Common use of Restoration Following Casualty Clause in Contracts

Restoration Following Casualty. (a) If all or any part of the Mortgaged Property shall be damaged or destroyed by a casualty, Mortgagor shall immediately give written notice thereof to Mortgagee and the appropriate insurer, and Mortgagee is authorized and empowered (but not obligated or required) to make proof of loss and to settle, adjust or compromise any claims for loss, damage or destruction under any policies of insurance required under this Mortgage. All proceeds of insurance, as provided in Section 5.5, shall be paid to Mortgagee and shall be applied first to the payment of all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee in obtaining such proceeds, and second, at the option of Mortgagee, either to the payment of the Obligations whether or not due, in such order as Mortgagee may elect, or to the restoration, repair, or replacement of the Mortgaged Property. If Mortgagee elects to apply the insurance proceeds to the restoration, repair or replacement of the Mortgaged Property, such proceeds shall be disbursed to Mortgagor as work progresses pursuant to a construction and disbursing agreement in form and content satisfactory to Mortgagee in its sole discretion, and Mortgagor shall promptly and diligently, regardless of whether there shall be sufficient insurance proceeds therefor, restore, repair and rebuild the Mortgaged Property to the equivalent of its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligations. The election by Mortgagee to apply the insurance proceeds to the restoration, repair or replacement of the Mortgaged Property shall not affect the lien of this Mortgage or affect or reduce the Obligations. (b) If all or any of the Mortgaged Property shall be damaged or destroyed by a casualty not covered by insurance under Section 5.5, or, if so covered, the insurer fails or refuses to pay the claim within thirty (30) days following the filing thereof, Mortgagor shall immediately give written notice thereof to Mortgagee, and Mortgagor shall promptly and diligently, at Mortgagor's sole cost and expense, restore, repair and rebuild the Mortgaged Property to the equivalent of its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligations. (c) If any work required to be performed under Subsections (a) or (b) above, or both, shall involve an estimated expenditure of more than $25,000.00, no such work shall be undertaken until plans and specifications therefor, prepared by an architect satisfactory to Mortgagee, have been submitted to and approved by Mortgagee.

Restoration Following Casualty. (a) If all or any part of the Improvements or any of the Mortgaged Property shall be damaged or destroyed by a casualtycasualty covered by insurance under Section 5.5, Mortgagor shall immediately give written notice thereof to Mortgagee and the appropriate insurer, and and, if Mortgagor fails to diligently prosecute, Mortgagee is shall be authorized and empowered (but not obligated or required) to make proof of loss and to settle, adjust or compromise any claims for loss, damage or destruction under any policies of insurance required under this Mortgage. All So long as there is no continuing Event of Default, all proceeds of insurance, as provided in Section 5.5, shall be paid to Mortgagee and shall be applied first to the payment of all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee in obtaining such proceeds, and second, at the option of Mortgagee, either to the payment of the Obligations whether or not due, in such order as Mortgagee may elect, or second to the restoration, repair, or replacement of the Improvements and the other Mortgaged PropertyProperty damaged or destroyed. If Mortgagee elects to apply the insurance proceeds to the restoration, repair or replacement of the Mortgaged Property, such Such proceeds shall be disbursed to Mortgagor as work progresses pursuant to a construction and disbursing agreement in form and content satisfactory to Mortgagee in its sole discretion and Mortgagor in its reasonable discretion, and Mortgagor shall promptly and diligently, regardless of whether there shall be sufficient insurance proceeds therefor, restore, repair and rebuild the Improvements and the other Mortgaged Property to the equivalent of its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligations. The election by Mortgagee to apply the insurance proceeds to the restoration, repair or replacement of the Mortgaged Property shall not affect the lien of this Mortgage or affect or reduce the Obligations. (b) If all or any of the Improvements or the other Mortgaged Property shall be damaged or destroyed by a casualty not covered by insurance under Section 5.5, or, if so covered, the insurer fails or refuses to pay the claim within thirty ninety (3090) days following the filing thereof, Mortgagor shall immediately give written notice thereof to Mortgagee, and Mortgagor shall promptly and diligently, at Mortgagor's sole cost and expense, restore, repair and rebuild the Improvements and the other Mortgaged Property to the equivalent of its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligations. (c) If any work required to be performed under Subsections (a) or (b) above, or both, shall involve an estimated expenditure of more than $25,000.00, no such work shall be undertaken until plans and specifications therefor, prepared by an architect reasonably satisfactory to Mortgagee, have been submitted to and approved by Mortgagee.

