THE GUARANTORS AND (II) CONSTITUTE LEGAL, VALID AND BINDING
OBLIGATIONS OF THE BORROWER AND EACH OF THE GUARANTORS, ENFORCEABLE IN
ACCORDANCE WITH THEIR RESPECTIVE TERMS, SUBJECT TO APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS AFFECTING CREDITORS' RIGHTS
GENERALLY AND SUBJECT TO GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF WHETHER
CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
SECTION 3.03.
GOVERNMENTAL APPROVALS; NO CONFLICTS.
THE
TRANSACTIONS AND THE CONSUMMATION OF THE KINKO'S ACQUISITION (A) DO NOT REQUIRE
ANY CONSENT OR APPROVAL OF, REGISTRATION OR FILING WITH, OR ANY OTHER ACTION BY,
ANY GOVERNMENTAL AUTHORITY, EXCEPT (I) WITH RESPECT TO THE TRANSACTIONS, SUCH AS
HAVE BEEN OBTAINED OR MADE AND ARE IN FULL FORCE AND EFFECT, AND (II) WITH
RESPECT TO THE CONSUMMATION OF THE KINKO'S ACQUISITION, (A) SUCH AS HAVE BEEN
OBTAINED OR MADE AND ARE IN FULL FORCE OR EFFECT, (B) THE FILING OF A
CERTIFICATE OF MERGER WITH THE DELAWARE SECRETARY OF STATE AND APPROPRIATE
DOCUMENTS WITH THE RELEVANT AUTHORITIES OF OTHER STATES IN WHICH THE BORROWER IS
QUALIFIED TO DO BUSINESS, (C) COMPLIANCE WITH ANY APPLICABLE REQUIREMENTS OF THE
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976 AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER (THE "HSR ACT") AND OF LAWS, RULES AND
REGULATIONS ANALOGOUS TO THE HSR ACT EXISTING IN FOREIGN JURISDICTIONS,
INCLUDING JAPAN, SOUTH KOREA AND CHINA, (D) COMPLIANCE WITH ANY APPLICABLE
SECURITIES LAWS, AND (E) ANY CONSENTS, APPROVALS, REGISTRATIONS OR FILINGS, THE
ABSENCE OF WHICH WOULD NOT BE REASONABLY EXPECTED TO MATERIALLY IMPAIR THE
ABILITY OF THE BORROWER TO CONSUMMATE THE KINKO'S ACQUISITION; (B) WILL NOT
VIOLATE ANY APPLICABLE LAW OR REGULATION OR THE CHARTER, BY-LAWS OR OTHER
ORGANIZATIONAL DOCUMENTS OF THE BORROWER, ANY GUARANTOR OR ANY OF THE
SIGNIFICANT SUBSIDIARIES OR ANY ORDER OF ANY GOVERNMENTAL AUTHORITY; (C) WILL
NOT VIOLATE OR RESULT IN A DEFAULT UNDER ANY INDENTURE, AGREEMENT OR OTHER
INSTRUMENT BINDING UPON THE BORROWER, ANY GUARANTOR OR ANY OF THE SIGNIFICANT
SUBSIDIARIES OR THEIR ASSETS, OR GIVE RISE TO A RIGHT THEREUNDER TO REQUIRE ANY
PAYMENT TO BE MADE BY THE BORROWER, ANY GUARANTOR OR ANY OF THE SIGNIFICANT
SUBSIDIARIES; AND (D) WILL NOT RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN
ON ANY ASSET OF THE BORROWER OR ANY OF THE SIGNIFICANT SUBSIDIARIES.
SECTION 3.04.
FINANCIAL STATEMENTS.
THE BORROWER HAS HERETOFORE
FURNISHED TO THE LENDERS ITS CONSOLIDATED BALANCE SHEET, RELATED PROFIT AND LOSS
AND RECONCILIATION OF SURPLUS STATEMENTS, AND A STATEMENT OF CASH FLOWS AS OF
AND FOR THE FISCAL YEAR ENDED MAY 31, 2003, REPORTED ON BY ERNST & YOUNG LLP,
INDEPENDENT PUBLIC ACCOUNTANTS.
SUCH FINANCIAL STATEMENTS (INCLUDING THE NOTES
THERETO) PRESENT FAIRLY, IN ALL MATERIAL RESPECTS, THE CONSOLIDATED FINANCIAL
CONDITION AND OPERATIONS OF THE BORROWER
27
AND ITS CONSOLIDATED SUBSIDIARIES AS OF SUCH DATE AND THE CONSOLIDATED RESULTS
OF THEIR OPERATIONS FOR THE PERIODS THEN ENDED, IN ACCORDANCE WITH GAAP.
SECTION 3.05.
TAXES.
THE BORROWER AND EACH OF ITS SIGNIFICANT
SUBSIDIARIES HAS TIMELY FILED OR CAUSED TO BE FILED ALL TAX RETURNS AND REPORTS
REQUIRED TO HAVE BEEN