Filed by Bowne Pure Compliance



 




Exhibit 10.1




(Multicurrency — Cross Border)




ISDA ®




International Swap Dealers Association, Inc.




MASTER AGREEMENT




dated as of December 19, 2007




	 	 	 	 	 
	WELLS FARGO BANK, N.A.

	 	and
	 	AMERICAN REPROGRAPHICS COMPANY, L.L.C.;
	 

	 	 	 	and AMERICAN REPROGRAPHICS COMPANY,
	 

	 	 	 	on a joint and several basis






have entered and/or anticipate entering into one or more transactions (each a “Transaction”) that
are or will be governed by this Master Agreement, which includes the schedule (the “Schedule”), and
the documents and other confirming evidence (each a “Confirmation”) exchanged between the parties
confirming those Transactions.



Accordingly, the parties agree as follows :—




1. Interpretation




(a) Definitions. The terms defined in Section 14 and in the Schedule will have the meanings therein
specified for the purpose of this Master Agreement.



(b) Inconsistency. In the event of any inconsistency between the provisions of the Schedule and the
other provisions of this Master Agreement, the Schedule will prevail. In the event of any
inconsistency between the provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purpose of the relevant Transaction.



(c) Single Agreement. All Transactions are entered into in reliance on the fact that this Master
Agreement and all Confirmations form a single agreement between the parties (collectively referred
to as this “Agreement”), and the parties would not otherwise enter into any Transactions.



2. Obligations




(a) General Conditions.





(i) Each party will make each payment or delivery specified in each Confirmation to be made
by it, subject to the other provisions of this Agreement.




(ii) Payments under this Agreement will be made on the due date for value on that date in
the place of the account specified in the relevant Confirmation or otherwise pursuant to
this Agreement, in freely transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than by payment), such
delivery will be made for receipt on the due date in the manner customary for the relevant
obligation unless otherwise specified in the relevant Confirmation or elsewhere in this
Agreement.




(iii) Each obligation of each party under Section 2(a)(i) is subject to (1) the condition
precedent that no Event of Default or Potential Event of Default with respect to the other
party has occurred and is continuing, (2) the condition precedent that no Early Termination
Date in respect of the relevant Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent
specified in this Agreement.



Copyright ã 1992 by International Swap Dealers Association, Inc.



 


 









 






(b) Change of Account. Either party may change its account for receiving a payment or
delivery by giving notice to the other party at least five Local Business Days prior to the
scheduled date for the payment or delivery to which such change applies unless such other
party gives timely notice of a reasonable objection to such change.




(c) Netting. If on any date amounts would otherwise be payable:—




(i) in the same currency; and




(ii) in respect of the same Transaction,



by each party to the other, then, on such date, each party’s obligation to make payment of any such
amount will be automatically satisfied and discharged and, if the aggregate amount that would
otherwise have been payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay to the other party the excess of the larger
aggregate amount over the smaller aggregate amount.



The parties may elect in respect of two or more Transactions that a net amount will be determined
in respect of all amounts payable on the same date in the same currency in respect of such
Transactions, regardless of whether such amounts are payable in respect of the same Transaction.
The election may be made in the Schedule or a Confirmation by specifying that subparagraph (ii)
above will not apply to the Transactions identified as being subject to the election, together with
the starting date (in which case subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for different groups of
Transactions and will apply separately to each pairing of Offices through which the parties make
and receive payments or deliveries.



(d) Deduction or Withholding for Tax.





(i) Gross-Up. All payments under this Agreement will be made without any deduction or
withholding for or on account of any Tax unless such deduction or withholding is required by
any applicable law, as modified by the practice of any relevant governmental revenue
authority, then in effect. If a party is so required to deduct or withhold, then that party
(“X”) will:—




(1) promptly notify the other party (“Y”) of such requirement;




(2) pay to the relevant authorities the full amount required to be deducted or withheld
(including the full amount required to be deducted or withheld from any additional
amount paid by X to Y under this Section 2(d)) promptly upon the earlier of determining
that such deduction or withholding is required or receiving notice that such amount has
been assessed against Y;




(3) promptly forward to Y an official receipt (or a certified copy), or other
documentation reasonably acceptable to Y, evidencing such payment to such authorities;
and




(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the payment to which
Y is otherwise entitled under this Agreement, such additional amount as is necessary to
ensure that the net amount actually received by Y (free and clear of Indemnifiable
Taxes, whether assessed against X or Y) will equal the full amount Y would have
received had no such deduction or withholding been required. However, X will not be
required to pay any additional amount to Y to the extent that it would not be required
to be paid but for:—




(A) the failure by Y to comply with or perform any agreement contained in Section
4(a)(i), 4(a)(iii) or 4(d); or




(B) the failure of a representation made by Y pursuant to Section 3(f) to be
accurate and true unless such failure would not have occurred but for (I) any
action taken by a taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is entered into
(regardless of wbether such action is taken or brought with respect to a party to
this Agreement) or (II) a Change in Tax Law.



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(ii) Liability. If: -




(1) X is required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, to make any deduction or withholding in respect of
which X would not be required to pay an additional amount to Y under Section
2(d)(i)(4);




(2) X does not so deduct or withhold; and




(3) a liability resulting from such Tax is assessed directly against X,




then, except to the extent Y has satisfied or then satisfies the liability resulting from
such Tax, Y will promptly pay to X the amount of such liability (including any related
liability for interest, but including any related liability for penalties only if Y has
failed to comply with or perform any agreement contained in Section 4(a)(i), 4(a)(iii) or
4(d)).



(e) Default Interest; Other Amounts. Prior to the occurrence or effective designation of an Early
Termination Date in respect of the relevant Transaction, a party that defaults in the performance
of any payment obligation will, to the extent permitted by law and subject to Section 6(c), be
required to pay interest (before as well as after judgment) on the overdue amount to the other
party on demand in the same currency as such overdue amount, for the period from (and including)
the original due date for payment to (but excluding) the date of actual payment, at the Default
Rate. Such interest will be calculated on the basis of daily compounding and the actual number of
days elapsed. If, prior to the occurrence or effective designation of an Early Termination Date in
respect of the relevant Transaction, a party defaults in the performance of any obligation required
to be settled by delivery, it will compensate the other party on demand if and to the extent
provided for in the relevant Confirmation or elsewhere in this Agreement.



3. Representations




Each party represents to the other party (which representations will be deemed to be repeated by each party on
each date on which a Transaction is entered into and, in the case of the representations in Section 3(f), at all
times until the termination of this Agreement) that:—



(a) Basic Representations.





(i) Status. It is duly organised and validly existing under the laws of the jurisdiction of
its organisation or incorporation and, if relevant under such laws, in good standing;




(ii) Powers. It has the power to execute this Agreement and any other documentation relating
to this Agreement to which it is a party, to deliver this Agreement and any other
documentation relating to this Agreement that it is required by this Agreement to deliver
and to perform its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;




(iii) No Violation or Conflict. Such execution, delivery and performance do not violate or
conflict with any law applicable to it, any provision of its constitutional documents, any
order or judgment of any court or other agency of government applicable to it or any of its
assets or any contractual restriction binding on or affecting it or any of its assets;




(iv) Consents. All governmental and other consents that are required to have been obtained
by it with respect to this Agreement or any Credit Support Document to which it is a party
have been obtained and are in full force and effect and all conditions of any such consents
have been complied with; and




(v) Obligations Binding. Its obligations under this Agreement and any Credit Support
Document to which it is a party constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms (subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting creditors’ rights generally
and subject, as to enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in equity or at law)).



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(b) Absence of Certain Events. No Event of Default or Potential Event of Default or, to its
knowledge, Termination Event with respect to it has occurred and is continuing and no such event or
circumstance would occur as a result of its entering into or performing its obligations under this
Agreement or any Credit Support Document to which it is a party.



(c) Absence of Litigation. There is not pending or, to its knowledge, threatened against it or any
of its Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely to affect the legality,
validity or enforceability against it of this Agreement or any Credit Support Document to which it
is a party or its ability to perform its obligations under this Agreement or such Credit Support
Document.



(d) Accuracy of Specified Information. All applicable information that is furnished in writing by
or on behalf of it to the other party and is identified for the purpose of this Section 3(d) in the
Schedule is, as of the date of the information, true, accurate and complete in every material
respect.



(e) Payer Tax Representation. Each representation specified in the Schedule as being made by it for
the purpose of this Section 3(e) is accurate and true.



(f) Payee Tax Representations. Each representation specified in the Schedule as being made by it
for the purpose of this Section 3(f) is accurate and true.



4. Agreements




Each party agrees with the other that, so long as either party has or may have any obligation under
this Agreement or under any Credit Support Document to which it is a party:—



(a) Furnish Specified Information. It will deliver to the other party or, in certain cases under
subparagraph (iii) below, to such government or taxing authority as the other party reasonably
directs:—




(i) any forms, documents or certificates relating to taxation specified in the Schedule or
any Confirmation;




(ii) any other documents specified in the Schedule or any Confirmation; and




(iii) upon reasonable demand by such other party, any form or document that may be required
or reasonably requested in writing in order to allow such other party or its Credit Support
Provider to make a payment under this Agreement or any applicable Credit Support Document
without any deduction or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate (so long as the completion, execution or submission of such
form or document would not materially prejudice the legal or commercial position of the
party in receipt of such demand), with any such form or document to be accurate and
completed in a manner reasonably satisfactory to such other party and to be executed and to
be delivered with any reasonably required certification,



in each case by the date specified in the Schedule or such Confirmation or, if none is specified,
as soon as reasonably practicable.



