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HMA Confidentiality Agreement

by | Aug 14, 2023

CONFIDENTIALITY AGREEMENT

THIS AGREEMENT is made and entered into as of the date as recorded via the Electronic Signature MEMBERSHIP FORM, by and between Prospective Buyer, and HULL MULTIFAMILY ADVISORS LLC, a Michigan limited liability company (hereafter referred to as “HMA”).

WHEREAS, HMA is in the business of brokering the purchase and sale of multifamily housing developments; and

WHEREAS, Prospective Buyer has expressed interest in investigating the possible purchase of all or substantially all of the real estate listings located on HMA’s website (the “Property”), utilizing the services of HMA (the “Purpose”), and HMA is providing certain confidential information or proprietary information relating to the Property for the Purpose.

NOW, THEREFORE, in consideration of the promises and covenants and agreements herein contained, the parties agree as follows:

  1. Prospective Buyer agrees to maintain confidential the existence of discussions or negotiations with HMA regarding the Purpose or any of the terms, conditions, or other facts with respect to any such possible transaction.

 

  1. Prospective Buyer agrees to hold all disclosed information, which is marked “Confidential,” (“Confidential Information”) in trust and confidence for the contemplated Purpose and agrees that the Confidential Information shall not be disclosed to any third party without the prior written consent of the Prospective Buyer.

 

  1. Disclosure by the Prospective Buyer of the Confidential Information may be made only to employees, agents, or advisors of the Prospective Buyer (collectively “Representatives”) who (i) are directly involved in the Prospective Buyer’s evaluation of the Confidential Information, (ii) have a specific need to know such information, and (iii) made aware of the Prospective Buyer’s confidentiality obligations hereunder. The Prospective Buyer agrees to be responsible for any breach of this Agreement by its Representatives. It is understood the Representatives assume the same obligation of confidentiality as Prospective Buyer has under this Agreement.

 

  1. Prospective Buyer shall have no obligation to hold confidential any information that: (i) is generally known or available from public sources prior to the effective date of this Agreement or that shall become common knowledge within the public thereafter, but not as a result of actions by the Prospective Buyer or Representative; (ii) was available to or known to the Prospective Buyer prior to disclosure by HMA; (iii) becomes available to Prospective Buyer or its Representatives from a source other than HMA, provided that the source of such information was not known by Prospective Buyer to be prohibited from disclosing such information by a legal, contractual, or fiduciary obligation; or (iv) has otherwise been independently acquired or developed by Prospective Buyer or its Representatives without violating any obligations under this Agreement.

 

  1. If Prospective Buyer or any of its Representatives are requested to disclose any Confidential Information in connection with any legal or administrative proceeding, or investigation, or is required by law, regulation, or regulatory authority to disclose any Confidential Information, such person or entity will (i) promptly notify HMA and the owner of the Property (“Owner”) of the existence, terms, and circumstances surrounding such a request or requirement so that HMA and/or the Owner may seek a protective order or other appropriate remedy, or waive compliance with the provisions of this Agreement, and (ii) if, in the absence of a protective order, such disclosure is required in the opinion of such person’s or entity’s counsel, such person or entity may make such disclosure without liability under this Agreement, provided that such person or entity only furnishes that portion of the Confidential Information which is legally required, such person or entity gives HMA and the Owner notice of the information to be disclosed as far in advance of its disclosure as practicable; and, upon Prospective Buyer’s request, such person or entity shall cooperate in any efforts by the HMA and/or Owner to ensure that confidential treatment shall be accorded to such disclosed information.

 

  1. Upon the written request of the Prospective Buyer by HMA or Owner, all Confidential Information shall be returned within thirty (30) days or destroyed, with adequate proof of such destruction provided.

 

  1. The provisions contained in the preamble of this Agreement hereby are made a part of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties, their respective successors, heirs, and assigns. This Agreement shall be governed by and interpreted under the laws of the State of Florida/ Michigan.  If any paragraph or provision of this Agreement is determined to be unlawful, the remaining provisions of this Agreement shall continue to be in full force and effect.

