Discloser: Rodeo Cold, LLC and any entity to which Rodeo Cold, LLC may assign their interests in the Business (the "Discloser")
Recipient: Undersigned (the "Recipient")
Transaction: A possible investment by Recipient of the business located in Anthem, Arizona (referred to herein as the “The Business”) (the "Transaction")
Discloser Contact: Ray Domecq, 1318 West Medinah Ct, Anthem AZ 85086 Telephone: 307.690.5123 / Email: Ray@Rodeocoldbeer.com (the "Discloser Contact")
In connection with the Transaction, Recipient has requested access to certain Confidential Information (as defined below) from Discloser. In consideration for and as a condition to Discloser furnishing the Confidential Information, Recipient agrees to the terms and conditions set forth in this agreement (“Agreement”):
1. CONFIDENTIAL AND PROPRIETARY NATURE OF THE INFORMATION
Recipient acknowledges the confidential and proprietary nature of the Confidential Information and agrees to hold and keep the Confidential Information as specifically provided in this Agreement subject to the terms and conditions hereof.
As used in this Agreement, the term “Confidential Information” means and includes any and all of the information described below that has been or may hereafter be disclosed to Recipient by Discloser or by Discloser’s officers, directors, employees, agents, members, partners and affiliates or advisors to Discloser (such as attorneys, accountants, consultants, appraisers, contractors, financing sources and financial advisors) (“Discloser Representatives”):
Any information with respect to the Business and Transaction (including the terms and conditions of the Transaction), any information with respect to a specific loan, property, or other asset, however documented, or otherwise obtained from review of Discloser’s documents or discussions with Discloser’s Representatives irrespective of the form of the communication, written or oral, and also includes all notes, analyses, compilations, studies, summaries, reports, assessments and other material prepared by Discloser or Discloser Representatives containing or based, in whole or in part, upon any information included in the foregoing.
In no event shall Discloser be under any obligation to provide any information that is proprietary in nature, protected by attorney-client privilege or similar professional privileges, which Discloser is prohibited by the terms of other agreements from disclosing, or internal analysis, studies or memoranda or communications.
2. RESTRICTED USE OF CONFIDENTIAL INFORMATION
Recipient agrees that the Confidential Information (a) will be kept confidential by Recipient, (b) without limiting the foregoing, will not be disclosed by Recipient to any Person except with the specific prior written consent of the Discloser Contact or except as expressly otherwise permitted by this Agreement and (c) will be used solely in connection with Recipient’s evaluation of a potential loan to or investment opportunity with the Discloser, and then only on a confidential basis. It is understood that Recipient may disclose such information to Recipient’s financial advisors, attorneys, accountants, financing sources, co-investors, and any other representatives (collectively, “Recipient’s Representatives”) who need to know such information for the sole purpose set forth herein and who are directed, and agree in writing, to keep such information confidential subject to the same terms and conditions hereof. Recipient further agrees that Recipient and Recipient’s Representatives will not use any of the Confidential Information for any reason or purpose other than to evaluate the Property and to negotiate a Transaction. Recipient will not make or participate in any loan secured by or related to the Business and will not make or participate in any equity investment in the Business except through Discloser. In no event shall Recipient disclose any Confidential Information to any federal, state or local agency or administrative or judicial body, except as set forth below or to the media or representative of the media.
3. NO REPRESENTATIONS, WARRANTIES, OR LIABILITY
Recipient understands and agrees that neither Discloser or any of its Discloser Representatives (i) has made or make, or will be deemed to have made or make, any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information or that Discloser or Discloser Representatives have provided all information that may be relevant, (ii) shall have any liability whatsoever to Recipient or any of Recipient’s Representatives resulting from the use of the Confidential Information or any errors therein or omissions therefrom; it being understood that Recipient and Recipient’s Representatives shall assume full responsibility for all conclusions Recipient and Recipient’s Representatives derive from any Confidential Information. Without limiting the generality of the immediately preceding sentence, the Confidential Information may include certain analyses, statements, estimates, and projections with respect to the anticipated future performance of Discloser or of the Business. Such analyses, statements, estimates, and projections reflect various assumptions made by Discloser concerning the respective anticipated results, which assumptions may or may not prove to be correct. No representations are made as to the accuracy of such assumptions, analyses, statements, estimates, or projections. In addition, Recipient acknowledges that Discloser has no responsibility to update or supplement the Confidential Information.
4. DISCLOSER CONTACT
All requests by Recipient for Confidential Information, meetings with Discloser Representatives or inspection of the Business must be made to the Discloser Contact.
