REPRESENTATIONS AND WARRANTIES OF BUYER IN THIS AGREEMENT SHALL BE TRUE AND
CORRECT EXCEPT AS WOULD NOT REASONABLY BE EXPECTED TO HAVE A BUYER MATERIAL
ADVERSE EFFECT, IN EACH CASE AS OF THE DATE HEREOF AND AS OF THE CLOSING DATE AS
THOUGH MADE ON THE CLOSING DATE.
9.2
PERFORMANCE OF AGREEMENTS.
BUYER SHALL HAVE
PERFORMED AND COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS, OBLIGATIONS
AND AGREEMENTS TO BE PERFORMED OR COMPLIED WITH BY IT ON OR BEFORE THE CLOSING
PURSUANT TO THIS AGREEMENT OR ANY SCHEDULE OR EXHIBIT HERETO, INCLUDING EACH OF
BUYER'S OBLIGATIONS UNDER SECTION 3.4.
9.3
APPROVALS.
ALL WAITING PERIODS APPLICABLE
UNDER THE HSR ACT SHALL HAVE EXPIRED OR BEEN TERMINATED.
EXCEPT AS WOULD NOT
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON SELLER AND ITS
AFFILIATES (OTHER THAN COMPANY AND COMPANY SUBSIDIARIES) AND THEIR BUSINESSES,
ALL OTHER CONSENTS, AUTHORIZATIONS, APPROVALS OF, AND EXPIRATIONS OF WAITING
PERIODS IMPOSED BY, ANY GOVERNMENTAL BODY, THE FAILURE OF WHICH TO OBTAIN OR
OCCUR WOULD MAKE THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY
ILLEGAL (INCLUDING ACTION BY THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL
PROTECTION UNDER THE NEW JERSEY INDUSTRIAL SITE RECOVERY ACT ALLOWING THE SHARE
TRANSFER OR APPROVING A REMEDIATION AGREEMENT TO ALLOW THE CLOSING TO PROCEED
PENDING SUCH ACTION), SHALL HAVE BEEN OBTAINED OR SHALL HAVE OCCURRED.
9.4
LEGAL MATTERS.
NO PRELIMINARY OR PERMANENT
INJUNCTION OR OTHER JUDGMENT, ORDER OR DECREE ISSUED BY A COURT OF COMPETENT
JURISDICTION WHICH PREVENTS OR MATERIALLY DELAYS THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL HAVE BEEN ISSUED AND REMAIN IN EFFECT, NO
GOVERNMENTAL BODY SHALL HAVE COMMENCED A PROCEEDING THAT REMAINS PENDING SEEKING
35
ANY SUCH INJUNCTION OR OTHER JUDGMENT, ORDER OR DECREE, AND NO STATUTE, RULE OR
REGULATION SHALL HAVE BEEN ENACTED, PROMULGATED OR ENFORCED BY ANY GOVERNMENTAL
BODY THAT PROHIBITS OR MATERIALLY DELAYS THE CONSUMMATION OF, OR IMPOSES
MATERIAL LIMITATIONS ON THE PARTIES' ABILITY TO CONSUMMATE
THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
9.5
RELEASE OF GUARANTEES.
SELLER AND ANY
AFFILIATES OF SELLER (OTHER THAN COMPANY OR ANY COMPANY SUBSIDIARY) SHALL HAVE
BEEN RELEASED FROM THE ARRANGEMENT BY WHICH SELLER OR ANY AFFILIATE OF SELLER
(OTHER THAN COMPANY OR ANY COMPANY SUBSIDIARY) GUARANTEES ANY OBLIGATIONS OR
LIABILITIES OF COMPANY OR ANY SUBSIDIARY LISTED AT SECTION 9.5 OF THE DISCLOSURE
SCHEDULE.
ARTICLE 10
TERMINATION
10.1
TERMINATION.
THIS AGREEMENT MAY BE TERMINATED AT
ANY TIME PRIOR TO THE CLOSING DATE:
(A)
BY SELLER OR BUYER AT ANY TIME AFTER
OCTOBER 31, 2005 OTHER THAN IF CAUSED BY THE FAILURE OF THE PARTY SEEKING TO
TERMINATE THIS AGREEMENT TO PERFORM IN ALL MATERIAL RESPECTS ITS OBLIGATIONS
UNDER THIS AGREEMENT REQUIRED TO BE PERFORMED AT OR PRIOR TO THE CLOSING OR A
BREACH OF SUCH PARTY'S REPRESENTATIONS OR WARRANTIES;
(B)
BY BUYER, (I) IN THE EVENT OF A BREACH OF
ANY REPRESENTATION, WARRANTY, COVENANT OR OTHER AGREEMENT CONTAINED IN THIS
AGREEMENT WHICH WOULD GIVE RISE TO THE FAILURE OF THE CONDITIONS IN SECTION 8.1
OR 8.2, AND WHICH, WITH RESPECT TO ANY