Common use of Pre-Closing Default Clause in Contracts

Pre-Closing Default. In the event that prior to Closing, Extra Space breaches in any material respect any warranty or representation contained in this Agreement or fails in any material respect to comply with or perform any of the conditions to be complied with or any of the covenants, agreements or obligations to be performed by Extra Space 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 HSRE to Extra Space, HSRE, as HSRE’s exclusive remedies, shall be entitled to (i) terminate this Agreement by giving written notice thereof to Extra Space, whereupon, except as provided below in this Section 13.1.1 and except as expressly provided otherwise in this Agreement, neither party shall have any further rights or obligations under this Agreement; or (ii) enforce specific performance of Extra Space’s obligations under this Agreement; provided, however, that notwithstanding anything to the contrary in this Section 13.1.1, in the event of a termination by HSRE under (i) above, Extra Space shall, upon demand from HSRE, reimburse HSRE for the actual and reasonable out-of-pocket expenses paid or incurred by HSRE in connection with this Agreement and/or HSRE’s investigation or inspection of the Property in an amount not to exceed Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00). HSRE expressly agrees that in no event shall Extra Space 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, HSRE waives any right to claim or seek any such damages. The provisions of this Section 13.1.1 shall survive the Closing or any termination of this Agreement.