(b) Maintain Authorisations. It will use all reasonable efforts to maintain in full force and
effect all consents of any governmental or other authority that are required to be obtained by it
with respect to this Agreement or any Credit Support Document to which it is a party and will use
all reasonable efforts to obtain any that may become necessary in the future.



(c) Comply with Laws. It will comply in all material respects with all applicable laws and orders
to which it may be subject if failure so to comply would materially impair its ability to perform
its obligations under this Agreement or any Credit Support Document to which it is a party.



(d) Tax Agreement. It will give notice of any failure of a representation made by it under Section
3(f) to be accurate and true promptly upon learning of such failure.



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(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax levied or imposed upon
it or in respect of its execution or performance of this Agreement by a jurisdiction in which it is
incorporated, organised, managed and controlled, or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located (“Stamp Tax Jurisdiction”)
and will indemnify the other party against any Stamp Tax levied or imposed upon the other party or
in respect of the other party’s execution or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the other party.



5. Events of Default and Termination Events




(a) Events of Default. The occurrence at any time with respect to a party or, if applicable, any
Credit Support Provider of such party or any Specified Entity of such party of any of the following
events constitutes an event of default (an “Event of Default”) with respect to such party:—




(i) Failure to Pay or Deliver. Failure by the party to make, when due, any payment under
this Agreement or delivery under Section 2(a)(i) or 2(e) required to be made by it if such
failure is not remedied on or before the third Local Business Day after notice of such
failure is given to the party;




(ii) Breach of Agreement. Failure by the party to comply with or perform any agreement or
obligation (other than an obligation to make any payment under this Agreement or delivery
under Section 2(a)(i) or 2(e) or to give notice of a Termination Event or any agreement or
obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the
party in accordance with this Agreement if such failure is not remedied on or before the
thirtieth day after notice of such failure is given to the party;




(iii) Credit Support Default.




(1) Failure by the party or any Credit Support Provider of such party to comply with or
perform any agreement or obligation to be complied with or performed by it in
accordance with any Credit Support Document if such failure is continuing after any
applicable grace period has elapsed;




(2) the expiration or termination of such Credit Support Document or the failing or
ceasing of such Credit Support Document to be in full force and effect for the purpose
of this Agreement (in either case other than in accordance with its terms) prior to the
satisfaction of all obligations of such party under each Transaction to which such
Credit Support Document relates without the written consent of the other party; or




(3) the party or such Credit Support Provider disaffirms, disclaims, repudiates or
rejects, in whole or in part, or challenges the validity of, such Credit Support
Document;




(iv) Misrepresentation. A representation (other than a representation under Section 3(e) or
(f)) made or repeated or deemed to have been made or repeated by the party or any Credit
Support Provider of such party in this Agreement or any Credit Support Document proves to
have been incorrect or misleading in any material respect when made or repeated or deemed to
have been made or repeated;




(v) Default under Specified Transaction. The party, any Credit Support Provider of such
party or any applicable Specified Entity of such party (1) defaults under a Specified
Transaction and, after giving effect to any applicable notice requirement or grace period,
there occurs a liquidation of, an acceleration of obligations under, or an early termination
of, that Specified Transaction, (2) defaults, after giving effect to any applicable notice
requirement or grace period, in making any payment or delivery due on the last payment,
delivery or exchange date of, or any payment on early termination of, a Specified
Transaction (or such default continues for at least three Local Business Days if there is no
applicable notice requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is taken by any person
or entity appointed or empowered to operate it or act on its behalf);




(vi) Cross Default. If “Cross Default” is specified in the Schedule as applying to the
party, the occurrence or existence of (1) a default, event of default or other similar
condition or event (however described) in respect of such party, any Credit Support Provider of such party or any
applicable Specified Entity of such party under one or more agreements or instruments
relating to Specified Indebtedness of any of them (individually or collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which has resulted in such
Specified Indebtedness becoming, or becoming capable at such time of being declared, due and
payable under such agreements or instruments, before it would otherwise have been due and
payable or (2) a default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on the due date thereof
in an aggregate amount of not less than the applicable Threshold Amount under such
agreements or instruments (after giving effect to any applicable notice requirement or grace
period);



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(vii) Bankruptcy. The party, any Credit Support Provider of such party or any applicable
Specified Entity of such party:—




(1) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (2)
becomes insolvent or is unable to pay its debts or fails or admits in writing its
inability generally to pay its debts as they become due; (3) makes a general
assignment, arrangement or composition with or for the benefit of its creditors; (4)
institutes or has instituted against it a proceeding seeking a judgment of insolvency
or bankruptcy or any other relief under any bankruptcy or insolvency law or other
similar law affecting creditors’ rights, or a petition is presented for its winding-up
or liquidation, and, in the case of any such proceeding or petition instituted or
presented against it, such proceeding or petition (A) results in a judgment of
insolvency or bankruptcy or the entry of an order for relief or the making of an order
for its winding-up or liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or presentation thereof; (5)
has a resolution passed for its winding-up, official management or liquidation (other
than pursuant to a consolidation, amalgamation or merger); (6) seeks or becomes subject
to the appointment of an administrator, provisional liquidator, conservator, receiver,
trustee, custodian or other similar official for it or for all or substantially all its
assets; (7) has a secured party take possession of all or substantially all its assets
or has a distress, execution, attachment, sequestration or other legal process levied,
enforced or sued on or against all or substantially all its assets and such secured
party maintains possession, or any such process is not dismissed, discharged, stayed or
restrained, in each case within 30 days thereafter; (8) causes or is subject to any
event with respect to it which, under the applicable laws of any jurisdiction, has an
analogous effect to any of the events specified in clauses (1) to (7) (inclusive); or
(9) takes any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the foregoing acts; or




(viii) Merger Without Assumption. The party or any Credit Support Provider of such party
consolidates or amalgamates with, or merges with or into, or transfers all or substantially
all its assets to, another entity and, at the time of such consolidation, amalgamation,
merger or transfer:—




(1) the resulting, surviving or transferee entity fails to assume all the obligations
of such party or such Credit Support Provider under this Agreement or any Credit
Support Document to which it or its predecessor was a party by operation of law or
pursuant to an agreement reasonably satisfactory to the other party to this Agreement;
or




(2) the benefits of any Credit Support Document fail to extend (without the consent of
the other party) to the performance by such resulting, surviving or transferee entity
of its obligations under this Agreement.



(b) Termination Events. The occurrence at any time with respect to a party or, if applicable, any
Credit
Support Provider of such party or any Specified Entity of such party of any event specified below
constitutes
an Illegality if the event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax
Event Upon Merger if the event is specified in (iii) below, and, if specified to be applicable, a
Credit Event
Upon Merger if the event is specified pursuant to (iv) below or an Additional Termination Event if
the event is specified pursuant to (v) below:—




(i) Illegality. Due to the adoption of, or any change in, any applicable law after the date
on which a Transaction is entered into, or due to the promulgation of, or any change in, the
interpretation by any court, tribunal or regulatory authority with competent jurisdiction of
any applicable law after such date, it becomes unlawful (other than as a result of a breach
by the party of Section 4(b)) for such party (which will be the Affected Party):—



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(1) to perform any absolute or contingent obligation to make a payment or delivery or
to receive a payment or delivery in respect of such Transaction or to comply with any
other material provision of this Agreement relating to such Transaction; or




(2) to perform, or for any Credit Support Provider of such party to perform, any
contingent or other obligation which the party (or such Credit Support Provider) has
under any Credit Support Document relating to such Transaction;




(ii) Tax Event. Due to (x) any action taken by a taxing authority, or brought in a court of
competent jurisdiction, on or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with respect to a party to this
Agreement) or (y) a Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding Scheduled Payment
Date (1) be required to pay to the other party an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest under Section
2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of interest under Section
2(e), 6(d)(ii) or 6(e)) and no additional amount is required to be paid in respect of such
Tax under Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A) or (B));




(iii) Tax Event Upon Merger. The party (the “Burdened Party”) on the next succeeding
Scheduled Payment Date will either (1) be required to pay an additional amount in respect of
an Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest under Section
2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from which an-amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which the other party is
not required to pay an additional amount (other than by reason of Section 2(d)(i)(4)(A) or
(B)), in either case as a result of a party consolidating or amalgamating with, or merging
with or into, or transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event described in
Section 5 (a)(viii);




(iv) Credit Event Upon Merger. If “Credit Event Upon Merger” is specified in the Schedule as
applying to the party, such party (“X”), any Credit Support Provider of X or any applicable
Specified Entity of X consolidates or amalgamates with, or merges with or into, or transfers
all or substantially all its assets to, another entity and such action does not constitute
an event described in Section 5(a)(viii) but the creditworthiness of the resulting,
surviving or transferee entity is materially weaker than that of X, such Credit Support
Provider or such Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate, will be the Affected
Party); or




(v) Additional Termination Event. If any “Additional Termination Event” is specified in the
Schedule or any Confirmation as applying, the occurrence of such event (and, in such event,
the
Affected Party or Affected Parties shall be as specified for such Additional Termination
Event in
the Schedule or such Confirmation).



(c) Event of Default and Illegality. If an event or circumstance which would otherwise constitute
or give rise to an Event of Default also constitutes an Illegality, it will be treated as an
Illegality and will not constitute an Event of Default.



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6. Early Termination




(a) Right to Terminate Following Event of Default. If at any time an Event of Default with
respect to a party (the “Defaulting Party”) has occurred and is then continuing, the other party
(the “Non-defaulting Party”) may, by not more than 20 days notice to the Defaulting Party
specifying the relevant Event of Default, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all outstanding Transactions. If, however,
“Automatic Early Termination” is specified in the Schedule as applying to a party, then an Early
Termination Date in respect of all outstanding Transactions will occur immediately upon the
occurrence with respect to such party of an Event of Default specified in Section 5(a)(vii)(1),
(3), (5), (6) or, to the extent analogous thereto, (8), and as of the time immediately preceding
the institution of the relevant proceeding or the presentation of the relevant petition upon the
occurrence with respect to such party of an Event of Default specified in Section 5(a)(vii)(4) or,
to the extent analogous thereto, (8).



