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
Historical Financial Statements fairly present in all material respects the
financial condition of the Acquired Business 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.
(B)
IN THE CASE OF THE CLOSING DATE, SINCE DECEMBER 31, 2006 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 INITIAL LENDERS PRIOR TO
THE CLOSING DATE, HAVE BEEN 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
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RESULTS AND THAT SUCH DIFFERENCES MAY BE MATERIAL AND THAT SUCH FORECASTS ARE
NOT A GUARANTEE OF FINANCIAL PERFORMANCE AND (II) NO REPRESENTATION IS MADE WITH
RESPECT TO INFORMATION OF A GENERAL ECONOMIC OR GENERAL INDUSTRY NATURE.
SECTION 5.06. Litigation. Except (insofar as clause (b) below is concerned) as