Consulting Agreement
Exhibit
10.5
This
Consulting Agreement (this
“Agreement”) is made as of the 1st day of November 2006, by and among OL
Funding, Inc., a Nevada corporation (the “Company”), and Knight Consulting
Corporation, a Kentucky corporation with its principal place of business at
000
X. 0xx Xxxxxx,
Xxxxx 000, Xxxxxxxxxx, XX 00000 (together with its agents and employees,
collectively, the “Consultant”) and is made in light of the following recitals
which are a material part hereof.
Recitals:
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A.
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The
Company intends to be mortgage broker, mortgage banking and consumer
financing company.
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B.
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Consultant
is a corporate finance Consultant, experienced with strategic planning,
technology implementation and financing of small-cap companies
generally. Accordingly, notwithstanding Consultant’s
familiarity with securities law, neither Consultant nor the Company
desires that Consultant furnish any legal services or legal opinions
but
only information, evaluation and analysis. Similarly,
notwithstanding Consultant’s familiarity with financing small companies,
neither Consultant nor the Company desires that Consultant furnish
any
investment banking services or underwriting but only information,
evaluation and analysis.
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C.
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Consultant
has knowledge and experience to provide such information, evaluation,
analysis that the Company believes can assist it in further execution
of
its business model.
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D.
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The
Company desires to retain the services of the Consultant regarding
its
organization and structure and certain financings contemplated as
well as
the impact of such financings on the functions and operations of
the
Company as more fully set forth in that confidential Schedule of
Services
and Deliverables attached hereto as Schedule A which services are
incorporated herein by reference and referred to herein as the “Consultant
Services”
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E.
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Consultant
desires to provide the Consultant Services to and consult with the
Board
of Directors, the officers of the Company, and the administrative
staff,
and to undertake for the Company, consultations and recommendations
in
conformity with such Consultant upon the terms and conditions provided
herein including but not limited to the compensation promised
herein.
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NOW
THEREFORE, for and in consideration
of good and valuable consideration, in hand paid, including, but not limited
to
the mutual promises set forth herein, the receipt and sufficiency of which
is
acknowledged by each party hereto, the parties hereby agree as
follows:
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1.
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Recitals
Govern. The parties desire to enter into this
Agreement for purposes of carrying out the above recitals and intentions
set forth above and this Agreement shall be construed in light
thereof.
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2.
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Consulting
Services. The Consultant agrees to provide the Consultant
Services to the Company during the “Term” (as hereinafter defined).
Consultant agrees to provide such information, evaluation and analysis,
in
accordance with the Consultant Services that will assist in maximizing
the
effectiveness of Client’s business model both relative to its business
model and to its present and contemplated capital
structure. The Consultant shall personally provide the
Consultant Services and the Company understands that the nature of
the
services to be provided are part-time and that the Consultant will
be
engaged in other business and consulting activities during the term
of
this Agreement.
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a.
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Conflicts. The
Company waives any claim of conflict and acknowledges that Consultant
has
owned and continues to own and has consulted with and continues to
consult
with interests in competitive businesses which might compete but
for
location.
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b.
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Confidential
Information. The Consultant agrees that any information received
by the Consultant during any furtherance of the Consultant's obligations
in accordance with this contract, which concerns the personal, financial
or other affairs of the company will be treated by the Consultant
in full
confidence and will not be revealed to any other persons, firms or
organizations. In connection herewith, Consultant and the Company
have
entered into that Confidentiality Agreement in the form attached
hereto as
Schedule B.
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c.
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Role
of Consultant. Consultant shall be available to
consult with the Board of Directors, the officers of the Company,
and the
heads of the administrative staff, at reasonable times, concerning
matters
pertaining to the organization of the administrative staff, the fiscal
policies of the Company, the relationship of the Company with its
employees or with any organization representing its employees, and,
in
general, the important problems of concern in the business affairs
of the
Company all in fulfillment of the Consultant Services. Consultant
shall
not represent the Company, its Board of Directors, its officers or
any
other members of the Company in any transactions or communications
nor
shall Consultant make claim to do
so.