Restoration Following Casualty. (a) If After the happening of any casualty to the Mortgaged Property or any part thereof, Mortgagor shall give prompt written notice thereof to Mortgagee. In the event of any damage or destruction of all or any part of the Mortgaged Property Property, all proceeds of insurance shall be damaged or destroyed by a casualtypayable to Mortgagee, and Mortgagor hereby authorizes and directs any affected insurance company to make payment of such proceeds directly to Mortgagee. Mortgagor shall immediately give written notice thereof obtain Mortgagee's approval prior to Mortgagee and the appropriate insurerany settlement, and Mortgagee is authorized and empowered (but not obligated or required) to make proof of loss and to settle, adjust adjustment or compromise of any claims for loss, damage or destruction under any policy or policies of insurance required under this Mortgage. All proceeds of insurance, and Mortgagee shall have the right to participate with Mortgagor in negotiation of any such settlement, adjustment or compromise. Mortgagee shall also have the right to appear with Mortgagor in any action against an insurer based on a claim for loss, damage or destruction under any policy or policies of insurance. (b) All compensation, proceeds, damages, claims, insurance recoveries, rights of action and payments which Mortgagor may receive or to which Mortgagor may become entitled with respect to the Mortgaged Property or any part thereof as provided a result of any casualty, except as set forth below in Section 5.5this SECTION 5.6 (herein the "PROCEEDS"), shall be paid over to Mortgagee and shall be applied first to the payment toward reimbursement of all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by of Mortgagee in obtaining such proceedsconnection with recovery of the same, and secondthen, at except as set forth below in this SECTION 5.6, shall be applied in the option sole and absolute discretion of Mortgagee, either without regard to the adequacy of Mortgagee's security hereunder, to the payment or prepayment of the Obligations whether or not due, Indebtedness (without any prepayment premium) in such order as Mortgagee may electdetermine, and any amounts so applied shall reduce the Indebtedness pro tanto. Any application of the Proceeds or any portion thereof to the restorationIndebtedness shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice. (c) Notwithstanding anything to the contrary contained in this SECTION 5.6, repairin the event that the Proceeds payable with respect to any casualty shall be less than or equal to $150,000.00, then Mortgagor shall have the right to settle the insurance claim, and the right to retain the Proceeds, so long as Mortgagor shall restore the Mortgaged Property to its condition prior to such casualty, in a good and workmanlike manner, in compliance with any applicable legal requirements and the requirements of any lease, free and clear of liens, and shall remit to Mortgagee promptly upon completion of such restoration any remaining balance of such Proceeds not used in the restoration of the Mortgaged Property for application to the principal of the Indebtedness. (d) Subject to the other provisions of this SECTION 5.6, and if all of the following apply: (i) the Proceeds have been deposited with Mortgagee; (ii) in the case of insurance proceeds, the insurance carrier has not denied liability to a named insured; (iii) Mortgagee shall have been furnished with an estimate of the cost of restoration accompanied by an architect's certificate as to such costs and appropriate final plans and specifications for reconstruction of the Buildings, all of which shall be approved by Mortgagee; (iv) the Buildings so restored or replacement rebuilt shall be of at least equal value and substantially the same character as prior to the damage or destruction and appropriate for the purposes for which they were originally erected; (v) Mortgagor shall have furnished Mortgagee with evidence satisfactory to Mortgagee that all Buildings so restored and/or reconstructed and their use fully comply with all zoning and building laws, ordinances and regulations, and with all other applicable federal, state, and municipal laws and requirements; (vi) to the extent that the estimated cost of restoration exceeds the Proceeds available, Mortgagor shall have furnished a satisfactory bond of completion or deposited with Mortgagee such sums as may be necessary to pay such excess costs; (vii) Mortgagee shall have received notice within thirty (30) days of the fire or other hazard or of the condemnation proceedings specifying the date of such fire or other hazard or the date the notice of condemnation proceedings was received and the request to Mortgagee to make said Proceeds available to Mortgagor; (viii) the aggregate monthly net income under all Leases, together with the proceeds of any business interruption insurance with respect thereto, shall be sufficient to pay during