Common use of Leased Property Indemnity Clause in Contracts

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. Notwithstanding any provision to the contrary in this Article VII, in In the event that (a) the Lessee elects Leased Property is subject to the Return Option with respect to a Leased Property and (b) after paying to the Lessor Lessor, for the benefit of the Participants, 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 DefaultDefault 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 such 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 and confirms that the reason such 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 is less than the Fair Market Value anticipated for such date in the Appraisal delivered pursuant to Section 3.1(g) were outstanding Adjusted Lease Balance is not due to any of the following events, circumstances or conditions, whether or not permitted under such the Lease: (i) the failure to maintain such the Leased Property as required by such the Lease and the other Operative DocumentsDocuments 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 such 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 such 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. 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. 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 Lessor, for the benefit of the Participants, 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 the Leased Property as of the Return Date Date, and the Fair Market Value anticipated for such date in the Appraisal delivered pursuant to Section 3.1(g) in an amount up to but not to exceed such the outstanding Lease Balance, unless an appraisal establishing 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 the Leased Property as of confirms that the Return Date being reason such Fair Market Value is less than the Fair Market Value anticipated for such date in the Appraisal delivered pursuant to Section 3.1(g) were outstanding Lease Balance is not due to any of the following events, circumstances or conditions, whether or not permitted under such the Lease: (i) the failure to maintain such the Leased Property as required by such the Lease and the other Operative Documents, and in at least as good a condition as it was in on Closing the 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 such 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 defect, exception, easement, restriction or other encumbrance on or title to such 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. Notwithstanding the foregoingDate (subject, in no event shall Lessee have liability under this indemnity the case of any cause or condition arising prior to the extent of any fraudBase Term Commencement Date, gross negligence or willful misconduct of any Indemniteeto the limitations set forth in Section 7.1(f) hereof).

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 or the 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 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 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 (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. Notwithstanding any provision to the contrary in this Article VII, in In the event that (a) the Lessee elects the Return Option with respect to a Leased Property Sale Option; and (b) after paying to Certificate Trustee, for the Lessor benefit of the Participants, any amounts due under Article XXII XXI 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 then Lessee shall promptly pay over to the Lessor on the Return Date, Lease Expiration 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 Appraiser using approved appraisal methods satisfactory to the LessorRequired Participants, which establishes that the reasons for the actual Fair Market Value of such the Leased Property as of the Return Lease Expiration Date being less than the Fair Market Value anticipated for such date in the Appraisal delivered pursuant to Section 3.1(gSECTION 3.1(h) were was not due to any of the following events, circumstances or conditions, whether or not permitted under such Lease: the Lease (i) the failure to maintain such and use the Leased Property or any portion thereof as required by such the Lease and the other Operative Documents, and to keep the Leased Property or any portion thereof in at least as good a condition as it was in on Closing the 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 such the Leased Property that did whether or not exist such condition existed on the Closing Advance Date; (iv) any defect, exception, easement, restriction or other encumbrance on or title to such 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. 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.