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d.
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Liability. With
regard to the services to be performed by the Consultant pursuant
to this
Agreement, the Consultant shall not be liable to the Company, or
to anyone
who may claim any right due to any relationship with the Company,
for any
acts or omissions in the performance of services on the part of the
Consultant or on the part of the agents or employees of the Consultant,
except when said acts or omissions of the Consultant are due to willful
misconduct or gross negligence. The Company shall hold the Consultant
free
and harmless from any obligations, costs, claims, judgments, attorney’s
fees, and attachments arising from or growing out of the services
rendered
to the Company pursuant to the terms of this Agreement or in any
way
connected with the rendering of services, except when the same shall
arise
due to the willful misconduct or gross negligence of the Consultant
and
the Consultant is adjudged to be guilty of willful misconduct or
gross
negligence by a Court of competent
jurisdiction.
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3.
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Term.
The term of this Agreement shall commence as of the date hereof and
shall
continue for a period of one (1) year from that date, unless sooner
terminated as provided herein. It is understood that this
Agreement shall not automatically renew and no obligations to renew
are
implied notwithstanding continued efforts to fulfill terms and conditions
incomplete as of the termination of this Agreement. This Agreement
and the
duties and obligations of the Consultant may be terminated by either
party
giving thirty (30) days prior written notice to the other but the
compensation and any previously incurred and approved expenses shall
be
deemed earned by and due to
Consultant.
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4.
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Compensation. In
consideration of the execution of the Agreement, and the performance
of
its obligations hereunder, the Company agrees to and does hereby
grant,
convey and warrant and issue to Purchaser Three Million (3,000,000)
shares
of common stock of the Company (the “Shares”) which are conveyed as if
sold at their par value of $.001 per share, based on an agreed valuation
for the work rendered and to be rendered being valued, for purposes
herein, as $3,000.00, for which Consultant is deemed to have received
same
as of the date of execution. The right to receive the Shares at
the agreed-upon value and the issuance and delivery of same to the
Consultant constitutes the consideration for Consultant’s
services. The Shares will not be, prior to delivery to
Consultant, registered pursuant to any valid or effective registration
statements and the Consultant recognizes any restriction or other
limitation under state or Federal securities laws including but not
limited to Rule 144 of the Securities Act of 1933 and/or the limitations
on manner of sale imposed under the Securities and Exchange Act of
1934. Upon payment for the shares, including delivery of
Consultant’s promissory note for the balance due, if any, the Shares shall
be “fully paid and non-assessable” and Consultant shall be deemed paid in
full for the services required hereunder. The compensation
shall not be reduced as a result of coordinated efforts by other
consultants and the Company consents to such coordinated
efforts.
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5.
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Expenses.
The Company shall pay or reimburse the Consultant for all reasonable
travel, business and miscellaneous expenses incurred by the Consultant
in
performing its duties under this Agreement, subject to prior Company
approval.
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6.
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Control
as to Time and Place and Manner where Services Will Be Rendered,
Independent Contractor. Both the Company and the
Consultant agree that the Consultant will act as an independent contractor
in the performance of its duties under this Agreement. The Consultant
will
perform most services in accordance with this Agreement at a location
and
at times chosen at Consultant's discretion. The Company may from
time to
time request that the Consultant arrange for the services of others
but
Consultant shall choose and contract with same. Accordingly,
the Consultant shall be responsible for payment of all taxes including
Federal, state and local taxes arising out of the Consultant's activities
in accordance with this Agreement, including by way of illustration
but
not limitation, Federal and state income tax, Social Security tax,
unemployment insurance taxes, and any other taxes or business license
fee
as required. The Compensation provided herein shall include any and
all
services of a similar nature provided by Consultant and any parties
acting
under its supervision, including but not limited to, legal services
pertaining to compliance with or pertaining to the sale of securities
generally, including but not limited to, the Securities Act of 1933,
as
amended, and the rules and regulations promulgated thereunder, or
any
state statute, rule, or regulation relating to the sale of securities
(collectively, “Securities Laws”). Except as otherwise may be
agreed, the Consultant shall at all times be an independent contractor,
rather than a co-venturer, agent, employee or representative of the
Company.
