IN EACH INSTANCE,
AS OF THE DATE OF THIS AGREEMENT, EXTRA SPACE DID NOT HAVE KNOWLEDGE OF SUCH
FACTS OR CIRCUMSTANCES, EXTRA SPACE SHALL NOT HAVE ANY LIABILITY TO EITHER HSRE
OR HSRE-ESP WITH RESPECT TO SUCH WARRANTY OR REPRESENTATION AND THE FAILURE TO
REMAKE SUCH REPRESENTATION OR WARRANTY SHALL NOT CONSTITUTE A DEFAULT HEREUNDER
BY EXTRA SPACE, EXCEPT IN THE EVENT OR TO THE EXTENT THAT THE UNTRUTH OF SUCH
REPRESENTATION OR WARRANTY IS THE RESULT OF ANY WILLFUL OR INTENTIONAL ACT OF
EXTRA SPACE (OR ANYONE ACTING AT HIS, HER OR ITS REQUEST) OR WILLFUL OR
INTENTIONAL FAILURE TO ACT ON THE PART OF EXTRA SPACE (OR ANYONE ACTING AT HIS,
HER OR ITS REQUEST) AND IN BREACH OF THIS AGREEMENT.
NOTWITHSTANDING ANYTHING
TO THE CONTRARY IN THIS SECTION 5.3, THE CONTINUING TRUTH AND ACCURACY IN ALL
MATERIAL RESPECTS OF ALL REPRESENTATIONS AND WARRANTIES MADE BY EXTRA SPACE IN
SECTION 5.1 ABOVE IN THIS AGREEMENT SHALL BE A CONDITION PRECEDENT TO HSRE'S
OBLIGATION TO CLOSE.
5.4
SURVIVAL AND INDEMNIFICATION.
5.4.1
LIMITED SURVIVAL OF EXTRA SPACE WARRANTIES AND REPRESENTATIONS.
WITH THE EXCEPTION OF THE REPRESENTATIONS AND WARRANTIES IN SECTIONS 5.1.1,
5.1.10, 5.1.11, 5.1.12, 5.1.13, 5.1.22 AND 5.1.23, ALL OF WHICH SHALL
17
SURVIVE INDEFINITELY, THE WARRANTIES AND REPRESENTATIONS CONTAINED IN
SECTION 5.1 ABOVE SHALL SURVIVE THE CLOSING AND SHALL INURE TO THE BENEFIT OF
HSRE, 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 HSRE OR HSRE-ESP
PRIOR THERETO HAS GIVEN EXTRA SPACE WRITTEN NOTICE OF ANY ALLEGED BREACH AND
EITHER HSRE OR HSRE-ESP COMMENCES AND SERVES AN ACTION AGAINST EXTRA SPACE
WITHIN NINETY (90) DAYS AFTER SUCH NOTICE IS GIVEN TO EXTRA SPACE (AND, IN THE
EVENT ANY SUCH SUIT IS TIMELY COMMENCED BY EITHER HSRE OR HSRE-ESP AND SERVED
AGAINST EXTRA SPACE, 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 HSRE OR
HSRE-ESP, SUCH REPRESENTATIONS AND WARRANTIES SHALL THEREAFTER BE VOID AND OF NO
FORCE OR EFFECT.
5.4.2
INDEMNIFICATION.
SUBJECT TO THE PROVISIONS OF SECTION 5.4.1 ABOVE,
IF ANY CLAIM (DEFINED BELOW) ARISES BECAUSE OF ANY OF THE REPRESENTATIONS AND
WARRANTIES OF EXTRA SPACE SET FORTH IN SECTION 5.1 ABOVE PROVES TO THE FALSE OR
MISLEADING IN ANY MATERIAL RESPECT, EXTRA SPACE SHALL INDEMNIFY, DEFEND (WITH
COUNSEL REASONABLY ACCEPTABLE TO HSRE), PROTECT, AND SAVE AND HOLD HARMLESS HSRE
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,
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.
5.4.3
SURVIVAL.
THE PROVISIONS