THIS AGREEMENT SHALL BE A CONDITION
PRECEDENT TO EXTRA SPACE'S OBLIGATION TO CLOSE.
6.4
SURVIVAL AND INDEMNIFICATION.
6.4.1
LIMITED SURVIVAL OF HSRE WARRANTIES AND REPRESENTATIONS.
WITH THE
EXCEPTION OF THE REPRESENTATIONS AND WARRANTIES IN SECTION 6.1.1, WHICH SHALL
SURVIVE INDEFINITELY, THE WARRANTIES AND REPRESENTATIONS CONTAINED IN
SECTION 6.1 ABOVE SHALL SURVIVE THE CLOSING AND SHALL INURE TO THE BENEFIT OF
EXTRA SPACE, HSRE-ESP AND THEIR RESPECTIVE LEGAL REPRESENTATIVES, HEIRS,
SUCCESSORS OR ASSIGNS FOR A PERIOD OF ONE YEAR AFTER THE CLOSING AND SHALL
AUTOMATICALLY EXPIRE ON THE FIRST ANNIVERSARY OF THE CLOSING UNLESS EITHER EXTRA
SPACE OR HSRE-ESP PRIOR THERETO HAS GIVEN HSRE WRITTEN NOTICE OF ANY ALLEGED
BREACH AND EITHER EXTRA SPACE OR HSRE-ESP COMMENCES AND SERVES AN ACTION AGAINST
HSRE WITHIN NINETY (90) DAYS AFTER SUCH NOTICE IS GIVEN TO HSRE (AND, IN THE
EVENT ANY SUCH SUIT IS TIMELY COMMENCED BY EITHER EXTRA SPACE OR HSRE-ESP AND
SERVED AGAINST HSRE, SHALL SURVIVE THEREAFTER ONLY INSOFAR AS THE SUBJECT MATTER
OF THE ALLEGED BREACH SPECIFIED IN SUCH SUIT IS CONCERNED).
IF NOTICE IS NOT
TIMELY GIVEN AND SUIT IS NOT TIMELY COMMENCED AND SERVED BY EITHER EXTRA SPACE
OR HSRE-ESP, SUCH REPRESENTATIONS AND WARRANTIES SHALL THEREAFTER BE VOID AND OF
NO FORCE OR EFFECT.
6.4.2
INDEMNIFICATION.
SUBJECT TO THE PROVISIONS OF SECTION 6.4.1 ABOVE,
IF ANY CLAIM (DEFINED BELOW) ARISES BECAUSE OF ANY OF THE REPRESENTATIONS AND
WARRANTIES OF HSRE SET FORTH IN SECTION 6.1 ABOVE PROVES TO THE FALSE OR
MISLEADING IN ANY MATERIAL RESPECT, HSRE SHALL INDEMNIFY, DEFEND (WITH COUNSEL
REASONABLY ACCEPTABLE TO EXTRA SPACE), PROTECT, AND SAVE AND HOLD HARMLESS EXTRA
SPACE AND HSRE-ESP WITH RESPECT TO ANY SUCH CLAIM.
AS USED HEREIN, THE TERM
"CLAIM" SHALL MEAN ANY AND ALL LIABILITIES, JUDGMENTS, SETTLEMENT AMOUNTS,
CLAIMS,
19
CAUSES OF ACTION, SUITS PENALTIES, DAMAGES, DEMANDS, ORDERS, COSTS AND EXPENSES
OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL,
ACCOUNTING, CONSULTING, ENGINEERING, AND OTHER COSTS AND EXPENSES WHICH MAY BE
INCURRED BY OR ASSERTED AGAINST THE INDEMNIFIED PARTY.
6.4.3
SURVIVAL.
THE PROVISIONS OF THIS SECTION 6.4 SHALL SURVIVE THE
CLOSING.
EXCEPT AS MAY OTHERWISE BE SPECIFICALLY SET FORTH IN THIS AGREEMENT,
THE OBLIGATIONS OF THE HSRE UNDER THIS AGREEMENT SHALL NOT SURVIVE THE CLOSING
OR ANY TERMINATION OF THIS AGREEMENT.
7.
ADDITIONAL WARRANTIES AND REPRESENTATIONS OF EXTRA SPACE AND
HSRE.
7.1
KNOWLEDGE.
EXTRA SPACE AND HSRE (EACH HEREINAFTER A "PARTY" AND
COLLECTIVELY THE "PARTIES"), SOLELY WITH RESPECT TO ITSELF AND NOT WITH RESPECT
TO ANY OTHER PARTY, EACH WARRANTS AND REPRESENTS TO THE OTHER THAT SUCH PARTY IS
AWARE THAT:
7.1.1
ACQUISITION OF AN INTEREST IN HSRE-ESP IS A SPECULATIVE INVESTMENT
WHICH INVOLVES A SUBSTANTIAL DEGREE OF RISK OF LOSS BY SUCH PARTY OF SUCH
PARTY'S ENTIRE INVESTMENT IN HSRE-ESP, THAT SUCH PARTY UNDERSTANDS AND TAKES
FULL COGNIZANCE OF THE RISK FACTORS RELATED TO ACQUISITION OF AN INTEREST IN
HSRE-ESP.
7.1.2
NO FEDERAL, STATE OR LOCAL AGENCY HAS PASSED UPON THE INTERESTS IN
HSRE-ESP OR MADE ANY FINDING OR DETERMINATION CONCERNING THE FAIRNESS OF AN