(b) Right to Terminate Following Termination Event.





(i) Notice. If a Termination Event occurs, an Affected Party will, promptly upon becoming
aware of it, notify the other party, specifying the nature of that Termination Event and
each Affected Transaction and will also give such other information about that Termination
Event as the other party may reasonably require.




(ii) Transfer to Avoid Termination Event. If either an Illegality under Section 5(b)(i)(1)
or a Tax Event occurs and there is only one Affected Party, or if a Tax Event Upon Merger
occurs and the Burdened Party is the Affected Party, the Affected Party will, as a condition
to its right to designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss, excluding immaterial,
incidental expenses) to transfer within 20 days after it gives notice under Section 6(b)(i)
all its rights and obligations under this Agreement in respect of the Affected Transactions
to another of its Offices or Affiliates so that such Termination Event ceases to exist.




If the Affected Party is not able to make such a transfer it will give notice to the other
party to that effect within such 20 day period, whereupon the other party may effect such a
transfer within 30 days after the notice is given under Section 6(b)(i).




Any such transfer by a party under this Section 6(b)(ii) will be subject to and conditional
upon the prior written consent of the other party, which consent will not be withheld if
such other party’s policies in effect at such time would permit it to enter into
transactions with the transferee on the terms proposed.




(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a Tax Event occurs
and there are two Affected Parties, each party will use all reasonable efforts to reach
agreement within 30 days after notice thereof is given under Section 6(b)(i) on action to
avoid that Termination Event.




(iv) Right to Terminate. If:—




(1) a transfer under Section 6(b)(ii) or an agreement under Section 6(b)(iii), as the
case may be, has not been effected with respect to all Affected Transactions within 30
days after an Affected Party gives notice under Section 6(b)(i); or




(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger or an Additional
Termination Event occurs, or a Tax Event Upon Merger occurs and the Burdened Party is
not the Affected Party,




either party in the case of an Illegality, the Burdened Party in the case of a Tax Event
Upon Merger, any Affected Party in the case of a Tax Event or an Additional Termination
Event if there is more than one Affected Party, or the party which is not the Affected Party
in the case of a Credit Event Upon Merger or an Additional Termination Event if there is
only one Affected Party may, by not more than 20 days notice to the other party and provided
that the relevant Termination Event is then continuing, designate a day not earlier than the day such notice is effective as an Early
Termination Date in respect of all Affected Transactions.



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(c) Effect of Designation.




(i) If notice designating an Early Termination Date is given under Section 6(a) or (b), the
Early Termination Date will occur on the date so designated, whether or not the relevant
Event of Default or Termination Event is then continuing.




(ii) Upon the occurrence or effective designation of an Early Termination Date, no further
payments or deliveries under Section 2(a)(i) or 2(e) in respect of the Terminated
Transactions will be required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).



(d) Calculations.




(i) Statement. On or as soon as reasonably practicable following the occurrence of an Early
Termination Date, each party will make the calculations on its part, if any, contemplated by
Section 6(e) and will provide to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant quotations and specifying any amount
payable under Section 6(e)) and (2) giving details of the relevant account to which any
amount payable to it is to be paid. In the absence of written confirmation from the source
of a quotation obtained in determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the existence and accuracy of such
quotation.




(ii) Payment Date. An amount calculated as being due in respect of any Early Termination
Date under Section 6(e) will be payable on the day that notice of the amount payable is
effective (in the case of an Early Termination Date which is designated or occurs as a
result of an Event of Default) and on the day which is two Local Business Days after the day
on which notice of the amount payable is effective (in the case of an Early Termination Date
which is designated as a result of a Termination Event). Such amount will be paid together
with (to the extent permitted under applicable law) interest thereon (before as well as
after judgment) in the Termination Currency, from (and including) the relevant Early
Termination Date to (but excluding) the date such amount is paid, at the Applicable Rate.
Such interest will be calculated on the basis of daily compounding and the actual number of
days elapsed.



(e) Payments on Early Termination. If an Early Termination Date occurs, the following provisions
shall apply based on the parties’ election in the Schedule of a payment measure, either “Market
Quotation” or “Loss”, and a payment method, either the “First Method” or the “Second Method”. If
the parties fail to designate a payment measure or payment method in the Schedule, it will be
deemed that “Market Quotation” or the “Second Method”, as the case may be, shall apply. The amount,
if any, payable in respect of an Early Termination Date and determined pursuant to this Section
will be subject to any Set-off.




(i) Events of Default. If the Early Termination Date results from an Event of Default:—




(1) First Method and Market Quotation. If the First Method and Market Quotation apply,
the Defaulting Party will pay to the Non-defaulting Party the excess, if a positive
number, of (A) the sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination Currency
Equivalent of the Unpaid Amounts owing to the Non-defaulting Party over (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to the Defaulting Party.




(2) First Method and Loss. If the First Method and Loss apply, the Defaulting Party
will pay to the Non-defaulting Party, if a positive number, the Non-defaulting Party’s
Loss in respect of this Agreement.




(3) Second Method and Market Quotation. If the Second Method and Market Quotation
apply, an amount will be payable equal to (A) the sum of the Settlement Amount
(determined by the Non-defaulting Party) in respect of the Terminated Transactions and
the Termination Currency Equivalent of the Unpaid Amounts owing to the Non-defaulting
Party less (B) the Termination Currency Equivalent of the Unpaid Amounts owing to the
Defaulting Party. If that amount is a positive number, the Defaulting Party will pay it
to the Non-defaulting Party; if it is a negative number, the Non-defaulting Party will
pay the absolute value of that amount to the Defaulting Party.



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(4) Second Method and Loss. If the Second Method and Loss apply, an amount will be payable
equal to the Non-defaulting Party’s Loss in respect of this Agreement. If that amount is a
positive number, the Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute value of that amount to the
Defaulting Party.



(ii) Termination Events. If the Early Termination Date results from a Termination Event:—




(1) One Affected Party. If there is one Affected Party, the amount payable will be determined
in accordance with Section 6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4), if
Loss applies, except that, in either case, references to the Defaulting Party and to the
Non-defaulting Party will be deemed to be references to the Affected Party and the party which
is not the Affected Party, respectively, and, if Loss applies and fewer than all the
Transactions are being terminated, Loss shall be calculated in respect of all Terminated
Transactions.




(2) Two Affected Parties. If there are two Affected Parties:—




(A) if Market Quotation applies, each party will determine a Settlement Amount in respect
of the Terminated Transactions, and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of the party with the higher
Settlement Amount (“X”) and the Settlement Amount of the party with the lower Settlement
Amount (“Y”) and (b) the Termination Currency Equivalent of the Unpaid Amounts owing to X
less (II) the Termination Currency Equivalent of the Unpaid Amounts owing to Y; and




(B) if Loss applies, each party will determine its Loss in respect of this Agreement (or,
if fewer than all the Transactions are being terminated, in respect of all Terminated
Transactions) and an amount will be payable equal to one-half of the difference between
the Loss of the party with the higher Loss (“X”) and the Loss of the party with the lower
Loss (“Y”).




If the amount payable is a positive number, Y will pay it to X; if it is a negative number, X
will pay the absolute value of that amount to Y.



(iii) Adjustment for Bankruptcy. In circumstances where an Early Termination Date occurs because
“Automatic Early Termination” applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are appropriate and permitted by law to reflect
any payments or deliveries made by one party to the other under this Agreement (and retained by
such other party) during the period from the relevant Early Termination Date to the date for
payment determined under Section 6(d)(ii).



(iv) Pre-Estimate. The parties agree that if Market Quotation applies an amount recoverable under
this Section 6(e) is a reasonable pre-estimate of loss and not a penalty. Such amount is payable
for the loss of bargain and the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any additional damages as a
consequence of such losses.



7. Transfer




Subject to Section 6(b)(ii), neither this Agreement nor any interest or obligation in or under this
Agreement may be transferred (whether by way of security or otherwise) by either party without the
prior written consent of the other party, except that:—



(a) a party may make such a transfer of this Agreement pursuant to a consolidation or amalgamation
with, or merger with or into, or transfer of all or substantially all its assets to, another entity
(but without prejudice to any other right or remedy under this Agreement); and



(b) a party may make such a transfer of all or any part of its interest in any amount payable to it
from a Defaulting Party under Section 6(e).



Any purported transfer that is not in compliance with this Section will be void.



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8. Contractual Currency




(a) Payment in the Contractual Currency. Each payment under this Agreement will be made in the
relevant currency specified in this Agreement for that payment (the “Contractual Currency”). To the
extent permitted by applicable law, any obligation to make payments under this Agreement in the
Contractual Currency will not be discharged or satisfied by any tender in any currency other than
the Contractual Currency, except to the extent such tender results in the actual receipt by the
party to which payment is owed, acting in a reasonable manner and in good faith in converting the
currency so tendered into the Contractual Currency, of the full amount in the Contractual Currency
of all amounts payable in respect of this Agreement. If for any reason the amount in the
Contractual Currency so received falls short of the amount in the Contractual Currency payable in
respect of this Agreement, the party required to make the payment will, to the extent permitted by
applicable law, immediately pay such additional amount in the Contractual Currency as may be
necessary to compensate for the shortfall. If for any reason the amount in the Contractual Currency
so received exceeds the amount in the Contractual Currency payable in respect of this Agreement,
the party receiving the payment will refund promptly the amount of such excess.