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7.
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Representations
and Warranties. The Company represents and warrants
that (i) the shares being issued and/or sold as provided herein are
authorized to be issued by the Company; (ii) The Company has full
right,
power, and corporate authority to execute and enter into this Agreement,
and to execute all underlying documents and to bind such entity to
the
terms and obligations hereto and to the underlying documents and
to
deliver the interests and consideration conveyed thereby, same being
authorized by power and authority vested in the party signing on
behalf of
the Company; (iii) the Company has and will have full right, power,
and
authority to sell, transfer, and deliver the shares being issued
and/or
sold as provided herein; (iv) the Company has no knowledge of any
adverse
claims affecting the subject shares and there are no notations of
any
adverse claims marked on the certificates for same; and (v) upon
receipt,
Consultant or its nominee will acquire the shares being issued and/or
sold
pursuant to option, free and clear of any security interests, mortgage,
adverse claims, liens, or encumbrances of any nature or description
whatsoever, subject only to matters of the Securities Laws. In
the event that Consultant accepts shares not yet subject to a valid
registration statement, Consultant represents and warrants to the
Company
that he will not at any time sell, exchange, transfer, or otherwise
dispose of same under circumstances that would constitute a violation
of
Securities Laws. Each party acknowledges the creation,
modification and/or transfer of securities and represents and warrants
to
all others that it has reviewed the transaction with counsel and
that no
registration or representations are required and that all rights
of
recourse or rescission resulting from such transfer, to the extent
permitted by law, are waived and each party represents and warrants
to all
others that no marketing of securities to the public has occurred.
Each of
the warranties, representations, and covenants contained in this
Agreement
by any party thereto shall be continuous and shall survive the delivery
of
Consultant Services, the Compensation and the termination of this
Agreement.
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8.
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Limitation
of Services. At no time will Consultant be expected to, or
obligated to provide, nor will Consultant provide any services which
might
otherwise be characterized as investment banking services or subject
to
any regulation pertaining to brokers or dealers or otherwise requiring
any
licensing in any aspect of Securities Laws but Consultant may advise
as to
the provision of such services by others including such analysis
of their
performance as is permitted under such Securities Laws. The
Consultant has been advised, and relies upon the representation,
that the
Company intends to raise money only by selling its stock to non-United
State’s citizens or foreign entities outside the United States in
compliance with the Securities Laws and relies on the representation
of
the Company as to propriety of its
actions.
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9.
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Arbitration.
Any controversy or claim arising out of or relating to this Agreement,
or
the breach thereof, shall be settled by arbitration in accordance
of the
rules of the American Arbitration Association, and judgment upon
the award
rendered by the arbitrator(s) shall be entered in any Court having
jurisdiction thereof. For that purpose and the resolution of any
other
claim hereunder, the parties hereto consent to the jurisdiction and
venue
of an appropriate Court located in Los Angeles County, State of
California. In the event that litigation results from or arises
out of this Agreement or the performance thereof, the parties agree
to
reimburse the prevailing party's reasonable attorney's fees, Court
costs,
and all other expenses, whether or not taxable by the Court as costs,
in
addition to any other relief to which the prevailing party may be
entitled. In such event, no action shall be entertained by said Court
or
any Court of competent jurisdiction if filed more than one year subsequent
to the date the cause(s) of action actually accrued regardless of
whether
damages were otherwise as of said time
calculable.
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10.
