each other Loan Document constitutes a legal, valid and binding
obligation of each Loan Party that is a party thereto, enforceable against such
Loan Party in accordance with its terms, except as such enforceability may be
limited by bankruptcy insolvency, reorganization, receivership, moratorium or
other Laws affecting creditors' rights generally and by general principles of
equity (regardless of whether enforcement is sought in equity or at law).
SECTION 5.05.
Financial Statements; No Material Adverse Effect.
(a)
The most
recent audited annual financial statements delivered to the Administrative Agent
pursuant to Section 6.01(a) fairly present in all material respects the
financial condition of UHS and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby in accordance with GAAP or
the equivalent accounting principles in the relevant local jurisdiction
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein.
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(B)
IN THE CASE OF THE AMENDMENT CLOSING DATE, SINCE DECEMBER 31, 2009
AND, IN ALL OTHER CASES, SINCE THE DATE OF THE MOST RECENT AUDITED FINANCIAL
STATEMENTS DELIVERED TO THE ADMINISTRATIVE AGENT PURSUANT TO SECTION 6.01(A),
THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN, OR EVENT OR CONDITION, EITHER
INDIVIDUALLY OR IN THE AGGREGATE, THAT HAS HAD OR COULD REASONABLY BE EXPECTED
TO HAVE A MATERIAL ADVERSE EFFECT ON THE BUSINESS, OPERATIONS, ASSETS, FINANCIAL
CONDITION OR OPERATING RESULTS OF THE BORROWERS AND THEIR RESTRICTED
SUBSIDIARIES, TAKEN AS A WHOLE.
(C)
EXCEPT AS SET FORTH ON SCHEDULE 3.6 TO THE MERGER AGREEMENT, AS OF
THE CLOSING DATE, UHS HAS NO MATERIAL LIABILITIES OR OBLIGATIONS OF ANY NATURE
(WHETHER KNOWN OR UNKNOWN, ABSOLUTE, ACCRUED, CONTINGENT, MATURED OR UNMATURED),
EXCEPT FOR (I) LIABILITIES AND OBLIGATIONS REFLECTED ON THE HISTORICAL FINANCIAL
STATEMENTS, (II) LIABILITIES AND OBLIGATIONS THAT HAVE BEEN INCURRED IN THE
ORDINARY COURSE OF BUSINESS (AS DEFINED IN THE MERGER AGREEMENT) SINCE
DECEMBER 31, 2006, (III) LIABILITIES AND OBLIGATIONS FOR FEES AND EXPENSES
INCURRED IN CONNECTION WITH THE MERGER AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED THEREBY, (IV) LIABILITIES AND OBLIGATIONS THAT WOULD NOT REASONABLY
BE EXPECTED TO HAVE A TARGET MATERIAL ADVERSE EFFECT.
(D)
THE FORECASTS OF CONSOLIDATED INCOME STATEMENT AND CASH FLOW
STATEMENT OF UHS AND ITS SUBSIDIARIES FOR EACH FISCAL YEAR ENDING AFTER THE
CLOSING DATE UNTIL THE FOURTH ANNIVERSARY OF THE CLOSING DATE, COPIES OF WHICH
HAVE BEEN FURNISHED TO THE ADMINISTRATIVE AGENT AND THE LENDERS PRIOR TO THE
CLOSING DATE, WERE PREPARED IN GOOD FAITH BASED UPON ASSUMPTIONS BELIEVED TO BE
REASONABLE AT THE TIME MADE IN LIGHT OF THE CONDITIONS EXISTING AT THE TIME OF
PREPARATION OF SUCH FORECASTS AND REPRESENTED, AT THE TIME OF PREPARATION, UHS'S
REASONABLE ESTIMATE OF ITS FUTURE FINANCIAL PERFORMANCE, IT BEING UNDERSTOOD
THAT (I) SUCH FORECASTS, AS TO FUTURE EVENTS, ARE NOT TO BE VIEWED AS FACTS,
THAT ACTUAL RESULTS DURING THE PERIOD OR PERIODS COVERED BY ANY SUCH FORECASTS
MAY DIFFER SIGNIFICANTLY FROM THE FORECASTED RESULTS AND THAT SUCH DIFFERENCES
MAY BE MATERIAL AND THAT SUCH FORECASTS ARE NOT A GUARANTEE OF