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 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
17
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 OF THIS SECTION 5.4 SHALL SURVIVE THE
CLOSING.
EXCEPT AS MAY OTHERWISE BE SPECIFICALLY SET FORTH IN THIS AGREEMENT,
THE OBLIGATIONS OF THE EXTRA SPACE UNDER THIS AGREEMENT SHALL NOT SURVIVE THE
CLOSING OR ANY TERMINATION OF THIS AGREEMENT.
6.
WARRANTIES AND REPRESENTATIONS OF HSRE.
6.1
WARRANTIES AND REPRESENTATIONS.
HSRE REPRESENTS AND WARRANTS TO
EXTRA SPACE THAT, AS OF THE DATE OF THIS AGREEMENT AND AT THE CLOSING:
6.1.1
AUTHORITY, ETC.
HSRE IS A LIMITED LIABILITY COMPANY, DULY
ORGANIZED AND VALIDLY EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE AND IS IN
GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE, AND HAS FULL POWER AND
LAWFUL AUTHORITY UNDER HSRE'S ORGANIZATIONAL DOCUMENTS TO ENTER INTO AND CARRY
OUT THE TERMS AND PROVISIONS OF THIS AGREEMENT AND TO EXECUTE AND DELIVER ALL
DOCUMENTS WHICH ARE CONTEMPLATED BY THIS AGREEMENT.
ALL ACTIONS NECESSARY TO
CONFER SUCH POWER AND AUTHORITY UPON THE PERSONS EXECUTING THIS AGREEMENT ON
BEHALF OF HSRE