SPACE HAS NOT ENTERED INTO ANY SIDE LETTERS OR
OTHER WRITTEN INSTRUMENTS RELATING TO THE ESP INTERESTS OR THE TEXAS INTERESTS
OTHER THAN THE AGREEMENTS DESCRIBED IN SECTION 5.1.21 OTHER THAN THOSE DESCRIBED
ON SCHEDULE 5.1.22.
5.1.23
NO UNDISCLOSED LIABILITIES.
AS OF THE DATE OF THIS AGREEMENT,
EXCEPT FOR TRADE PAYABLES INCURRED IN THE ORDINARY COURSE OF BUSINESS
RESPECTIVELY OF ESP 51, ESP 57, ESP TEXAS GP AND ESP TEXAS AND EXCEPT AS SHOWN
ON THE BALANCE SHEET ATTACHED HERETO AS SCHEDULE 5.1.23 OR DISCLOSED IN THE
FINANCIAL STATEMENTS (INCLUDING THE FOOTNOTES THERETO) THAT WERE DELIVERED TO
HSRE PRIOR TO THE DATE OF THIS AGREEMENT (THE "ESP FINANCIALS"), NONE OF ESP 51,
ESP 57, ESP TEXAS GP NOR ESP TEXAS HAS ANY INDEBTEDNESS OR LIABILITIES (WHETHER
ACCRUED, ABSOLUTE, CONTINGENT OR OTHERWISE; WHETHER DUE OR TO BECOME DUE; AND
INCLUDING,
15
WITHOUT LIMITATION, WITH RESPECT TO TAXES) THAT WOULD NORMALLY BE DISCLOSED ON A
BALANCE SHEET (INCLUDING ITS FOOTNOTES) THAT WAS PREPARED IN ACCORDANCE WITH
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES IF SUCH INDEBTEDNESS OR LIABILITIES HAD
BEEN KNOWN AT THE TIME OF THE BALANCE SHEET'S PREPARATION.
THE ESP FINANCIALS
ARE TRUE, CORRECT AND COMPLETE IN ALL MATERIAL RESPECTS.
5.1.24
ERISA.
NEITHER ESP 51, ESP 57, ESP TEXAS GP NOR ESP TEXAS SPONSORS,
MAINTAINS, CONTRIBUTES TO OR HAS ANY OBLIGATION TO SPONSOR, MAINTAIN OR
CONTRIBUTE TO, OR HAS (OR MAY HAVE) LIABILITY UNDER ANY "EMPLOYEE BENEFIT PLAN,"
AS DEFINED IN SECTION 3(3) OF ERISA (WHETHER OR NOT SUBJECT TO ERISA), OR ANY
EMPLOYMENT, CONSULTING, OR OTHER EMPLOYEE BENEFIT PLAN, UNDERSTANDING,
AGREEMENT, ARRANGEMENT, POLICY OR PAYROLL PRACTICE, INCLUDING, WITHOUT
LIMITATION, SEVERANCE PAY, SICK LEAVE, VACATION PAY, SALARY CONTINUATION FOR
DISABILITY, RETIREMENT, DEFERRED COMPENSATION, BONUS, STOCK PURCHASE, STOCK
OPTION, STOCK OWNERSHIP, STOCK APPRECIATION RIGHTS, PHANTOM STOCK, EQUITY (OR
EQUITY-BASED), LAYOFF, DEPENDENT CARE, LEGAL SERVICES, CAFETERIA, HEALTH,
DENTAL, VISION, ACCIDENT, CHANGE OF CONTROL, TERMINATION, HOSPITALIZATION,
MEDICAL INSURANCE, LIFE INSURANCE, TUITION REIMBURSEMENT AND SCHOLARSHIP
PROGRAMS.
5.1.25
EXISTING INDEBTEDNESS.
TO EXTRA SPACE'S KNOWLEDGE, SCHEDULE 5.1.25
SETS FORTH THE OUTSTANDING PRINCIPAL BALANCE OWING UNDER EACH OF THE THIRD PARTY
NOTES.
NONE OF EXTRA SPACE, ESP 51 OR ESP TEXAS HAS RECEIVED WRITTEN NOTICE
THAT AN EVENT OF DEFAULT BY EITHER ESP 51 OR ESP TEXAS EXISTS UNDER THE THIRD
PARTY LOAN DOCUMENTS AND, TO EXTRA SPACE'S KNOWLEDGE, NO EVENTS HAVE OCCURRED OR
CONDITIONS EXIST WHICH, WITH THE GIVING OF NOTICE OR LAPSE OF TIME, OR BOTH,
WOULD CONSTITUTE SUCH AN EVENT OF DEFAULT.
EXTRA SPACE AGREES THAT AT THE
CLOSING, EXTRA SPACE WILL AMEND AND SUPPLEMENT THIS SECTION 5.1.25 TO PROVIDE A
REPRESENTATION AS TO AMOUNT OF THE OUTSTANDING BALANCE, AS OF THE CLOSING, OF
EACH RESERVE BEING HELD BY LENDER, ON A FACILITY BY FACILITY BASIS, WITH RESPECT
TO THE EXISTING INDEBTEDNESS.
PURSUANT TO SECTION 3.2.4, EXTRA SPACE WILL,
DURING THE DUE DILIGENCE PERIOD, MAKE AVAILABLE TO HSRE TRUE AND CORRECT COPIES
OF THE THIRD PARTY LOAN DOCUMENTS FOR INSPECTION AND REVIEW.
WITHIN TEN
(10) BUSINESS DAYS AFTER THE FULL EXECUTION OF THIS AGREEMENT, EXTRA SPACE SHALL