pursuant to this Agreement,
receive a reduction in the Purchase Price in the amount of the Allocated
Purchase Price of such Property and the payment to Purchaser of Purchaser's
Reimbursable Due Diligence Expenses (as hereinafter defined) allocable to such
Properties, (c) if such breach or default relates to Properties having, in the
aggregate, an Allocated Purchase Price equal to or greater than $50,000,000.00,
terminate this Agreement and receive an immediate refund of the Earnest Money
Deposit from Escrow Agent.
The foregoing remedies are Purchaser's sole and
exclusive remedies with respect to Seller's default, and Purchaser waives any
and all other remedies as may be available at law or in equity in connection
with Seller's default.
B.
IN THE EVENT THE CLOSING AND THE CONSUMMATION OF THE TRANSACTION
CONTEMPLATED HEREIN DO NOT OCCUR AS PROVIDED HEREIN BY REASON OF ANY BREACH OF
PURCHASER WHICH IS NOT CURED WITHIN FIVE (5) DAYS AFTER WRITTEN NOTICE OF SUCH
BREACH IS GIVEN TO PURCHASER BY SELLERS, PURCHASER AND SELLER AGREE THAT IT
WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO
31
ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER AS A RESULT THEREOF.
THEREFORE,
PURCHASER AND SELLER DO HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL NET
DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT PURCHASER BREACHES THIS
AGREEMENT AND FAILS TO COMPLETE THE PURCHASE OF EACH SITE IS AND SHALL BE, AS
SELLER'S SOLE AND EXCLUSIVE REMEDY THE RIGHT TO TERMINATE THIS AGREEMENT AND TO
RETAIN THE UNDISBURSED PORTION OF THE EARNEST MONEY DEPOSIT AS LIQUIDATED
DAMAGES, AND FOLLOWING SUCH TERMINATION NO PARTY HERETO SHALL HAVE ANY FURTHER
OBLIGATION OR LIABILITY TO ANY OTHER PARTY HERETO EXCEPT WITH RESPECT TO THOSE
PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY SURVIVE THE TERMINATION OF THIS
AGREEMENT.
UPON ANY SUCH BREACH BY PURCHASER, UNLESS OTHERWISE SPECIFIED, THIS
AGREEMENT SHALL BE TERMINATED WITH RESPECT TO EACH PROPERTY FOR WHICH A CLOSING
HAS NOT OCCURRED AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS
HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE RIGHT OF SELLER TO RECEIVE THE
UNDISBURSED PORTION OF THE EARNEST MONEY DEPOSIT FROM ESCROW AGENT AS AFORESAID
AND RETAIN THE UNDISBURSED PORTION OF THE EARNEST MONEY DEPOSIT AS LIQUIDATED
DAMAGES FROM PURCHASER AND THE OBLIGATION OF PURCHASER TO DELIVER TO SELLER THE
DOCUMENTS PURSUANT TO SECTION 6.C, ABOVE; PROVIDED, HOWEVER, THAT THIS
LIQUIDATED DAMAGES PROVISION SHALL NOT LIMIT SELLER'S RIGHT TO (A) RECEIVE
REIMBURSEMENT FOR OR RECOVER DAMAGES IN CONNECTION WITH PURCHASER'S INDEMNITY OF
SELLER AND/OR BREACH OF PURCHASER'S OBLIGATIONS PURSUANT TO SECTION 8.C, ABOVE,
OR (B) INJUNCTIVE RELIEF DUE TO PURCHASER'S BREACH OF PURCHASER'S OBLIGATIONS
UNDER SECTION 24 ABOVE.
THE PARTIES ACKNOWLEDGE THAT SUCH PAYMENT OF THE
EARNEST MONEY DEPOSIT IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER.
INTIALS:
MJK
KMW
AAAAA RENT-A-SPACE, ALAMEDA, LTD., LIMITED PARTNERSHIP, a California limited
Partnership
EXTRA SPACE STORAGE LLC
MJK
AAAAA RENT-A-SPACE, ALAMEDA II, LTD., LIMITED PARTNERSHIP, a California limited
Partnership
MJK
AAAAA RENT-A-SPACE, BERKELEY I, LTD., LIMITED