the period of reconstruction the monthly installments required to be paid upon the Indebtedness as well as all impound payments which may be required under SECTION 5.3 for taxes and insurance, and following reconstruction shall be sufficient to pay the aforesaid sums as well as all other operating costs and charges of the Mortgaged Property. If ; (ix) all Leases described in (viii) above shall be in full force and effect as evidenced by estoppel certificates satisfactory to Mortgagee; (x) Mortgagor shall not then be in default under the Note, this Mortgage or any of the other Loan Instruments, and (xi) Mortgagee elects to apply the insurance proceeds determines in its sole and absolute discretion that such restoration or reconstruction can be completed at least three (3) months prior to the Maturity Date; THEN the Proceeds, less the actual costs, fees and expenses, if any, incurred in connection with adjustment of loss and Mortgagee's administrative expenses relating to such loss and the disbursement of the Proceeds shall be applied by Mortgagee to the payment of all the costs of the aforesaid restoration, repair repairs, replacement, rebuilding or replacement alterations, including the cost of temporary repairs or for the protection of property pending the completion of permanent restoration, repairs, replacements, rebuilding or alterations (all of which temporary repairs, protection of property and permanent restoration, repairs, replacement, rebuilding or alterations are hereinafter collectively referred to as the "RESTORATION"), and shall be paid out from time to time as such Restoration progresses upon the written request of Mortgagor if the work for which payment is requested has been done in a good and workmanlike manner and substantially in accordance with the plans and specifications therefor. Each request shall be accompanied by the following: (i) A certificate signed by Mortgagor, dated not more than thirty (30) days prior to such request, setting forth the following: (A) That the sum then requested either has been paid, or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished materials for the restoration therein specified or have paid for the same, the names and addresses of such persons, a brief description of such services and materials, the several amounts so paid or due to each of said persons in respect thereof (together with supporting statements and invoices for the same), that no part of such expenditures has been or is being made the basis of any previous or then pending request for the withdrawal of Proceeds or has been made out of any of the Proceeds received by Mortgagor, and that the sum then requested does not exceed the value of the services and materials described in the certificate. (B) That, except for the amount, if any, stated pursuant to the foregoing subclause (i)(A) in such certificate to be due for services or materials, there is no outstanding indebtedness known to the persons signing such certificate, after due inquiry, which is then due for labor, wages, materials, supplies or services in connection with such Restoration. (C) That the costs, as estimated by the persons signing such certificate, of the Restoration required to be done subsequent to the date of such certificate in order to complete and pay for the same, do not exceed the Proceeds, plus any amount or security approved by Mortgagee and deposited by Mortgagor to defray such costs and remaining in the hands of Mortgagee after payment of the sum requested in such certificate. (ii) A title insurance report or other evidence satisfactory to Mortgagee to the effect that there has not been filed with respect to the Mortgaged Property, or any part thereof, any vendor's, contractor's, mechanics', laborer's, materialmen's' or other lien which has not been discharged of record or bonded, except such proceeds as will be disbursed by payment of the amount then requested. (iii) A certificate signed by the architect and/or engineer in charge of the Restoration, who shall be disbursed selected by Mortgagor and approved in writing by Mortgagee, certifying to the facts set forth in subclause (i) above, and that the Restoration is proceeding in accordance with the plans and specifications approved by Mortgagee and in accordance with all zoning, subdivision and other governmental laws, ordinances, rules and regulations. Upon compliance with the foregoing provisions, Mortgagee shall, out of Proceeds (and the amount of security approved by Mortgagee, if any, deposited by Mortgagor to defray the costs of the Restoration), pay or cause to be paid to Mortgagor as work progresses or the persons named (pursuant to a construction subclause (i)(A) above) in such certificate the respective amounts stated therein to have been paid by Mortgagor or to be due to them, as the case may be. (e) If the Proceeds at the time held by Mortgagee, less the actual costs, fees and disbursing agreement expenses, if any, incurred in form connection with