 

  1. Prospective Buyer hereby agrees that all Confidential Information and related materials furnished by HMA will not be used by Prospective Buyer for any purpose other than for evaluating a possible transaction involving the Property with the Owner. Prospective Buyer acknowledges and agrees that: (a) Owner shall pay a brokerage commission only to HMA pursuant to a separate agreement, (b) if a broker, other than HMA, represents a successful buyer of the Property, such buyer will be responsible for the fee to its broker, and (c) HMA represents the Owner only, and no sub agency does or shall exist with any other broker. HMA, in its capacity as exclusive agent for Owner, has no power or authority in any way to bind the Owner with respect to a transaction involving the Property, and the Owner shall in no way be bound, or be deemed to have agreed, to any transaction or the terms and conditions thereof until such time as the Owner has executed and delivered a definitive written agreement with the Owner, under terms and conditions that are acceptable to the Owner, in its sole and absolute discretion.

 

  1. The Confidential Information and any supplemental materials provided to Prospective Buyer have been obtained by sources believed reliable. While HMA does not doubt its accuracy, the information has not been verified and neither HMA make any guarantee, warranty, or representation of any kind or nature about it. It is your responsibility to independently confirm its accuracy and completeness. Any projections, opinions, assumptions, or estimates used are for example and do not represent past, current or future performance of the Property. The value of this transaction to you depends on many considerations, including tax and other factors, which should be evaluated by you and your tax, financial, and legal advisors. You and your advisors should conduct a careful and independent investigation of the Property and the proposed transaction to determine to your satisfaction the suitability of the Property and the quality of its tenancy for your records.

 

  1. Prospective Buyer shall not provide any work product produced by Prospective Buyer from the Confidential Information to any third party, without first obtaining the prior written consent of HMA or Owner.

 

  1. This Agreement shall expire one year from the date hereof. The confidentiality obligations imposed by this Agreement shall continue with respect to a particular item of Confidential Information until the disclosure of such Confidential Information to the public otherwise than in violation of this Agreement.

 

  1. No modifications of this Agreement, or waiver of any of its terms, will be effective, unless set forth in writing signed by the party against whom it is sought to be enforced. Should any provision of this Agreement be held by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not render the entire Agreement invalid or unenforceable, and this Agreement, and each individual provision hereof, shall be enforceable and valid to the fullest extent permitted by law. This Agreement may be executed in counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument.

 

  1. The Prospective Buyer hereby acknowledges and agrees that in the event of any actual breach of this Agreement by Prospective Buyer, including, without limitation, the actual disclosure of the Confidential Information, without the express prior written consent of the HMA or Owner, HMA or Owner will suffer irreparable harm and injury and no remedy at law will afford it adequate protection against, or appropriate compensation for such injury. Accordingly, the Prospective Buyer hereby agrees that in any such event, HMA or Owner shall be entitled to specific performance of the Prospective Buyer’s obligations under this Agreement, as well as such further injunctive relief as may be granted by a court of competent jurisdiction. Nothing herein shall be construed as prohibiting HMA or Owner from pursuing any other remedies available to it for any such breach including recovery of damages; provided, however, in no event shall HMA or Owner be entitled to punitive, consequential, special or indirect damages in connection with a breach of this Agreement.

 

  1. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY. If the Parties litigate any action or proceeding to enforce this Agreement, then the prevailing party of such action or proceeding shall be entitled to recover from the non-prevailing party all of its legal costs and expenses incurred in such action, including, but not limited to, reasonable attorneys’ fees, costs, and expenses of such action, both at the trial level and in any appellate proceeding. In the event of any legal or equitable action arising under this Agreement, the Parties agree that the sole and only jurisdiction and venue for such action shall lie exclusively within either the state courts of Michigan, located in Oakland County. The Parties hereby specifically waive any other jurisdiction and venue.