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Notices. All
notices, requests, consents, and other communications under this
Agreement
shall be in writing and shall be mailed by registered or certified
mail,
postage prepaid, or delivered by Facsimile or delivered personally
to the
address written above or to such other address of which the addressee
shall have notified the sender in writing. Notices mailed in accordance
with this section shall be deemed given when
mailed.
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11.
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Binding
Effect, Assignment and Succession. All covenants and
agreements contained in this Agreement by or on behalf of any of
the
parties hereto shall bind and inure to the benefit of his, her or
its
respective heirs, personal representatives, successors, and assigns,
whether so expressed or not. Except for assignment of the options
as
provided above, no party to this Agreement may, however, assign his
rights
hereunder or delegate his obligations hereunder to any other person
or
entity without the express prior written consent of the other parties
hereto.
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12.
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Entire
Agreement and Interpretation. This Agreement,
including any exhibits and schedules hereto, constitutes and contains
the
entire agreement of the Company and the Consultant with respect to
the
provision of Consultant Services and Compensation and supersedes
any prior
agreement by the parties, whether written or oral. It may not be
changed
orally but only by an agreement in writing signed by the party against
whom enforcement of any waiver, change, modification, extension,
or
discharge is sought. The waiver of a breach of any term or condition
of
this Agreement must be in writing and signed by the party sought
to be
charged with such waiver, and such waiver shall not be deemed to
constitute the waiver of any other breach of the same or of any other
term
or condition of this Agreement. This Agreement shall be
construed in accordance with and governed by the laws of the State
of
California without regard to its rules and laws regarding conflicts
of
laws and each of the parties hereto irrevocably submit to the exclusive
jurisdiction of any California State or United States Federal Court
sitting in Los Angeles County, California over any action or proceeding
arising out of or relating to this Agreement. The parties
hereto further waive any objection to venue in the State of California
and
any objection to an action or proceeding in the State of California
on the
basis of forum non
conveniens.
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13.
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Miscellaneous. The
section headings contained in this Agreement are inserted as a matter
of
convenience and shall not be considered in interpreting or construing
this
Agreement. This Agreement may be executed concurrently in two
or more counterparts, each of which shall be deemed an original but
all of
which together shall constitute one and the same
instrument. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability
of the
remaining provisions. Time is of the essence of this Agreement
and the obligations of the parties
hereto.
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IN
WITNESS WHEREOF, the Company and the Consultant have executed this Agreement
as
of the day and year first written above.
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Company:
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Consultant:
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Knight
Consulting Corporation
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By:
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By:
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Xxxxx
Xxxxxx, CEO
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SCHEDULE
A TO CONSULTING AGREEMENT
Schedule
of Services and Deliverables
Consultant
shall provide the following Strategic Services:
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1.
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Business
Development and Planning: Develop an in-depth familiarization
with the Corporation's business objectives and bring to its attention
potential or actual opportunities that meet those objectives or logical
extensions thereof. Alert the Corporation to new or emerging
high potential forms of production and distribution that could either
be
acquired or developed internally. Comment on the Corporation's
corporate development including such factors as position in competitive
environment, financial performances vs. competition, strategies,
operational viability, etc. Identify prospective suitable merger
or
acquisition partners for the Corporation, perform appropriate diligence
investigations with respect thereto, advise the Corporation with
respect
to the desirability of pursuing such prospects, and assist the Corporation
in any negotiations which may ensue
therefrom.
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2.
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Corporate
Strategic Analysis: Evaluate business strategies and recommend
changes where appropriate.
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3.
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Introduction
to and Advice Regarding Relationships with Strategic
Partners: Arrange introductions to sources of funding
in respect of underwritings of private or public issues in such
jurisdictions as such broker-dealers or underwriters are authorized
to
conduct underwriting business.
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4.
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Provide
assistance with general public relations and promotion of the Company’s
worldwide interests when requested by the
Company.
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5.
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Provide
research services for the Company with the object of selecting suitable
target businesses for potential acquisition, joint venturing, strategic
alliances or district investment.
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6.