(b) Judgments. To the extent permitted by applicable law, if any judgment or order expressed in a
currency other than the Contractual Currency is rendered (i) for the payment of any amount owing in
respect of this Agreement, (ii) for the payment of any amount relating to any early termination in
respect of this Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking recovery, after recovery in
full of the aggregate amount to which such party is entitled pursuant to the judgment or order,
will be entitled to receive immediately from the other party the amount of any shortfall of the
Contractual Currency received by such party as a consequence of sums paid in such other currency
and will refund promptly to the other party any excess of the Contractual Currency received by such
party as a consequence of sums paid in such other currency if such shortfall or such excess arises
or results from any variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such judgment or order and
the rate of exchange at which such party is able, acting in a reasonable manner and in good faith
in converting the currency received into the Contractual Currency, to purchase the Contractual
Currency with the amount of the currency of the judgment or order actually received by such party.
The term “rate of exchange” includes, without limitation, any premiums and costs of exchange
payable in connection with the purchase of or conversion into the Contractual Currency.



(c) Separate Indemnities. To the extent permitted by applicable law, these indemnities constitute
separate and independent obligations from the other obligations in this Agreement, will be
enforceable as separate and independent causes of action, will apply notwithstanding any indulgence
granted by the party to which any payment is owed and will not be affected by judgment being
obtained or claim or proof being made for any other sums payable in respect of this Agreement.



(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient for a party to
demonstrate that it would have suffered a loss had an actual exchange or purchase been made.



9. Miscellaneous




(a) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the
parties with respect to its subject matter and supersedes all oral communication and prior writings
with respect thereto.



(b) Amendments. No amendment, modification or waiver in respect of this Agreement will be effective
unless in writing (including a writing evidenced by a facsimile transmission) and executed by each
of the parties or confirmed by an exchange of telexes or electronic messages on an electronic
messaging system.



(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations
of the parties under this Agreement will survive the termination of any Transaction.



(d) Remedies Cumulative. Except as provided in this Agreement, the rights, powers, remedies and
privileges provided in this Agreement are cumulative and not exclusive of any rights, powers,
remedies and privileges provided by law.



(e) Counterparts and Confirmations.





(i) This Agreement (and each amendment, modification and waiver in respect of it) may be
executed and delivered in counterparts (including by facsimile transmission), each of which will be
deemed an original.



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(ii) The parties intend that they are legally bound by the terms of each Transaction from
the moment they agree to those terms (whether orally or otherwise). A Confirmation shall be
entered into as soon as practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange of telexes or by an
exchange of electronic messages on an electronic messaging system, which in each case will
be sufficient for all purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation.



(f) No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect
of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of
any right, power or privilege will not be presumed to preclude any subsequent or further exercise,
of that right, power or privilege or the exercise of any other right, power or privilege.



(g) Headings. The headings used in this Agreement are for convenience of reference only and are not
to affect the construction of or to be taken into consideration in interpreting this Agreement.



10. Offices; Multibranch Parties




(a) If Section 10(a) is specified in the Schedule as applying, each party that enters into a
Transaction through an Office other than its head or home office represents to the other party
that, notwithstanding the place of booking office or jurisdiction of incorporation or organisation
of such party, the obligations of such party are the same as if it had entered into the Transaction
through its head or home office. This representation will be deemed to be repeated by such party on
each date on which a Transaction is entered into.



(b) Neither party may change the Office through which it makes and receives payments or deliveries
for the purpose of a Transaction without the prior written consent of the other party.



(c) If a party is specified as a Multibranch Party in the Schedule, such Multibranch Party may make
and receive payments or deliveries under any Transaction through any Office listed in the Schedule,
and the Office through which it makes and receives payments or deliveries with respect to a
Transaction will be specified in the relevant Confirmation.



11. Expenses




A Defaulting Party will, on demand, indemnify and hold harmless the other party for and against all
reasonable out-of-pocket expenses, including legal fees and Stamp Tax, incurred by such other party
by reason of the enforcement and protection of its rights under this Agreement or any Credit
Support Document to which the Defaulting Party is a party or by reason of the early termination of
any Transaction, including, but not limited to, costs of collection.



12. Notices




(a) Effectiveness. Any notice or other communication in respect of this Agreement may be given in
any manner set forth below (except that a notice or other communication under Section 5 or 6 may
not be given by facsimile transmission or electronic messaging system) to the address or number or
in accordance with the electronic messaging system details provided (see the Schedule) and will be
deemed effective as indicated:—




(i) if in writing and delivered in person or by courier, on the date it is delivered;




(ii) if sent by telex, on the date the recipient’s answerback is received;




(iii) if sent by facsimile transmission, on the date that transmission is received by a
responsible employee of the recipient in legible form (it being agreed that the burden of
proving receipt will be on the sender and will not be met by a transmission report generated
by the sender’s facsimile machine);




(iv) if sent by certified or registered mail (airmail, if overseas) or the equivalent
(return receipt requested), on the date that mail is delivered or its delivery is attempted;
or



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(v) if sent by electronic messaging system, on the date that electronic message is received,



unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a
Local Business Day or that communication is delivered (or attempted) or received, as applicable,
after the close of business on a Local Business Day, in which case that communication shall be
deemed given and effective on the first following day that is a Local Business Day.



(b) Change of Addresses. Either party may by notice to the other change the address, telex or
facsimile number or electronic messaging system details at which notices or other communications
are to be given to it.



13. Governing Law and Jurisdiction




(a) Governing Law. This Agreement will be governed by and construed in accordance with the law
specified in the Schedule.



(b) Jurisdiction. With respect to any suit, action or proceedings relating to this Agreement
(“Proceedings”), each party irrevocably:—




(i) submits to the jurisdiction of the English courts, if this Agreement is expressed to be governed by English law, or to the non-exclusive jurisdiction of the courts of the State of New York
and the United States District Court located in the Borough of Manhattan in New York City, if this
Agreement is expressed to be governed by the laws of the State of New York; and




(ii) waives any objection which it may have at any time to the laying of venue of any
Proceedings brought in any such court, waives any claim that such Proceedings have been
brought in an inconvenient forum and further waives the right to object, with respect to
such Proceedings, that such court does not have any jurisdiction over such party.



Nothing in this Agreement precludes either party from bringing Proceedings in any other
jurisdiction (outside, if this Agreement is expressed to be governed by English law, the
Contracting States, as defined in Section 1(3) of the Civil Jurisdiction and Judgments Act 1982 or
any modification, extension or re-enactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in
any other jurisdiction.



(c) Service of Process. Each party irrevocably appoints the Process Agent (if any) specified
opposite its name in the Schedule to receive, for it and on its behalf, service of process in any
Proceedings. If for any reason any party’s Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process agent acceptable to
the other party. The parties irrevocably consent to service of process given in the manner provided
for notices in Section 12. Nothing in this Agreement will affect the right of either party to serve
process in any other manner permitted by law.



(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent permitted by
applicable law, with respect to itself and its revenues and assets (irrespective of their use or
intended use), all immunity on the grounds of sovereignty or other similar grounds from (i) suit,
(ii) jurisdiction of any court, (iii) relief by way of injunction, order for specific performance
or for recovery of property, (iv) attachment of its assets (whether before or after judgment) and
(v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise
be entitled in any Proceedings in the courts of any jurisdiction and irrevocably agrees, to the
extent permitted by applicable law, that it will not claim any such immunity in any Proceedings.



14. Definitions




As used in this Agreement:—




“Additional Termination Event” has the meaning specified in Section 5(b).



“Affected Party” has the meaning specified in Section 5(b).



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“Affected Transactions” means (a) with respect to any Termination Event consisting of an
Illegality, Tax Event or Tax Event Upon Merger, all Transactions affected by the occurrence of such
Termination Event and (b) with respect to any other Termination Event, all Transactions.



“Affiliate” means, subject to the Schedule, in relation to any person, any entity controlled,
directly or indirectly, by the person, any entity that controls, directly or indirectly, the person
or any entity directly or indirectly under common control with the person. For this purpose,
“control” of any entity or person means ownership of a majority of the voting power of the entity
or person.



“Applicable Rate” means:—




(a) in respect of obligations payable or deliverable (or which would have been but for Section
2(a)(iii)) by a Defaulting Party, the Default Rate;



(b) in respect of an obligation to pay an amount under Section 6(e) of either party from and after
the date (determined in accordance with Section 6(d)(ii)) on which that amount is payable, the
Default Rate;



(c) in respect of all other obligations payable or deliverable (or which would have been but for
Section 2(a)(iii)) by a Non-defaulting Party, the Non-default Rate; and



(d) in all other cases, the Termination Rate.



“Burdened Party” has the meaning specified in Section 5(b).




“Change in Tax Law” means the enactment, promulgation, execution or ratification of, or any change
in or amendment to, any law (or in the application or official interpretation of any law) that
occurs on or after the date on which the relevant Transaction is entered into.



“consent” includes a consent, approval, action, authorisation, exemption, notice, filing,
registration or exchange control consent.



“Credit Event Upon Merger” has the meaning specified in Section 5(b).



“Credit Support Document” means any agreement or instrument that is specified as such in this
Agreement.



“Credit Support Provider” has the meaning specified in the Schedule.



“Default Rate” means a rate per annum equal to the cost (without proof or evidence of any actual
cost) to the relevant payee (as certified by it) if it were to fund or of funding the relevant
amount plus 1% per annum.



“Defaulting Party” has the meaning specified in Section 6(a).



