TRADEMARKS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH ABOVE OR OTHERWISE CONTAINED
HEREIN, "PROPERTY" EXPRESSLY EXCLUDES (I) ALL PROPERTY OWNED BY TENANTS OR OTHER
USERS OR OCCUPANTS OF THE PREMISES (OTHER THAN ESP 51 AND ESP TEXAS), (II) ALL
PROPERTY OWNED BY THE PROPERTY MANAGER OF THE PREMISES, (III) ALL PROPERTY OWNED
BY ANY VENDOR UNDER ANY CONTRACT, (IV)
ALL RIGHTS AND LIABILITIES OF EITHER ESP
51 OR ESP TEXAS IN, TO AND UNDER THOSE LITIGATION MATTERS, IF ANY, DESCRIBED IN
SCHEDULE 3.1 ATTACHED HERETO.
3.2
EXISTING INDEBTEDNESS.
AS USED IN THIS AGREEMENT, THE TERM
"EXISTING INDEBTEDNESS" SHALL MEAN THOSE CERTAIN LOANS EVIDENCED BY SEPARATE
PROMISSORY NOTES WITH RESPECT TO EACH OF THE FACILITIES IN WHICH EITHER ESP 51
OR ESP TEXAS APPEARS AS BORROWER AND WACHOVIA BANK N.A. APPEARS AS LENDER (EACH
A "THIRD PARTY NOTE" AND COLLECTIVELY THE "THIRD PARTY NOTES").
THE THIRD PARTY
NOTES ARE SECURED BY ONE OR MORE MORTGAGES OR DEEDS OF TRUST AGAINST THE
PROPERTY (EACH A THE "THIRD PARTY MORTGAGE" AND COLLECTIVELY THE "THIRD PARTY
MORTGAGES").
EXTRA SPACE AND HSRE AGREE AS FOLLOWS WITH RESPECT TO THE EXISTING
INDEBTEDNESS:
3.2.1
THE OBLIGATIONS OF EXTRA SPACE AND HSRE UNDER THIS AGREEMENT SHALL
BE SUBJECT TO THE FOLLOWING:
HSRE'S APPROVAL, PRIOR TO THE EXPIRATION OF THE DUE
DILIGENCE PERIOD (DEFINED BELOW) OF THE EXISTING INDEBTEDNESS, INCLUDING,
4
BUT NOT LIMITED TO, HSRE'S APPROVAL OF THE AMOUNT, INTEREST RATE, PAYMENT
SCHEDULE, REPAYMENT TERM AND OTHER TERMS OF THE EXISTING INDEBTEDNESS, AND THE
FORM OF THE DOCUMENTS EVIDENCING AND OR SECURING THE EXISTING INDEBTEDNESS,
INCLUDING, BUT NOT LIMITED TO, ANY GUARANTEES OF THE EXISTING INDEBTEDNESS (THE
"THIRD PARTY LOAN DOCUMENTS"), WHICH APPROVALS SHALL BE IN HSRE'S SOLE AND
ABSOLUTE DISCRETION.
THE CURRENT HOLDER OR HOLDERS OF THE EXISTING
INDEBTEDNESS (THE "LENDER") AND EACH SERVICER OF THE EXISTING INDEBTEDNESS
CONSENTING TO THE TRANSACTION WHICH IS THE SUBJECT OF THIS AGREEMENT AND
HSRE-ESP'S ASSUMPTION OF THE EXISTING INDEBTEDNESS, ALL ON TERMS THAT ARE
ACCEPTABLE TO HSRE AND EXTRA SPACE, IN THEIR RESPECTIVE SOLE DISCRETIONS (THE
"LENDER CONDITIONS").
THE PARTIES ACKNOWLEDGE THAT THE LENDER MAY REQUIRE AS A
LENDER CONDITION THAT THE EXISTING INDEBTEDNESS BE GUARANTEED BY HSRE-ESP AND
THAT EXTRA SPACE CONTINUE TO PROVIDE CERTAIN GUARANTEES AND/OR INDEMNIFICATIONS
WITH RESPECT TO THE EXISTING INDEBTEDNESS.
SUBJECT TO THE TERMS AND CONDITIONS
OF THIS AGREEMENT, EXTRA SPACE AGREES TO PROVIDE SUCH GUARANTEES AND/OR
INDEMNIFICATIONS.
THE PARTIES ALSO ACKNOWLEDGE THAT (I) ANY REQUIRED GUARANTIES
OR INDEMNIFICATIONS FROM EITHER HSRE-ESP OR EXTRA SPACE THAT ARE MORE BURDENSOME
OR ONEROUS, IN ANY MATERIAL RESPECTS, THAN THE EXISTING GUARANTEES AND
INDEMNIFICATIONS PROVIDED BY EXTRA SPACE SHALL NOT BE ACCEPTABLE, (II) ANY
LENDER CONDITIONS THAT REQUIRE ANY GUARANTIES OR INDEMNIFICATIONS FROM HSRE OR
ANY AFFILIATE OF HSRE (OTHER THAN HSRE-ESP) ARE NOT ACCEPTABLE TO HSRE.
3.2.2
EXTRA SPACE AGREES TO PROMPTLY APPLY FOR AND PURSUE WITH REASONABLE
DILIGENCE LENDER'S CONSENT TO THE TRANSACTION WHICH IS THE SUBJECT OF THIS
AGREEMENT.
EXTRA SPACE WILL ADVANCE THE NON-REFUNDABLE AMOUNTS CHARGED BY THE
LENDER AS A