AND DOCUMENTATION OF THE TRANSACTION WHICH IS THE SUBJECT OF THIS AGREEMENT AND
THE PERFORMANCE OF DUE DILIGENCE FOR THE BENEFIT OF HSRE.
AT CLOSING, THE
FOLLOWING COSTS SHALL BE PAID BY EXTRA SPACE AND/OR HSRE-ESP IN ACCORDANCE WITH
LOCAL PRACTICE AND CUSTOM IN THE AREA APPLICABLE TO EACH PROPERTY:
(A) THE COST
OF THE BASE TITLE POLICY, ENDORSEMENTS, REINSURANCE OR COINSURANCE,
(B) TRANSFER, DOCUMENTARY AND SIMILAR TAXES RELATED TO THE PURCHASE OF THE ESP
INTERESTS, IF ANY; PROVIDED, HOWEVER, THAT IN THE ABSENCE OF LOCAL PRACTICE AND
CUSTOM RELATING TO THE PAYMENT OF SUCH COSTS, SUCH COSTS SHALL BE PAID BY
HSRE-ESP.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 4.3.4, IF
THE CLOSING DOES NOT OCCUR, NO PARTY TO THIS AGREEMENT SHALL BE RESPONSIBLE FOR
REIMBURSING ANY OTHER PARTY TO THIS AGREEMENT FOR FEES, EXPENSES COSTS INCURRED
BY OR FOR THE BENEFIT OF SUCH PARTY EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN
SECTION 13.1.2 BELOW.
4.3.5
SURVIVAL.
THE OBLIGATIONS UNDER THIS SECTION 4.3 SHALL SURVIVE
CLOSING.
5.
REPRESENTATIONS AND WARRANTIES OF EXTRA SPACE.
5.1
WARRANTIES AND REPRESENTATIONS
EXTRA SPACE REPRESENTS AND
WARRANTS TO HSRE THAT, AS OF THE DATE OF THIS AGREEMENT AND AT THE CLOSING:
5.1.1
AUTHORITY, ETC.
EXTRA SPACE IS A LIMITED LIABILITY COMPANY, DULY
ORGANIZED AND VALIDLY EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE AND IS IN
11
GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE.
EXTRA SPACE HAS FULL
POWER AND LAWFUL AUTHORITY UNDER ITS 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
(AND ALL DOCUMENTS WHICH ARE CONTEMPLATED BY THIS AGREEMENT TO BE EXECUTED ON
BEHALF OF EXTRA SPACE) HAVE BEEN TAKEN.
EXTRA SPACE'S EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT WILL NOT RESULT IN ANY VIOLATION OF, OR DEFAULT
UNDER, OR REQUIRE ANY NOTICE OR CONSENT UNDER EXTRA SPACE'S ORGANIZATIONAL
DOCUMENTS.
5.1.2
NO OTHER AGREEMENTS.
EXTRA SPACE HAS NOT ENTERED INTO ANY
AGREEMENT TO DISPOSE OF ITS INTEREST IN THE PROPERTY OR ANY PART THEREOF.
EXTRA
SPACE HAS NOT ENTERED INTO ANY AGREEMENT TO DISPOSE OF THE ESP INTERESTS, EXCEPT
FOR THIS AGREEMENT.
5.1.3
TITLE AND SURVEY.
AT CLOSING, ESP 51 OR ESP TEXAS (AS APPLICABLE)
SHALL OWN A FEE SIMPLE ESTATE IN AND TO THE PROPERTY RELATING TO THE DIRECT
FACILITIES AND ESP TEXAS SHALL OWN A FEE SIMPLE ESTATE IN AND TO THE PROPERTY
RELATING TO THE TEXAS FACILITIES, SUBJECT ONLY TO: (I) THE APPROVED TITLE
MATTERS (AS DEFINED IN SECTION 8.2.3 HERETO), (II) THE LIEN OF GENERAL REAL
ESTATE TAXES WHICH ARE NOT YET DUE OR PAYABLE AS OF CLOSING, (III) THE RIGHTS OF
TENANTS, AS TENANTS ONLY, UNDER THE LEASES (WITH NO OPTIONS TO PURCHASE OR
RIGHTS OF FIRST REFUSAL TO PURCHASE THEREUNDER), (IV) ACTS OF, BY OR THROUGH
HSRE, (V) MATTERS DISCLOSED BY THE SURVEYS OF THE PREMISES