“Early Termination Date” means the date determined in accordance with Section 6(a) or 6(b)(iv).



“Event of Default” has the meaning specified in Section 5(a) and, if applicable, in the Schedule.



“Illegality” has the meaning specified in Section 5(b).



“Indemnifiable Tax” means any Tax other than a Tax that would not be imposed in respect of a
payment under this Agreement but for a present or former connection between the jurisdiction of the
government or taxation authority imposing such Tax and the recipient of such payment or a person
related to such recipient (including, without limitation, a connection arising from such recipient
or related person being or having been a citizen or resident of such jurisdiction, or being or
having been organised, present or engaged in a trade or business in such jurisdiction, or having or
having had a permanent establishment or fixed place of business in such jurisdiction, but excluding
a connection arising solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this Agreement or a Credit
Support Document).



“law” includes any treaty, law, rule or regulation (as modified, in the case of tax matters, by the
practice of any relevant governmental revenue authority) and “lawful” and “unlawful” will be
construed accordingly.



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“Local Business Day” means, subject to the Schedule, a day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency deposits) (a) in relation to
any obligation under Section 2(a)(i), in the place(s) specified in the relevant Confirmation or, if
not so specified, as otherwise agreed by the parties in writing or determined pursuant to
provisions contained, or incorporated by reference, in this Agreement, (b) in relation to any other
payment, in the place where the relevant account is located and, if different, in the principal
financial centre, if any, of the currency of such payment, (c) in relation to any notice or other
communication, including notice contemplated under Section 5(a)(i), in the city specified in the
address for notice provided by the recipient and, in the case of a notice contemplated by Section
2(b), in the place where the relevant new account is to be located and (d) in relation to Section
5(a)(v)(2), in the relevant locations for performance with respect to such Specified Transaction.



“Loss” means, with respect to this Agreement or one or more Terminated Transactions, as the case
may be, and a party, the Termination Currency Equivalent of an amount that party reasonably
determines in good faith to be its total losses and costs (or gain, in which case expressed as a
negative number) in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost of funding or, at
the election of such party but without duplication, loss or cost incurred as a result of its
terminating, liquidating, obtaining or reestablishing any hedge or related trading position (or any
gain resulting from any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each applicable condition
precedent) on or before the relevant Early Termination Date and not made, except, so as to avoid
duplication, if Section 6(e)(i)(l) or (3) or 6(e)(ii)(2)(A) applies. Loss does not include a
party’s legal fees and out-of-pocket expenses referred to under Section 11. A party will determine
its Loss as of the relevant Early Termination Date, or, if that is not reasonably practicable, as
of the earliest date thereafter as is reasonably practicable. A party may (but need not) determine
its Loss by reference to quotations of relevant rates or prices from one or more leading dealers in
the relevant markets.



“Market Quotation” means, with respect to one or more Terminated Transactions and a party making
the determination, an amount determined on the basis of quotations from Reference Market-makers.
Each quotation will be for an amount, if any, that would be paid to such party (expressed as a
negative number) or by such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document with respect to the
obligations of such party) and the quoting Reference Market-maker to enter into a transaction (the
“Replacement Transaction”) that would have the effect of preserving for such party the economic
equivalent of any payment or delivery (whether the underlying obligation was, absolute or
contingent and assuming the satisfaction of each applicable condition precedent) by the parties
under Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated Transactions
that would, but for the occurrence of the relevant Early Termination Date, have been required after
that date. For this purpose, Unpaid Amounts in respect of the Terminated Transaction or group of
Terminated Transactions are to be excluded but, without limitation, any payment or delivery that
would, but for the relevant Early Termination Date, have been required (assuming satisfaction of
each applicable condition precedent) after that Early Termination Date is to be included. The
Replacement Transaction would be subject to such documentation as such party and the Reference
Market-maker may, in good faith, agree. The party making the determination (or its agent) will
request each Reference Market-maker to provide its quotation to the extent reasonably practicable
as of the same day and time (without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as of which those
quotations are to be obtained will be selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after consultation with the
other. If more than three quotations are provided, the Market Quotation will be the arithmetic mean
of the quotations, without regard to the quotations having the highest and lowest values. If
exactly three such quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if more than one quotation
has the same highest value or lowest value, then one of such quotations shall be disregarded. If
fewer than three quotations are provided, it will be deemed that the Market Quotation in respect of
such Terminated Transaction or group of Terminated Transactions cannot be determined.



“Non-default Rate” means a rate per annum equal to the cost (without proof or evidence of any
actual cost) to the Non-defaulting Party (as certified by it) if it were to fund the relevant
amount.



“Non-defaulting Party” has the meaning specified in Section 6(a).



“Office” means a branch or office of a party, which may be such party’s head or home office.



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“Potential Event of Default” means any event which, with the giving of notice or the lapse of time
or both, would constitute an Event of Default.



“Reference Market-makers” means four leading dealers in the relevant market selected by the party
determining a Market Quotation in good faith (a) from among dealers of the highest credit standing
which satisfy all the criteria that such party applies generally at the time in deciding whether to
offer or to make an extension of credit and (b) to the extent practicable, from among such dealers
having an office in the same city.



“Relevant Jurisdiction” means, with respect to a party, the jurisdictions (a) in which the party is
incorporated, organised, managed and controlled or considered to have its seat, (b) where an Office
through which the party is acting for purposes of this Agreement is located, (c) in which the party
executes this Agreement and (d) in relation to any payment, from or through which such payment is
made.



“Scheduled Payment Date” means a date on which a payment or delivery is to be made under Section
2(a)(i) with respect to a Transaction.



“Set-off’ means set-off, offset, combination of accounts, right of retention or withholding or
similar right or requirement to which the payer of an amount under Section 6 is entitled or subject
(whether arising under this Agreement, another contract, applicable law or otherwise) that is
exercised by, or imposed on, such payer.



“Settlement Amount” means, with respect to a party and any Early Termination Date, the sum of:—



(a) the Termination Currency Equivalent of the Market Quotations (whether positive or negative) for
each Terminated Transaction or group of Terminated Transactions for which a Market Quotation is
determined; and



(b) such party’s Loss (whether positive or negative and without reference to any Unpaid Amounts)
for each Terminated Transaction or group of Terminated Transactions for which a Market Quotation
cannot be determined or would not (in the reasonable belief of the party making the determination)
produce a commercially reasonable result.



“Specified Entity” has the meaning specified in the Schedule.



“Specified Indebtedness” means, subject to the Schedule, any obligation (whether present or
future, contingent or otherwise, as principal or surety or otherwise) in respect of borrowed money.



“Specified Transaction” means, subject to the Schedule, (a) any transaction (including an agreement
with respect thereto) now existing or hereafter entered into between one party to this Agreement
(or any Credit Support Provider of such party or any applicable Specified Entity of such party) and
the other party to this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or
equity index option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including any option with
respect to any of these transactions), (b) any combination of these transactions and (c) any other
transaction identified as a Specified Transaction in this Agreement or the relevant confirmation.



“Stamp Tax” means any stamp, registration, documentation or similar tax.



“Tax” means any present or future tax, levy, impost, duty, charge, assessment or fee of any nature
(including interest, penalties and additions thereto) that is imposed by any government or other
taxing authority in respect of any payment under this Agreement other than a stamp, registration,
documentation or similar tax.



“Tax Event” has the meaning specified in Section 5(b).



“Tax Event Upon Merger” has the meaning specified in Section 5(b).



“Terminated Transactions” means with respect to any Early Termination Date (a) if resulting from a
Termination Event, all Affected Transactions and (b) if resulting from an Event of Default, all
Transactions (in either case) in effect immediately before the effectiveness of the notice designating that
Early Termination Date (or, if “Automatic Early Termination” applies, immediately before that Early Termination
Date).



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“Termination Currency” has the meaning specified in the Schedule.



“Termination Currency Equivalent” means, in respect of any amount denominated in the Termination
Currency, such Termination Currency amount and, in respect of any amount denominated in a currency
other than the Termination Currency (the “Other Currency”), the amount in the Termination Currency
determined by the party making the relevant determination as being required to purchase such amount
of such Other Currency as at the relevant Early Termination Date, or, if the relevant Market
Quotation or Loss (as the case may be), is determined as of a later date, that later date, with the
Termination Currency at the rate equal to the spot exchange rate of the foreign exchange agent
(selected as provided below) for the purchase of such Other Currency with the Termination Currency
at or about 11:00 a.m. (in the city in which such foreign exchange agent is located) on such date
as would be customary for the determination of such a rate for the purchase of such Other Currency
for value on the relevant Early Termination Date or that later date. The foreign exchange agent
will, if only one party is obliged to make a determination under Section 6(e), be selected in good
faith by that party and otherwise will be agreed by the parties.



“Termination Event” means an Illegality, a Tax Event or a Tax Event Upon Merger or, if specified to
be applicable, a Credit Event Upon Merger or an Additional Termination Event.



“Termination Rate” means a rate per annum equal to the arithmetic mean of the cost (without proof
or evidence of any actual cost) to each party (as certified by such party) if it were to fund or of
funding such amounts.



“Unpaid Amounts” owing to any party means, with respect to an Early Termination Date, the aggregate
of (a) in respect of all Terminated Transactions, the amounts that became payable (or that would
have become payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or prior to
such Early Termination Date and which remain unpaid as at such Early Termination Date and (b) in
respect of each Terminated Transaction, for each obligation under Section 2(a)(i) which was (or
would have been but for Section 2(a)(iii)) required to be settled by delivery to such party on or
prior to such Early Termination Date and which has not been so settled as at such Early Termination
Date, an amount equal to the fair market \value of that which was (or would have been) required to
be delivered as of the originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such amounts, from (and
including) the date such amounts or obligations were or would have been required to have been paid
or performed to (but excluding) such Early Termination Date, at the Applicable Rate. Such amounts
of interest will be calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above shall be
reasonably determined by the party obliged to make the determination under Section 6(e) or, if each
party is so obliged, it shall be the average of the Termination Currency Equivalents of the fair
market values reasonably determined by both parties.



