BY LAW, ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN
THIS SUBSECTION ANY PUNITIVE DAMAGES.
9.13
ACKNOWLEDGEMENTS.
THE BORROWER HEREBY ACKNOWLEDGES THAT:
(A)
IT HAS BEEN ADVISED BY COUNSEL IN THE NEGOTIATION, EXECUTION AND
DELIVERY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS;
(B)
NEITHER THE AGENT NOR ANY LENDER HAS ANY FIDUCIARY RELATIONSHIP TO
THE BORROWER SOLELY BY VIRTUE OF ANY OF THE LOAN DOCUMENTS, AND THE RELATIONSHIP
PURSUANT TO THE LOAN DOCUMENTS BETWEEN THE AGENT AND THE LENDERS, ON ONE HAND,
AND THE BORROWER, ON THE OTHER HAND, IS SOLELY THAT OF CREDITOR AND DEBTOR; AND
(C)
NO JOINT VENTURE EXISTS AMONG THE LENDERS OR AMONG THE BORROWER
AND THE LENDERS.
9.14
HEADINGS.
SECTION HEADINGS HEREIN ARE INCLUDED FOR CONVENIENCE OF
REFERENCE ONLY AND SHALL NOT CONSTITUTE A PART OF THIS AGREEMENT FOR ANY OTHER
PURPOSE.
9.15
CONFIDENTIALITY.
THE LENDERS SHALL TAKE NORMAL AND REASONABLE
PRECAUTIONS TO MAINTAIN THE CONFIDENTIALITY OF ALL NON-PUBLIC INFORMATION
OBTAINED PURSUANT TO THE REQUIREMENTS OF THIS AGREEMENT WHICH HAS BEEN
IDENTIFIED IN WRITING AS SUCH BY ANY LOAN PARTY BUT MAY, IN ANY EVENT, MAKE
DISCLOSURES (A) REASONABLY REQUIRED BY ANY BONA FIDE TRANSFEREE, ASSIGNEE OR
PARTICIPANT IN CONNECTION WITH THE CONTEMPLATED TRANSFER OR ASSIGNMENT OF ANY OF
THE COMMITMENTS, THE LOANS, ANY PARTICIPATION IN LETTERS OF CREDIT OR
PARTICIPATION IN ANY OF THE FOREGOING OR (B) AS REQUIRED OR REQUESTED BY ANY
GOVERNMENTAL AGENCY OR REPRESENTATIVE THEREOF OR AS REQUIRED PURSUANT TO LEGAL
PROCESS OR (C) TO ITS ATTORNEYS AND ACCOUNTANTS OR (D) AS REQUIRED BY LAW OR
(E) IN CONNECTION WITH LITIGATION INVOLVING ANY LENDER OR THE AGENT; PROVIDED
THAT (I) SUCH TRANSFEREE, ASSIGNEE OR PARTICIPANT AGREES IN WRITING TO COMPLY
WITH THE PROVISIONS OF THIS SECTION 9.15 UNLESS SPECIFICALLY PROHIBITED BY
APPLICABLE LAW OR COURT ORDER AND (II) IN NO EVENT SHALL ANY LENDER OR THE AGENT
BE OBLIGATED OR REQUIRED TO RETURN ANY MATERIALS FURNISHED BY THE BORROWER OR
ITS SUBSIDIARIES.
9.16
PATRIOT ACT.
EACH LENDER SUBJECT TO TITLE III OF THE UNITING AND
STRENGTHENING AMERICA BY PROVIDING APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND
OBSTRUCT TERRORISM ACT OF 2001 (PUBLIC LAW 107-56) (THE "PATRIOT ACT") HEREBY
NOTIFIES THE BORROWER THAT, PURSUANT TO THE REQUIREMENTS OF THE PATRIOT ACT,
SUCH LENDER IS REQUIRED TO OBTAIN, VERIFY AND RECORD INFORMATION THAT IDENTIFIES
THE BORROWER, WHICH INFORMATION INCLUDES THE NAME AND ADDRESS OF THE BORROWER
AND OTHER INFORMATION THAT WILL ALLOW SUCH LENDER TO IDENTIFY THE BORROWER IN
ACCORDANCE WITH THE PATRIOT ACT.
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70
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered in Los Angeles, California by their proper and duly
authorized officers as of the day and year first above written.
PHYSICIANS FORMULA, INC.,
a New York corporation
By:
/s/ Joseph Jaeger
Name:
Joseph Jaeger
Title:
Chief Financial Officer
Address for Notices:
1055 West 8th Street
Azusa, CA 91702
Attention: Chief Executive Officer
Telephone: (626) 334-3395