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Provide
general consultancy services relating to any investment banking services
provided by others supplemental to the herein mentioned activities
provided same are fully in conformity with and permitted under the
Securities Laws.
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7.
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Critically
evaluate the Corporation's performance in view of its corporate planning
and business objectives.
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8.
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Strategic
Contacts and formation of Strategic alliances and Introduction to
strategic partners and other alliance
candidates;
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9.
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Strategic
consulting regarding high level product planning, market development,
marketing and intellectual property planning; Business
development
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10.
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Introduction
to prospective customers for the Company's products or
services.
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11.
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Review
of existing and contemplated financing including lending and convertible
debt.
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The
Consultant will consult with the officers and employees of the company
concerning matters relating to the management and organization of the company,
their financial policies, the terms and conditions of employment, and generally
any matter arising out of the business affairs of the Company.
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Schedule
B to Consulting Agreement
Confidentiality
Agreement
This
Confidentiality Agreement (hereafter this “Agreement”), made this 1st day of
November
2006, by and between OL Funding, Inc., a Nevada corporation (the “Company”), and
Knight Consulting Corporation, a Kentucky corporation with its principal place
of business at 000 X. 0xx Xxxxxx,
Xxxxx 000,
Xxxxxxxxxx, XX 00000 (together with its agents and employees, collectively,
the
“Consultant”). Given that the Company and Consultant each desire to
make certain confidential information concerning the Company, its technology,
its investments, its processes, its marketing strategies, its capitalization
and
finances and its business as well as similar confidential information lawfully
possessed by the Consultant (collectively, the “Information”) for purposes
agreed to be legitimate and the Company and Consultant each agree to hold such
Information confidential pursuant to the terms of this Agreement, in
consideration of the mutual promises and other good and valuable consideration,
the receipt and sufficiency of which is acknowledged and with the intent to
be
legally bound hereby, the Company and the Consultant agree as
follows.
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1.
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The
Information includes, but is not limited to, (i) all information
on the
Company, (ii) any and all data and information given or made available
to
the Consultant by the Company for evaluation purposes, whether written
or
in machine-readable form, (iii) any and all of the Company’s and
Consultant’s notes, work papers, investigations, studies, computer
printouts, and any other work product including electronic data files,
regardless of nature containing any such data and information and
(iv) all
copies of any of the foregoing.
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2.
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The
Consultant and Company each understand that the Information is proprietary
to the Company and Consultant and each agrees to hold the Information
given by the other strictly confidential. The Company and
Consultant each agree that the Information shall be used only by
the
Company and Consultant and only for the purpose of reviewing and
evaluating the activities of the Company, and shall not be used for
any
other purpose or be disclosed to any third party. Neither the
Company nor Consultant shall have the right to make copies or hold
copies
or documents except for reports and notes which have been generated
by
them, which reports and notes shall be retained for their exclusive
use
and shall remain confidential.
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3.
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It
is understood that this Confidentiality Agreement shall not apply
to any
information otherwise covered herein (i) which is known to the party
against whom the claim of confidentiality is sought prior to the
date of
the Confidentiality Agreement, (ii) which is disclosed to the Consultant
or the Company by a third party who has not directly or indirectly
received such Information in violation of an agreement with a party
from
whom it was received or (iii) which is generally known within the
industry.
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4.
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The
Company and the Consultant each agree to be fully responsible and
liable
to the other for any and all damages caused by reason of disclosure
of
Information in violation of this Confidentiality Agreement by the
receiving party or any of its assigns or
successors.
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5.
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This
Confidentiality Agreement shall be governed by and construed in accordance
with the laws of the State of California and shall be enforceable
solely
by and be for the sole benefit of the Consultant and Company, their
successors and assigns.
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In
witness whereof, the Company and the Consultant have executed this Agreement
as
of the date above.
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Company: OL
Funding, Inc.
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Consultant: Knight
Consulting Corporation
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By:
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By:
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Xxxxx
Xxxxxx, CEO
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62