ISDA â 1992



 


17









 





IN WITNESS WHEREOF the parties have executed this document on the respective dates specified below
with effect from the date specified on the first page of this document.



	 	 	 	 	 	 	 
	WELLS FARGO BANK, N.A.	 	AMERICAN REPROGRAPHICS COMPANY, L.L.C.
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	By:

	 	/s/ Susan Payunk	 	By:	 	/s/ Kumarakulasingam Suriyakumar
	 
	 	 	 	 	 	 
	Name:
	 	Susan Payunk	 	Name:	 	Kumarakulasingam Suriyakumar
	Title:
	 	Vice President	 	Its:	 	Chief Executive Officer
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	AMERICAN REPROGRAPHICS COMPANY
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	By:	 	/s/ Kumarakulasingam Suriyakumar
	 
	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Kumarakulasingam Suriyakumar
	 

	 	 	 	Its:
	 	Chief Executive Officer






ISDA â 1992





 


18












 




SCHEDULE


to the


ISDA MASTER AGREEMENT


This is the
Schedule to that certain ISDA Master Agreement dated as of December 19,
2007 between WELLS FARGO BANK, N.A. (“Party A”) and
AMERICAN REPROGRAPHICS COMPANY, L.L.C. AND AMERICAN REPROGRAPHICS COMPANY,
on a joint and several basis (each individually defined herein as a
“Party B Group Member” and collectively defined herein as
“Party B”).


PART 1


Termination Provisions


In this Agreement:


(A) “Specified Entity” does not apply
to Party A and shall mean any “Subsidiary”, as defined in the
Credit Agreement (as defined herein), in respect to each Party B Group Member.


(B) “Specified Transaction” will have
the meaning specified in Section 14 of this Agreement.


(C) The
“Cross-Default” provisions of Section 5(a)(vi) of this
Agreement will apply to Party A and to each Party B Group Member, provided,
however, the phrase “or becoming capable at such time of being
declared” shall be deleted from clause (1) of such
Section 5(a)(vi).


“Specified
Indebtedness” means any obligation (whether present or future, contingent
or otherwise, as principal or surety or otherwise) for the payment or repayment
of any money; provided, however, with respect to Party A such term shall
not include deposits and obligations in respect of deposits received in the
ordinary course of Party A’s banking business


“Threshold
Amount” means with respect to Party A, an amount equal to 3% of the
Shareholders Equity (as hereinafter defined) of Party A and with respect to
each Party B Group Member, in connection with any Specified Indebtedness
payable by each Party B Group Member, any Credit Support Provider of Party B,
and any Specified Entity of Party B to Party A or its Affiliates, zero, and in
connection with any other Specified Indebtedness, $1,000,000.00.


“Shareholders’ Equity” means, with respect to
an entity, at any time, the sum (as shown in its most recent annual audited
financial statements) of (i) its capital stock (including preferred stock
outstanding, taken at par value), (ii) its capital surplus and
(iii) its retained earnings, minus (iv) treasury stock, each to be
determined in accordance with generally accepted accounting principles.


(D) The
“Credit Event Upon Merger” provisions of
Section 5(b)(iv) of this Agreement will apply to Party A and to each Party
B Group Member.


(E) The
“Automatic Early Termination” provision of Section 6(a) of
this Agreement will not apply to Party A or to Party B.


(F) Payments on Early Termination. For the purpose
of Section 6(e) of this Agreement: (i) Loss will apply and
(ii) Second Method will apply.


(G) “Termination Currency” means United
States Dollars.


19





1









 





(H) Additional
Termination Event will apply. Each of the following shall constitute an
Additional Termination Event:


(i) Party B has repaid all amounts owed to Party A under
that certain Credit Agreement dated as of December 6, 2007, among American
Reprographics Company, L.L.C. as Borrower, American Reprographics Company as
Guarantor, certain Subsidiaries of Party B as Guarantors, the Lenders party
thereto, JPMorgan Chase Bank, N.A. as Administrative Agent and Collateral
Agent, J.P. Morgan Securities Inc., and Wachovia Capital Markets, LLC, as Joint
Bookrunners and Joint Lead Arrangers and Wachovia Bank, National Association as
Syndication Agent (as amended, supplemented, modified, replaced or restated
from time to time, the “Credit Agreement”), and Party A has no
further obligation to provide any additional credit extension to Party B
thereunder, unless Party B executes a Credit Support Document securing the
Transactions under this Agreement in form and substance reasonably acceptable
to Party A. Upon the occurrence of such event, Party B shall be deemed to be
the sole Affected Party and all Transactions shall be deemed to be Affected
Transactions;


(ii) Party A is no longer a “Lender” (as so
defined therein) under the Credit Agreement. Upon the occurrence of such event,
Party B shall be deemed to be the sole Affected Party and all Transactions
shall be deemed to be Affected Transactions; or


(iii) Key Agreements. Any promissory note, loan
agreement, credit agreement reimbursement agreement or other document or
instrument evidencing a credit extension from Party A to Party B is terminated,
cancelled, voided, breached or amended in any manner which would affect
Party’s B ability to perform its obligations under this Agreement,
determined by Party A in its reasonably discretion. Upon the occurrence of such
event, Party B shall be deemed to be the sole Affected Party and all
Transactions shall be deemed to be Affected Transactions.


PART 2


Tax Representations


(A) Payer
Representations. For the purpose of Section 3(e) of this Agreement,
each party makes the following representation:


It is not required
by any applicable law, as modified by the practice of any relevant governmental
revenue authority, of any Relevant Jurisdiction to make any deduction or
withholding for or on account of any Tax from any payment (other than interest
under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made by it
to the other party under this Agreement. In making this representation, it may
rely on (i) the accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement, (ii) the satisfaction of
the agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement
and the accuracy and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement, provided that it shall not be a
breach of this representation where reliance is placed on clause (ii) and
the other party does not deliver a form or document under
Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.


(B) Payee
Representations. For the purpose of Section 3(f) of this
Agreement, Party A represents that it is a national banking association.


For the purpose of
Section 3(f) of this Agreement, Party B represents that:



	 	(i)	 	
American Reprographics Company, L.L.C. is a
limited liability company established under the laws of the State of
California; and








	 	(ii)	 	
American Reprographics Company is a
corporation established under the laws of the State of Delaware.







20





2









 





PART 3


Agreement to Deliver
Documents


For the purposes of
Section 4(a)(i) and (ii) of this Agreement, the parties agrees that
the following documents will be delivered:



	 	 	 	 	 	 	 
	Party Required to	 	 	 	Date by which	 	Covered by Section
	Deliver Document	 	Form/Document/Certificate	 	to be delivered	 	3(d) Representation
	Party B 
	 	Satisfactory evidence of its capacity and
ability to enter into this Agreement and any Transaction hereunder 	 	Upon execution of this Agreement and upon request	 	Yes
	 	 	 	 	 	 	 
	Party B 
	 	Certified evidence of the authority, incumbency
and specimen signature of each person executing any document on its behalf in
connection with this Agreement 	 	Upon execution of this Agreement and upon request	 	Yes
	 	 	 	 	 	 	 
	Party B 
	 	IRS Form W-9, or any successor form thereto 	 	Concurrent with the execution of this
Agreement, promptly upon reasonable demand by Party A and promptly upon
learning that any such form previously provided by Party B has become obsolete
or incorrect. 	 	Yes
	 	 	 	 	 	 	 
	Party B 
	 	The Credit Support Document(s), if any, listed
in Part 4(f) of this Schedule 	 	Upon execution of this Agreement	 	Yes





PART 4


Miscellaneous


(A) Addresses for Notices. For the purpose of
Section 12(a) of this Agreement:


Address for notices
or communications to Party B:


Address:  American
Reprographics Company, L.L.C.


American
Reprographics Company 

700 North Central Avenue - Suite 550


Glendale, CA 91203 

Attention: Steve Biernbaum 

Telephone:
(818) 500-0225 

Fax: (818) 500-0195


21





3









 





Address for notices
or communications to Party A:






	 	 	 
	Address: 
	 	Wells Fargo Bank, N.A.

Financial Products (AU #1857)

550 California Street, 12th Floor

MAC A0112-121

San Francisco, California 94104

Telecopy No.: (415) 986-2604

Confirmation No.: (415) 222-3847

Attention: Documentation Group
	 	 	 
	Additional Address for notices or
communications for operational purposes (payments and settlements):
	 	 	 
	Address:
	 	Wells Fargo Bank, N.A.

550 California Street, 12th Floor

MAC A0112-121

San Francisco, California 94104

Facsimile No.: (415) 646-9208

Attention: Back Office Operations — Settlements





(B) Process
Agent. For the purpose of Section 13(c) of the Agreement, neither Party A
nor Party B will appoint a Process Agent.


(C) Offices. The provisions of Section 10(a) will
apply to this Agreement.


(D) Multibranch Party. For the purpose of
Section 10(c) of this Agreement:


Party A is not a
Multibranch Party.


Party B is not a Multibranch Party.


(E) Calculation Agent. The Calculation Agent
is Party A.


(F) Credit Support Document.


Credit Support Document means, in relation to Party A: None.