All of the foregoing obligations and restrictions do not apply to that part of the Confidential Information that (a) is or becomes publicly available without breach of this Agreement by Recipient; (b) is rightfully received by Recipient without obligations of confidentiality to Discloser; or (c) is developed by Recipient without breach of this Agreement or (d) is in Recipient’s possession as of the date hereof but which was provided from a source other than Discloser or Discloser’s Representatives.
6. LEGAL PROCEEDINGS
Recipient may disclose, without liability of any kind, any Confidential Information if such Discloser is (i) reasonably believed, on advice of its counsel, by it to be compelled by any court decree, subpoena or other legal or administrative order or process (collectively, an “Order”) or, (ii) on the advice of its counsel, otherwise required by law, or regulation. To the extent practicable and allowed by law, Recipient shall notify the Discloser Contact of the receipt of any such Order or decision by Recipient to disclose Confidential Information, and shall permit the Discloser to seek, at its own expense, an appropriate protective order or injunctive relief with respect thereto.
7. NO OBLIGATION TO NEGOTIATE OR ENTER A TRANSACTION
Discloser reserves the right, in its sole discretion, to reject any and all proposals made by Recipient with regard to a possible Transaction and to terminate discussions and negotiations with Recipient at any time, with or without notice. Neither Recipient nor Discloser shall have rights or obligations of any kind whatsoever with respect to a Transaction by virtue of this Agreement other than for the matters specifically agreed to herein. Without limiting the preceding sentences, nothing in this Agreement requires either Recipient or Discloser to enter into any Transaction or to negotiate a Transaction for any specified period of time. In the event of a termination, Recipient, and shall cause Recipient’s Representatives to, immediately return to Discloser Contact all Confidential Information, and copies or summaries thereof, obtained by Recipient.
Recipient shall defend, indemnify and hold Discloser harmless from any loss, liability, obligation, claim, costs, expenses and fees (including reasonable attorney fees and costs) arising from, or in any way connected with, Recipient’s breach hereof.
Recipient agrees that, in the event of any breach of this Agreement, Discloser will be entitled, without the requirement of posting a bond or other security, to institute and prosecute proceedings requesting equitable relief, including injunctive relief and specific performance. Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or equity to Discloser.
10. RECIPIENT AUTHORITY
Recipient has the power and authority to enter into this Agreement and to execute and deliver this Agreement and to perform all duties and obligations imposed upon it hereunder. As of the date of this Agreement, Recipient has obtained all necessary approvals and authorizations required in connection with the execution and delivery of this Agreement. The individual executing this Agreement on Recipient’s behalf is authorized to do so.
(a) Modification. This Agreement is the entire agreement pertaining to the subject matter hereof between Discloser and Recipient and all other understandings or agreements are hereby superceded. This Agreement may be modified or waived only by a separate writing signed by Discloser and Recipient expressly modifying or waiving this Agreement or such agreements.
(b) Waiver. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege.
(c) Person. The term “Person” means any individual, corporation (including any nonprofit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union or other entity or governmental body.
(d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect. If any of the covenants or provisions of this Agreement are determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the court making such determination shall reduce such extent, duration, scope or other provision and enforce them in their reduced form for all purposes contemplated by this Agreement.
(e) Costs. In the event litigation arises between the parties as to this Agreement, the prevailing party shall be entitled to all reasonable and documented costs of such action or suit, including reasonable attorney’s fees if and only if a court of competent jurisdiction no longer subject to further review or appeal finally determines that Recipient has materially breached this Agreement.
(f) Section Headings, Construction. The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms.
(g) Governing Law. This Agreement will be governed by the laws of the State of Arizona without regard to conflicts-of-laws principles.
(h) Continuing Obligation. The obligation not to disclose shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against Recipient, nor by the rejection of any agreement between the parties, by a trustee of either party in bankruptcy, or by Recipient as a debtor-in-possession or the equivalent of any of the foregoing under local law.
(i) Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement, and all of which, when taken together, shall be deemed to constitute one and the same Agreement. The exchange of copies of this Agreement and of signature pages by email transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile or email shall be deemed to be their original signatures for any purpose whatsoever.
(j) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of Discloser and Recipient.
(k) Litigation. If Discloser institutes suit or action against Recipient to enforce any of its rights hereunder and is the prevailing party, the Discloser shall be entitled to recover from the Recipient all reasonable costs thereof, including, without limitation, all attorneys' fees and expert witness fees and all costs before trial, at trial and at all appellate levels, as the case may be, in addition to any other relief (at law or otherwise) to which such party may be entitled.
If Recipient is in Agreement with the foregoing, please use electronic signature, which thereupon will constitute the agreement by the parties with respect to its subject matter.
EXECUTED and agreed to as of the first date written above.