EXTRA SPACE WRITTEN
NOTICE OF SUCH FACTS OR CIRCUMSTANCES, AND, IN EACH INSTANCE, AS OF THE DATE OF
THIS AGREEMENT, HSRE DID NOT HAVE KNOWLEDGE OF SUCH FACTS OR CIRCUMSTANCES, HSRE
SHALL NOT HAVE ANY LIABILITY TO EITHER EXTRA SPACE OR HSRE-ESP WITH RESPECT TO
SUCH WARRANTY OR REPRESENTATION AND THE FAILURE TO REMAKE SUCH REPRESENTATION OR
WARRANTY SHALL NOT CONSTITUTE A DEFAULT HEREUNDER BY HSRE, EXCEPT IN THE EVENT
OR TO THE EXTENT THAT THE UNTRUTH OF SUCH REPRESENTATION OR WARRANTY IS THE
RESULT OF ANY WILLFUL OR INTENTIONAL ACT OF HSRE (OR ANYONE ACTING AT HIS, HER
OR ITS REQUEST) OR WILLFUL OR INTENTIONAL FAILURE TO ACT ON THE PART OF HSRE (OR
ANYONE ACTING AT HIS, HER OR ITS REQUEST) AND IN BREACH OF THIS AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 6.3, THE CONTINUING
TRUTH AND ACCURACY IN ALL MATERIAL RESPECTS OF ALL REPRESENTATIONS AND
WARRANTIES MADE BY HSRE IN SECTION 6.1 IN THIS AGREEMENT SHALL BE A CONDITION
PRECEDENT TO EXTRA SPACE'S OBLIGATION TO CLOSE.
6.4
SURVIVAL AND INDEMNIFICATION.
6.4.1
LIMITED SURVIVAL OF HSRE WARRANTIES AND REPRESENTATIONS.
WITH THE
EXCEPTION OF THE REPRESENTATIONS AND WARRANTIES IN SECTION 6.1.1, WHICH SHALL
SURVIVE INDEFINITELY, THE WARRANTIES AND REPRESENTATIONS CONTAINED IN
SECTION 6.1 ABOVE SHALL SURVIVE THE CLOSING AND SHALL INURE TO THE BENEFIT OF
EXTRA SPACE, 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
19
FIRST ANNIVERSARY OF THE CLOSING UNLESS EITHER EXTRA SPACE OR HSRE-ESP PRIOR
THERETO HAS GIVEN HSRE WRITTEN NOTICE OF ANY ALLEGED BREACH AND EITHER EXTRA
SPACE OR HSRE-ESP COMMENCES AND SERVES AN ACTION AGAINST HSRE WITHIN NINETY (90)
DAYS AFTER SUCH NOTICE IS GIVEN TO HSRE (AND, IN THE EVENT ANY SUCH SUIT IS
TIMELY COMMENCED BY EITHER EXTRA SPACE OR HSRE-ESP AND SERVED AGAINST HSRE,
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 EXTRA SPACE OR HSRE-ESP, SUCH
REPRESENTATIONS AND WARRANTIES SHALL THEREAFTER BE VOID AND OF NO FORCE OR
EFFECT.
6.4.2
INDEMNIFICATION.
SUBJECT TO THE PROVISIONS OF SECTION 6.4.1 ABOVE,
IF ANY CLAIM (DEFINED BELOW) ARISES BECAUSE OF ANY OF THE REPRESENTATIONS AND
WARRANTIES OF HSRE SET FORTH IN SECTION 6.1 ABOVE PROVES TO THE FALSE OR
MISLEADING IN ANY MATERIAL RESPECT, HSRE SHALL INDEMNIFY, DEFEND (WITH COUNSEL
REASONABLY ACCEPTABLE TO EXTRA SPACE), PROTECT, AND SAVE AND HOLD HARMLESS EXTRA
SPACE 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.
6.4.3
SURVIVAL.
THE PROVISIONS OF THIS SECTION 6.4