Credit Support Document means, in relation to Party B:



	 	(i)	 	The Credit Agreement, as defined herein;

	 	 	 	 
	 	(ii)	 	The “Guaranty”, as defined in the Credit Agreement;

	 	 	 	 
	 	(iii)	 	The “Collateral Documents”, as defined in the Credit Agreement;


	 	 	 	 
	 	(iii)	 	Each document, entered into from time to time,
which secures the loans made pursuant to the Credit Agreement and Note
Agreement; and







	 	(iv)	 	
Each document or instrument entered into from
time to time between Party A and Party B (or any Credit Support Provider of
Party B) which, by its terms, secures, guarantees or otherwise supports Party
B’s obligations hereunder from time to time, whether or not this
Agreement, or any Transaction entered into hereunder is specifically referenced
or described in such document or instrument.







22





4









 





(G) Credit
Support Provider.


Credit Support
Provider means in relation to Party A: None.


Credit Support
Provider means in relation to Party B: each “Guarantor”, as defined
in the Credit Agreement.


(H) Governing Law. This Agreement will be governed
by and construed in accordance with the laws of the State of New York without
reference to choice of law doctrine.


(I) Netting
of Payments. Subparagraph (ii) of Section 2(c) of this Agreement will
apply to the Transactions.


(J) “Affiliate” shall have the meaning
specified in Section 14 of this Agreement; provided, however, that Party A
shall not have any Affiliates for purposes of this Agreement.


PART 5


Other Provisions


(A) Confirmations. Notwithstanding anything to the
contrary in this Agreement:


(i) The parties hereto agree that with respect to each
Transaction hereunder a legally binding agreement shall exist from the moment
that the parties hereto agree on the essential terms of such Transaction, which
the parties anticipate will occur by telephone.


(ii) For each Transaction Party A and Party B agree to
enter into hereunder, Party A shall promptly send to Party B a Confirmation
setting forth the terms of such Transaction. Party B shall execute and return
the Confirmation to Party A or request correction of any error within three
Business Days of receipt. Failure of Party B to respond within such period
shall not affect the validity or enforceability of such Transaction and shall
be deemed to be an affirmation of such terms.


(B) ISDA
Definitions. Unless otherwise specified in a Confirmation, this Agreement,
each Confirmation, and each Transaction are subject to and governed by the 2000
ISDA Definitions (“2000 Definitions”) and the 2005 ISDA Commodity
Derivatives Definitions (“Commodity Definitions”), in each case
published by the International Swaps and Derivatives Association, Inc.
(“ISDA”) as each has been or may be amended, supplemented, updated,
or restated. The provisions of the 2000 Definitions and the Commodity
Definitions are incorporated by reference in and made part of this Agreement
and each Confirmation as if set forth in full in this Agreement and each
Confirmation.


In the event of any
inconsistency between the definitions or provisions in any of the following
documents, the relevant document first listed below shall govern: (i) a
Confirmation (with respect only to definitions in such Confirmation; provided,
however, that other provisions in a Confirmation will govern over inconsistent
provisions in the following documents to the extent that such Confirmation
explicitly states its intent to modify the following documents); (ii) the
Schedule to the ISDA Master Agreement; (iii) the ISDA Master Agreement
(iv) the Commodity Definitions and (v) the 2000 Definitions. For
purposes of this Agreement, all references in the Definitions to “Swap
Transactions” shall be deemed references to any Transaction under this
Agreement.


23





5









 





(C) Additional Representations. Section 3 of
this Agreement is hereby amended by adding at the end thereof the following
subsections (g) through (l):


“(g)
Eligible Contract Participant. It is either an “eligible
contract participant” as that term is defined in Section 1a(12) of
the Commodity Exchange Act (7 U.S.C. 1a(12)) and was not formed solely for the
purposes of constituting an “eligible contract participant, or if it is
not an eligible contract participant, this Agreement (including each
Transaction) is undertaken in conjunction with its line of business (including
financial intermediation services) or the financing of its business.”


“(h) No
Agency. It is entering into this Agreement, any Credit Support Document
to which it is a party, each Transaction and any other documentation relating
to this Agreement or any Transaction as principal (and not as agent or in any
other capacity, fiduciary or otherwise).”


“(i)
Creditworthiness. The economic terms of this Agreement, and any
Credit Support Documents to which it is a party, and each Transaction have been
individually tailored and negotiated by it, and the creditworthiness of the
other party was a material consideration in its entering into or determining
the terms of this Agreement, such Credit Support document, and such
Transaction.”


“(j)
Individual Negotiation. This Agreement (including each
Transaction) has been subject to individual negotiation by the parties,
including individualized creditworthiness determinations.”


“(k)
Assessment and Understanding. It is capable of assessing the
merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts the terms, conditions and
risks of this Agreement and each Transaction hereunder. It is also capable of
assuming, and assumes, the risks of this Agreement and each Transaction
hereunder.”


“(l)
Non-Reliance. It is acting for its own account, and it has made
its own independent decisions to enter into that Transaction and as to whether
that Transaction is appropriate or proper for it based upon its own judgment
and upon advice from such advisers as it has deemed necessary. It is not
relying on any communication (written or oral) of the other party as investment
advice or as a recommendation to enter into that Transaction: it being
understood that information and explanations related to the terms and
conditions of a Transaction shall not be considered investment advice or a
recommendation to enter into a Transaction. No communication (written or oral)
received from the other party shall be deemed to be an assurance or guarantee
of the expected results of that Transaction.”


(D) Right
of Setoff. Section 6 of this Agreement is amended by adding the
following new Section 6(f):



	 	 	 	
“(f) Set-off. Any amount
(the “Early Termination Amount”) payable under Section 6(e) by
one party (“Party X”) or its Affiliates to other party that is
either the Defaulting Party or the one Affected Party (“Party Y”),
will, at the option of Party X (and without prior notice to Party Y), be
reduced by its set-off against any amount(s) (the “Other Agreement
Amount”) payable (whether at such time or in the future or upon the
occurrence of a contingency) by Party Y to Party X or its Affiliates
(irrespective of the currency, place of payment or booking office of the
obligation) under any other agreement(s) between Party X and its Affiliates and
Party Y or instrument(s) or undertaking(s) issued or executed by one party to,
or in favor of, the other party (and the Other Agreement Amount will be
discharged promptly and in all respects to the extent it is so set-off). Party
X will give notice to the other party of any set-off effected under this
Section 6(f).







For this purpose,
either the Early Termination Amount or the Other Agreement Amount (or the
relevant portion of such amounts) may be converted by Party X into the currency
in which the other is denominated at the rate of exchange at which such party
would be able, acting in a reasonable manner and in good faith, to purchase the
relevant amount of such currency. The term “rate of exchange”
includes, without limitation, any premiums and costs of exchange payable in
connection with the purchase of or conversion into the relevant currency.


24





6









 





If an obligation is
unascertained, Party X may in good faith estimate that obligation and set-off
in respect of the estimate, subject to the relevant party accounting to the
other when the obligation is ascertained.


Nothing in this
Section 6(f) shall be effective to create a charge or other security
interest. This Section shall be without prejudice and in addition to any
right of set-off, combination of accounts, lien or other right to which any
party is at any time otherwise entitled (whether by operation of law, contract
or otherwise).”


(E) Inconsistency Among Definitions or Provisions.
In the event of any inconsistency between the definitions or provisions in any
of the following documents, the relevant document first listed below shall
govern: (i) a Confirmation (with respect only to definitions in such
Confirmation; provided, however, that other provisions in a Confirmation will
govern over inconsistent provisions in the following documents to the extent
that such Confirmation explicitly states its intent to modify the following
documents); (ii) the Schedule to the ISDA Master Agreement; (iii) the
ISDA Master Agreement; and (v) the 2000 ISDA Definitions.


(F) Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of the Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction. The parties hereto shall endeavor in good faith negotiations to
replace the prohibited or unenforceable provision with a valid provision, the
economic effect of which comes as close as possible to that of the prohibited
or unenforceable provision.


(G) WAIVER
OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY TRIAL OR LITIGATION ARISING OUT OF OR IN CONNECTION WITH
ANY TRANSACTION OR THIS AGREEMENT.


(H) RISK
DISCLOSURE. PARTY B HEREBY ACKNOWLEDGES AND AGREES THAT IT HAS:
(X) READ THE RISK DISCLOSURE SET FORTH ON EXHIBIT A; (Y) UNDERSTANDS
SUCH RISK DISCLOSURE; AND (Z) HAD AN ADEQUATE OPPORTUNITY TO DISCUSS ANY
QUESTIONS OR COMMENTS THAT IT MAY HAVE HAD WITH RESPECT TO SUCH RISK DISCLOSURE
PRIOR TO THE EXECUTION OF THIS AGREEMENT.


(I) Consent
to Recording. Each party (i) consents to the recording of the
telephone conversations of trading and marketing personnel of the parties in
connection with this Agreement or any potential Transaction, and (ii) agrees to
obtain any necessary consents of and give notice of such recording to its
personnel, and (iii) consents to the submission of any such tape recording
in evidence in any Proceedings.


(J) Accuracy of Specifed Information. Section 3(d)
of this Agreement is hereby amended to include “or in the case of audited
or unaudited financial statements, a fair representation of the financial
condition of the relevant person”, after “respect” in the
third line thereof.


(K) Transfer. Section 7(a) of this Agreement is
hereby amended to include “reorganization, reincorporation, incorporation
or reconstitution”, after “to,” and before
“another” in the second line thereof.


(l) Termination Currency Equivalent. The Definition
of Termination Currency Equivalent” of this Agreement is hereby amended
to include “in any commercially reasonable manner”, after
“determination,” and before “as” in the fourth line
thereof.




