Leased Property Indemnity. Notwithstanding any provision to the contrary in this Article VII, in the event that (a) the Lessee elects the Return Option with respect to a Leased Property and (b) after paying to the Lessor any amounts due under Article XXII of the related Lease, the Lease Balance for such Leased Property shall not have been reduced to zero, then, except to the extent such amounts represent amounts due in respect of a Default or Event of Default, the Lessee shall promptly pay over to the Lessor on the Return Date, the shortfall between the Fair Market Value of such Leased Property as of the Return Date and the Fair Market Value anticipated for such date in the Appraisal delivered pursuant to Section 3.1(g) in an amount not to exceed such outstanding Lease Balance, unless the Lessee delivers a report from an appraiser selected by it and approved by the Lessor, in form and substance satisfactory to the Lessor and using approved methods satisfactory to the Lessor, which establishes that the reasons for the actual Fair Market Value of such Leased Property as of the Return Date being less than the Fair Market Value anticipated for such date in the Appraisal delivered pursuant to Section 3.1(g) were not due to any of the following events, circumstances or conditions, whether or not permitted under such Lease: (i) the failure to maintain such Leased Property as required by such Lease and the other Operative Documents, and in at least as good a condition as it was in on Closing Date, ordinary wear and tear excepted; (ii) the carrying out of or the failure to complete any modifications, improvements or Alterations; (iii) the existence of any environmental condition at or affecting such Leased Property that did not exist on the Closing Date; (iv) any defect, exception, easement, restriction or other encumbrance on or title to such Leased Property not existing on the Closing Date and not consented to by the Lessor; or (v) any other cause or condition within the power of the Lessee to control or affect (other than ordinary wear and tear) that did not exist on the Closing Date. Notwithstanding the foregoing, in no event shall Lessee have liability under this indemnity to the extent of any fraud, gross negligence or willful misconduct of any Indemnitee.
Leased Property Indemnity. In the event that (a) the Leased Property is subject to the Return Option and (b) after paying to the Lessor, for the benefit of the Participants, any amounts due under Article XXII of the Lease, the Adjusted Lease Balance shall not have been reduced to zero, then, except to the extent such amounts represent amounts due in respect of a Default or Event of Default and except to the extent attributable to the willful misconduct or gross negligence of the Lessor, any Agent, or any of their respective officers, agents, employees and Affiliates, the Lessee shall promptly pay over to the Lessor on the Return Date, in addition to the Recourse Deficiency Amount, the shortfall between the Fair Market Value of the Leased Property as of the Return Date, and an amount up to but not to exceed the outstanding Adjusted Lease Balance (the “Shortfall Amount” provided that, for the avoidance of doubt, in no case shall an amount equal to the Recourse Deficiency Amount and the Shortfall Amount paid to the Lessor under this Section 7.7 exceed the Adjusted Lease Balance),
