PERFORMED BY HSRE UNDER THE TERMS AND PROVISIONS OF THIS AGREEMENT AND
SUCH BREACH OR FAILURE CONTINUES FOR A PERIOD OF TEN (10) BUSINESS DAYS AFTER
WRITTEN NOTICE THEREOF FROM EXTRA SPACE TO HSRE, AS THE SOLE AND EXCLUSIVE
REMEDY OF EXTRA SPACE, EXTRA SPACE MAY TERMINATE THIS AGREEMENT BY WRITTEN
NOTICE TO HSRE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 13.2,
THE LIMITATIONS SET FORTH ABOVE IN THIS SECTION 13.2 SHALL NOT APPLY TO A
DEFAULT BY HSRE UNDER (1) SECTION 8.2.1, (2) ANY OTHER COVENANT OF HSRE UNDER
THIS AGREEMENT WHICH, PURSUANT TO THE EXPRESS PROVISIONS OF THIS AGREEMENT,
SURVIVES THE CLOSING, BUT ONLY TO THE EXTENT THAT THE TRANSACTION WHICH IS THE
SUBJECT OF THIS AGREEMENT CLOSES AND SUCH DEFAULT OCCURS AT OR AFTER THE
CLOSING, OR (3) ANY DOCUMENT DELIVERED BY HSRE AT THE CLOSING; PROVIDED,
HOWEVER, IN NO EVENT SHALL HSRE BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
LOSS OF BUSINESS PROFITS OR OPPORTUNITY) AND BY EXECUTION OF THIS AGREEMENT,
EXTRA SPACE WAIVES ANY RIGHT TO CLAIM
29
OR SEEK ANY SUCH DAMAGES.
THE PROVISIONS OF THIS SECTION 13.2 SHALL SURVIVE THE
CLOSING OR ANY TERMINATION OF THIS AGREEMENT.
AFTER CLOSING, EACH OF EXTRA SPACE AND HSRE SHALL, SUBJECT TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT, HAVE SUCH RIGHTS AND REMEDIES AS ARE AVAILABLE AT
LAW OR IN EQUITY WITH RESPECT TO A DEFAULT (OR BREACH OF A REPRESENTATION OR
WARRANTY) BY ANOTHER PARTY UNDER THIS AGREEMENT, EXCEPT (I) AS EXPRESSLY LIMITED
IN THIS AGREEMENT, AND (II) THAT NONE OF THE PARTIES HERETO SHALL BE ENTITLED TO
RECOVER FROM THE OTHER CONSEQUENTIAL OR SPECIAL DAMAGES.
14.
MISCELLANEOUS.
14.1
ENTIRE AGREEMENT.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT
BETWEEN EXTRA SPACE AND HSRE WITH RESPECT TO THE MATTERS DISCUSSED HEREIN.
THIS
AGREEMENT SHALL NOT BE MODIFIED OR AMENDED EXCEPT IN A WRITTEN DOCUMENT SIGNED
BY EXTRA SPACE AND HSRE.
14.2
TIME.
TIME IS OF THE ESSENCE OF THIS AGREEMENT.
IN THE
COMPUTATION OF ANY PERIOD OF TIME PROVIDED FOR IN THIS AGREEMENT OR BY LAW, THE
DAY OF THE ACT OR EVENT FROM WHICH THE PERIOD OF TIME RUNS SHALL BE EXCLUDED,
AND THE LAST DAY OF SUCH PERIOD SHALL BE INCLUDED, UNLESS IT IS A SATURDAY,
SUNDAY, MONDAY, OR LEGAL HOLIDAY, IN WHICH CASE THE PERIOD SHALL BE DEEMED TO
RUN UNTIL THE END OF THE NEXT DAY WHICH IS NOT A SATURDAY, SUNDAY, MONDAY, OR
LEGAL HOLIDAY.
14.3
NOTICES.
ANY NOTICES REQUIRED OR PERMITTED TO BE GIVEN HEREUNDER
SHALL BE IN WRITING AND SHALL BE (AS ELECTED BY THE PARTY GIVING SUCH NOTICE):
(I) PERSONALLY DELIVERED, (II) SENT BY A NATIONALLY RECOGNIZED OVERNIGHT COURIER
SERVICE, FEES PREPAID, OR (III) SENT BY TELECOPIER, IN EACH INSTANCE ADDRESSED
AS PROVIDED BELOW.
EITHER PARTY MAY CHANGE ITS ADDRESS FOR PURPOSES HEREOF BY
NOTICE GIVEN TO THE OTHER PARTY.
NOTICES HEREUNDER SHALL BE DIRECTED:
If to Extra Space:
Extra Space Storage LLC
2795 E. Cottonwood Parkway
Suite 400
Salt