25





7









 





(M) Joint
& Several Obligations.  Each Party B Group Member which comprises
Party B hereby acknowledges and confirms that the obligations and liabilities
of each such Party B Group Member under this Agreement or any Transaction
hereunder are joint and several.  Accordingly, each such Party B Group
Member shall be jointly and severally liable for the obligations and
liabilities expressed to be obligations of Party B hereunder. 
Additionally, each such Party B Group Member further acknowledges and confirms
that notwithstanding the joint and several nature of their obligations
hereunder, each reference to Party B in this Agreement or any Transaction
hereunder shall be a reference to each such
Party B Group Member individually.  Each Party B Group Member comprising
Party B hereby also acknowledges, agrees and confirms on and as of the date of
this Agreement and on each date on which a Transaction is entered into that:
(i) the actions of either Party B Group Member shall bind both Party B
Group Members equally, as if both had executed or taken such action jointly;
(ii) each Party B Group Member hereby appoints the other Party B Group
Member as its agent and each acknowledges and agrees that it is entering into
this Agreement and each Transaction on behalf of itself and the other Party B
Group Member as agent; (iii) it has the power and the authority to execute
and deliver this Agreement and any Transaction on its own behalf as agent and
on behalf of the other Party B Group Member and to bind itself as agent and the
other Party B Group Member and to act on behalf of itself as agent and on
behalf of the other Party B Group Member in all matters related to this
Agreement; and (iv) this Agreement is binding upon it as agent and on the
other Party B Group Member and enforceable against it as agent and against the
other Party B Group Member in accordance with its terms and does not and will
not violate the terms of any agreement by which it and the other Party B Group
Member is bound.  Each Party B Group Member comprising Party B agrees to
indemnify Party A, to the fullest extent permitted by law, from and against any
loss, liability, cost, claim, action, demand or expense (including, without
limitation, the costs, expenses and disbursements of legal counsel), whether
direct, indirect, incidental or consequential, resulting from, arising out of
or relating to (i) any claim by the other Party B Group Member that any
Transaction entered into by such Party B Group Member on the other Party B
Group Member’s behalf was not suitable, and (ii) any claim by the
other Party B Group Member that any Transaction entered into by such Party B
Group Member on the other Party B Group Member’s behalf was without
authority.


PART 6: FX


Transactions and Currency
Options


(A) Incorporation and Amendment of 1998 FX and
Currency Option Definitions.


(i) Incorporation of 1998 FX and Currency Option
Definitions. The 1998 FX and Currency Option Definitions, as amended from time
to time (the “1998 Definitions”), published by the International
Swaps and Derivatives Association, Inc., the Emerging Markets Trader
Association and The Foreign Exchange committee, are hereby incorporated by
reference with respect to any “Currency Option Transactions” and
“FX Transactions” as defined by the 1998 Definitions, except as
otherwise specifically provided herein or in the Confirmation.


(ii) Amendment of 1998 FX and Currency Option Definitions.
The following amendments are made to the 1998 Definitions:


Section 2.1 of the 1998 Definitions is amended by adding
the following as Section 2.1(b):


Currency Obligation. “Currency Obligation”
means the undertaking of a party hereunder to receive or deliver an amount of
currency, including a netted Currency Obligation, and including any Currency
Obligation previously entered into by the parties.


(B)
Confirmations. Any confirmation (whether provided by mail,
facsimile or other electronic means) in respect of any FX Transaction or
Currency Option Transaction into which the parties may enter, or may have
entered into prior to the date hereof, that fails by its terms to expressly
excluded the application of this Agreement shall (to the extent not otherwise
provided for in this Agreement) (i) constitute a
“Confirmation” as referred to in this Agreement, even when not so
specified in such confirmation; and (ii) supplement, form a part of, and
be subject to this Agreement, and all provisions in this Agreement will govern
such Confirmation except as expressly modified therein.


26





8









 





(C) Netting
and Related Provisions. Section 2(c) shall not apply to FX Transaction
or Currency Option Transactions. In lieu thereof, the following shall apply:


(i) Netting, Discharge and Termination of FX Transactions.
The following provisions shall apply to FX Transactions:


Unless otherwise
agreed by the parties, whenever an FX Transaction is entered into between the
parties which creates a Currency Obligation in the same currency and for the
same Settlement Date as an existing Currency Obligation between the parties,
such Currency Obligation shall automatically and without further action be
netted, individually canceled and simultaneously replaced through novation by a
new Currency Obligation under which the party having the obligation to deliver
the greater aggregate amount of currency shall be obligated to deliver the
excess of such greater aggregate currency amount over such lesser aggregate
currency amount. Such new Currency Obligation shall be considered a
“Currency Obligation” under this Agreement.


(ii) Netting, Discharge and Termination with Respect to
Currency Option Transactions. The following provisions shall apply to Currency
Option Transactions:


Unless otherwise
agreed by the parties, any Call or Put written by a party will automatically be
terminated and discharged, in whole or in part, as applicable, against a Call
or a Put, respectively, having the same identical terms, written by the other
party; and, upon the occurrence of such termination or discharge, neither party
shall have any further obligation to the other party in respect of the parts so
terminated and discharged (except for the obligation of either party to pay any
Premium due, but not paid, thereunder); and the remaining portion of any
Currency Option Transaction, which is partially discharged and terminated,
shall continue to be a Currency Option Transaction under this Agreement.


(D) Inconsistencies. In the event of any
conflict between:


(i) the terms of a Deliverable FX Transaction Confirmation
and this Agreement, the terms of this Agreement shall supersede;


(ii) the terms of a Deliverable FX Transaction
Confirmation, where the Confirmation explicitly states that it shall so prevail
and has been signed by both parties, its terms shall supersede the terms of
this Agreement;


(iii) the terms of a Currency Option Transaction or a
Non-Deliverable FX Transaction Confirmation and this Agreement, the terms of
the Confirmation shall supersede.


(E) Definitions. Section 14 of this
Agreement is hereby amended as follows:


The definition of
“Terminated Transactions” shall be deemed to include Currency
Obligations.


(F) Premium
Payment. Notwithstanding the provisions of Section 5 of this
Agreement or any other provisions of this Agreement, if in connection with a
Currency Option Transaction a Premium is not received on the Premium Payment
Date, the Seller may elect: (i) to accept a later payment of such Premium
or (ii) to give written notice of such non-payment and, if such payment
shall not be received within three Local Business Days of such notice, treat
the related Currency Option Transaction as void. If the Seller elects to act
under clause (i) of the preceding sentence, the Buyer shall pay interest on
such Premium in the same currency as such Premium from the day such Premium was
due until the day paid at the Default Rate, as determined in good faith by the
Seller; and if the Seller elects to act under clause (ii) of the preceding
sentence, the Buyer shall pay all of Seller’s losses, costs and expenses,
including, but not limited to, legal fees and out-of-pocket expenses of the
Seller, incurred in connection with such unpaid or late Premium or void
Currency Option Transaction, including, but not limited to, interest on such
Premium in the same currency as such Premium at the then prevailing market rate
and any other costs or expenses incurred by the Seller in covering its
obligations (including, but not limited to, a delta hedge) with respect to such
Currency Option Transaction.


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IT WITNESS WHEREOF
the parties have executed this document on the respective dates specified below
with effect from the date specified on the first page of this document.





	 	 	 	 	 
	“Party A”	 	 	“Party B”	 
	 	 	 	 	 
	WELLS FARGO BANK, N.A.	 	AMERICAN REPROGRAPHICS COMPANY, L.L.C.
	 	 	 	 	 
	By:
	/s/ Susan Payunk	 	By:	/s/ Kumarakulasingam Suriyakumar
	 
	 	 	 	 
	Name:
	Susan Payunk	 	Name:	Kumarakulasingam Suriyakumar
	Title:
	Vice President	 	Its:	Chief Executive Officer
	 	 	 	 	 
	 	 	AMERICAN REPROGRAPHICS COMPANY
	 	 	 	 	 
	 
	 	 	By:	/s/ Kumarakulasingam Suriyakumar
	 
	 	 	 	 
	 
	 	 	Name:	Kumarakulasingam Suriyakumar
	 
	 	 	Its:	Chief Executive Officer







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EXHIBIT A


Generic Risk
Disclosure

For Financial Products Transactions and
Related Transactions


 




 


As is common with many other
financial instruments and transactions, over-the-counter swaps, options,
forwards, foreign exchange transactions and other similar derivatives and
related products (each, a “Financial Products Transaction”) may
involve a variety of significant risks. Before entering into any Financial
Products Transaction, you should carefully consider whether the transaction is
appropriate for you in light of your objectives, experience, financial and
operational resources, and other relevant circumstances. You should also ensure
that you fully understand the nature and extent of your exposure to risk of
loss, if any, which in some circumstances may significantly exceed the amount
of any initial payment made by or to you.


The specific risks presented by a
particular Financial Products Transactions necessarily depend upon the terms of
that transaction and the circumstances. Common to all, however, is their nature
as legally binding contractual commitments, which, once agreed to, cannot be
altered other than by termination or modification upon written agreement by the
parties. You should understand that such termination and/or modification may,
in certain circumstances, result in significant losses to you and may include
additional amounts required to cover the relevant costs.


In entering into any Financial
Products Transaction with, or arranged by, us, Wells Fargo Bank, National
Association, or, as may be applicable, our authorized subsidiaries or
affiliates (each such entity, “Wells Fargo”), you should also
understand that Wells Fargo is acting solely in the capacity of an arm’s
length contractual counterparty and not in the capacity of your financial
advisor or fiduciary unless otherwise explicitly agreed in writing and then
only to the extent so provided.


This brief statement does not
purport to disclose all of the risks or other relevant considerations of
entering into Financial Products Transactions.


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