the adjustment of the loss and content satisfactory Mortgagee's administrative expenses relating to Mortgagee such loss and the disbursement of the Proceeds, shall be, in its Mortgagee's sole discretionand absolute judgment, and insufficient to pay the entire cost of the Restoration, Mortgagor shall promptly and diligently, regardless deposit with Mortgagee any such deficiency prior to disbursement of whether there shall be sufficient insurance proceeds therefor, restore, repair and rebuild any additional portion of the Mortgaged Property to the equivalent of its condition immediately Proceeds. (f) No payment made prior to the casualty. During final completion of the Restoration shall exceed ninety percent (90%) of the value of the work performed from time to time, and at all times the undisbursed balance of said Proceeds remaining in the hands of Mortgagee shall be at least sufficient to pay for the cost of completion of the Restoration free and clear of liens. (g) Final payment shall be made upon delivery of an architect's certificate and a certification by one of Mortgagee's appraisers as to completion in accordance with the final plans and specifications and compliance with all zoning, building, subdivision and other governmental laws, ordinances, rules, and regulations, and the expiration of the period provided under applicable law for the filing of restoration mechanic's and repair, Mortgagor shall continue materialmen's' liens. Mortgagee may at its option require an endorsement to duly and promptly pay, perform, observe and comply with all Mortgagee's policy of title insurance insuring the Obligations. The election by Mortgagee to apply the insurance proceeds to the restoration, repair or replacement continued priority of the Mortgaged Property shall not affect the lien of this Mortgage or affect or reduce the Obligationsas to all sums advanced hereunder, such endorsement to be in form and substance satisfactory to Mortgagee and paid for by Mortgagor. (bh) If Upon completion of the Restoration in a good and workmanlike manner in accordance herewith, and provided that Mortgagee has received satisfactory evidence that the Restoration has been paid for in full and the Mortgaged Property is free and clear of all liens, any balance of the Proceeds at the time held by Mortgagee (after reimbursement to Mortgagee of all costs and expenses of Mortgagee, including administrative expenses, in connection with recovery of the same and disbursement of such Proceeds for the Restoration), if any, shall be applied as follows: (i) to the extent that such balance of the Proceeds is equal to or any less than the amount, if any, by which the value of the Mortgaged Property prior to such damage or destruction exceeds the value of the Mortgaged Property after such Restoration (for these purposes, the value of the Mortgaged Property shall be damaged determined by Mortgagee in its discretion), then the portion of the balance of the Proceeds equal to such excess amount shall be applied to the payment or destroyed by a casualty not covered by insurance under Section 5.5, or, if so covered, prepayment (without any prepayment premium) of the insurer fails or refuses to pay principal balance of the claim within thirty (30) days following the filing thereof, Mortgagor shall immediately give written notice thereof to MortgageeIndebtedness in such order as Mortgagee may determine, and any amounts so applied shall reduce the Indebtedness pro tanto; and (ii) to the extent that the balance of the Proceeds exceeds such excess amount, such portion of the balance of the Proceeds shall be paid to Mortgagor. (i) Mortgagee shall cause Proceeds held by it pursuant to this SECTION 5.6 to be maintained in one or more interest-bearing accounts in accordance with Mortgagee's customary practices for the payment of interest on account balances, including, without limitation, minimum balance requirements. (j) Nothing herein contained shall be deemed to excuse Mortgagor shall promptly and diligently, at Mortgagor's sole cost and expense, restore, repair and rebuild from repairing or maintaining the Mortgaged Property as provided in SECTION 5.4 hereof or restoring all damage or destruction to the equivalent Mortgaged Property, regardless of whether or not there are insurance proceeds available or whether any such proceeds are sufficient in amount, and the application or release by Mortgagee of any insurance proceeds shall not cure or waive any Default or notice of Default under this Mortgage or invalidate any other act done by Mortgagee to exercise its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligationsremedies hereunder. (c) If any work required to be performed under Subsections (a) or (b) above, or both, shall involve an estimated expenditure of more than $25,000.00, no such work shall be undertaken until plans and specifications therefor, prepared by an architect satisfactory to Mortgagee, have been submitted to and approved by Mortgagee.

