Common use of Leased Property Indemnity Clause in Contracts

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), BUSINESS.29620189.12 unless an appraisal conducted by an independent and capable third-party appraiser engaged by the Lessor and reasonably acceptable to the Lessee establishing the Fair Market Value of the Leased Property as of the Return Date confirms that the reason such Fair Market Value is less than the outstanding Adjusted Lease Balance is not due to any of the following events, circumstances or conditions, whether or not permitted under the Lease: (i) the failure to maintain the Leased Property as required by the Lease and the other Operative Documents in any material respect, and in at least as good a condition in all material respects as it was in on the 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 the Leased Property that did not exist on the Closing Date; (iv) any material defect, exception, easement, restriction or other encumbrance on or title to the 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.

Leased Property Indemnity. In Notwithstanding any provision to the contrary in this Article VII, in the event that (a) the Leased Property is subject to Lessee elects the Return Option with respect to a Leased Property and (b) after paying to the Lessor, for the benefit of the Participants, Lessor any amounts due under Article XXII of the related Lease, the Adjusted 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 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 AffiliatesDefault, 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), BUSINESS.29620189.12 unless an appraisal conducted by an independent and capable third-party appraiser engaged by the Lessor and reasonably acceptable to the Lessee establishing the Fair Market Value of the such Leased Property as of the Return Date confirms that and the reason such Fair Market Value is 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 outstanding Adjusted Lease Balance is 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 the such Lease: (i) the failure to maintain the such Leased Property as required by the such Lease and the other Operative Documents in any material respectDocuments, and in at least as good a condition in all material respects as it was in on Closing Date or the Closing Completion Date, as applicable, ordinary wear and tear excepted; (ii) the carrying out of or the failure to complete any modifications, improvements or Alterations; (iii) if such Leased Property consists of New Improvements (Fremont 3E), any change or modification to the Plans and Specifications in violation of Section 3.2 of the Construction Agency Agreement; (iv) the existence of any environmental condition at or affecting the such Leased Property that did not exist on the Closing Date (subject, in the case of any environmental condition arising prior to the Base Term Commencement Date, to the limitations set forth in Section 7.1(f) hereof); (ivv) any material defect, exception, easement, restriction or other encumbrance on or title to the such Leased Property not existing on the Closing Date and not consented to by the Lessor; or (vvi) 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 (subject, in the case of any cause or condition arising prior to the Base Term Commencement Date, to the limitations set forth in Section 7.1(f) hereof). 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) Lessee elects the Leased Property is subject to the Return Option Sale Option; and (b) after paying to the LessorCertificate Trustee, for the benefit of the Participants, any amounts due under Article XXII XXI 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 then Lessee shall promptly pay over to the Lessor on the Return Date, in addition Lease Expiration Date the shortfall unless Lessee delivers a report from an Appraiser using appraisal methods satisfactory to the Recourse Deficiency AmountRequired Participants, which establishes that the shortfall between reasons for the actual 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), BUSINESS.29620189.12 unless an appraisal conducted by an independent and capable third-party appraiser engaged by the Lessor and reasonably acceptable to the Lessee establishing Expiration Date being less than the Fair Market Value of anticipated for such date in the Leased Property as of the Return Date confirms that the reason such Fair Market Value is less than the outstanding Adjusted Lease Balance is Appraisal delivered pursuant to SECTION 3.1(h) was not due to any of the following events, circumstances or conditions, whether or not permitted under the Lease: Lease (i) the failure to maintain and use the Leased Property or any portion thereof as required by the Lease and the other Operative Documents in any material respectDocuments, and to keep the Leased Property or any portion thereof in at least as good a condition in all material respects as it was in on the Closing Advance Date, ordinary wear and tear excepted; (ii) the carrying out of or the failure to complete undertake any modifications, improvements or Alterationsalterations whether or not permitted pursuant to the Operative Documents; (iii) the existence of any environmental condition at or affecting the Leased Property that did whether or not exist such condition existed on the Closing Advance Date; (iv) any material defect, exception, easement, restriction or other encumbrance on or title to for the Leased Property or any portion thereof whether or not created or existing on the Closing Date and Advance Date; (v) the dependence of the Leased Property on any improvement or facility not consented to by fully located on the LessorLeased Property; (vi) the existence of any sublease of the Leased Property or any portion thereof, whether or not permitted under the Operative Documents; or (vvii) 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.

Leased Property Indemnity. In Notwithstanding any provision to the contrary in this Article VII, in the event that (a) the Leased Property is subject to Lessee elects 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 AffiliatesDefault, 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), BUSINESS.29620189.12 unless an appraisal conducted by an independent and capable third-party appraiser engaged by the Lessor and reasonably acceptable to the Lessee establishing the Fair Market Value of the Leased Property as of the Return Date confirms that the reason such Fair Market Value is less than the outstanding Adjusted Lease Balance is not due to any of the following events, circumstances or conditions, whether or not permitted under the Lease: (i) the failure to maintain the Leased Property as required by the Lease and the other Operative Documents in any material respectDocuments, and in at least as good a condition in all material respects as it was in on the Closing Completion Date, ordinary wear and tear excepted; (ii) the carrying out of or the failure to complete any modifications, improvements or Alterations; (iii) any change or modification to the Plans and Specifications in violation of Section 3.2 of the Construction and Development Agreement; (iv) the existence of any environmental condition at or affecting the Leased Property that did not exist on the Closing Date (subject, in the case of any environmental condition arising prior to the Base Term Commencement Date, to the limitations set forth in Section 7.1(f) hereof); (ivv) any material defect, exception, easement, restriction or other encumbrance on or title to the Leased Property not existing on the Closing Date and not consented to by the Lessor; or (vvi) 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 (subject, in the case of any cause or condition arising prior to the Base Term Commencement Date, to the limitations set forth in Section 7.1(f) hereof).