature pages hereof or to such other address, email or fax number of which each party hereto may notify the other from time to time.  Money damages may not be a sufficient remedy for breach of this Agreement and, in addition to all other remedy available at law or in equity, the Parties agree that, in the case of a breach, the aggrieved Party may, in certain circumstances, be entitled to seek equitable relief, including, without limitation, an immediate injunction and specific performance, without proof of actual damages.  No failure or delay by either party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or privilege hereunder.  The fact that any term or provision of this Agreement is held invalid, illegal or unenforceable as to any person in any situation in any jurisdiction shall not affect the validity, enforceability or legality of the remaining terms or provisions hereof or the validity, enforceability or legality of such offending term or provision in any other situation or jurisdiction or as applied to any person.  This Agreement (a) shall be governed by and construed in accordance with the laws of the State of New York, (b) has been executed in the English language, and the English text shall prevail over any translation, (c) is for the exclusive benefit of the Parties, Pickwick and their respective Affiliates and constitutes the entire agreement of such Parties, superseding all prior agreements and understandings among them (all of which are hereby terminated), in each case with respect to the obligations of confidentiality owed with respect to the Information, (d) may be modified, waived or assigned only by a writing signed by the parties hereto or, in the case of a waiver, the party granting such waiver (and any attempt to modify, waive or assign this Agreement without such writing shall be null and void), (e) is a negotiated document, entered into freely by the parties upon advice of their own counsel, and it should not be construed against any of its drafters and (f) may be executed in counterparts, which may be transmitted by fax or e-mail and which, together, shall constitute one and the same instrument.  Each party hereto hereby irrevocably submits to the non-exclusive jurisdiction of the courts located in the City of New York, Borough of Manhattan (and the appropriate appellate courts) and hereby irrevocably and unconditionally (x) waives (1) any objection to the laying of venue in any such court for any claim, action or proceeding directly or indirectly with respect to, arising out of or relating to this Agreement or the actions of the parties hereto or any of their representatives in the negotiation, performance or enforcement of this Agreement and (2) any right to trial by jury with respect to any such claim, action or proceeding and (y) consents to service of process in any such action or proceeding by, in addition to any other means otherwise permitted by law, the mailing of copies of such process at its address specified herein.

This is a legally binding Agreement among sophisticated parties.  Each party has consulted with, or has been advised to consult with, its own attorney before signing it.