Restoration Following Casualty. If any act or occurrence of any kind or nature (aincluding any casualty for which insurance was not obtained or obtainable) If all shall result in damage to or any part of the Mortgaged Property shall be damaged or destroyed by a casualty, Mortgagor shall immediately give written notice thereof to Mortgagee and the appropriate insurer, and Mortgagee is authorized and empowered (but not obligated or required) to make proof of loss and to settle, adjust or compromise any claims for loss, damage or destruction under any policies of insurance required under this Mortgage. All proceeds of insurance, as provided in Section 5.5, shall be paid to Mortgagee and shall be applied first to the payment of all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee in obtaining such proceeds, and second, at the option of Mortgagee, either to the payment of the Obligations whether or not due, in such order as Mortgagee may elect, or to the restoration, repair, or replacement of the Mortgaged Property, Grantor will give notice thereof to Beneficiary. If Mortgagee elects to apply In case of loss in which the insurance proceeds to cost of the restoration, repair or replacement (hereinafter referred to as the "Work") of the Mortgaged Property, Property estimated by Beneficiary shall not exceed $1,000,000.00 then such proceeds may be used for the prosecution of the Work in the manner hereinafter provided. If the cost of the Work estimated by Beneficiary shall exceed $1,000,000.00, Beneficiary, at its option, shall be disbursed entitled to Mortgagor receive and retain the proceeds of the insurance policies, applying the same upon the Indebtedness; however, if such repairs are essential to Grantor's ongoing business and the repayment of the Indebtedness, Beneficiary shall be reasonable in determining whether or not to make such funds available to pay the cost of the Work. Notwithstanding anything herein to the contrary if any loss shall occur at anytime when Grantor shall be in default in the performance of this covenant, Beneficiary shall be entitled to the benefit of all insurance policies held by or for any Grantor, to the extent as work progresses pursuant if same had been made payable to a construction Beneficiary; and disbursing agreement in form upon foreclosure hereunder, Beneficiary shall become the owner of any insurance proceeds paid or to be paid under said policies and content satisfactory to Mortgagee in its sole discretion, and Mortgagor shall promptly apply such proceeds to reduce the Indebtedness. In the event Beneficiary elects to make such insurance proceeds available to Grantor for such purpose, Grantor will promptly and diligently, at Grantor's sole cost and expense and regardless of whether there the insurance proceeds (if any) shall be sufficient insurance proceeds thereforfor the purpose, commence and continue diligently to completion to restore, repair repair, replace and rebuild the Mortgaged Property as nearly as possible to the equivalent of its value, condition and character immediately prior to such damage, loss or destruction. In the casualty. During the period of restoration and event insurance proceeds are not made available to Grantor to restore, repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligations. The election by Mortgagee to apply the insurance proceeds to the restoration, repair replace or replacement of rebuild the Mortgaged Property as aforesaid, Grantor shall not affect the lien of this Mortgage or affect or reduce the Obligations. (b) If all or be obligated to perform such work but shall clean up any of the Mortgaged Property shall be damaged or destroyed by areas in a casualty not covered by insurance under Section 5.5, or, if so covered, the insurer fails or refuses to pay the claim within thirty (30) days following the filing thereof, Mortgagor shall immediately give written notice thereof to Mortgagee, and Mortgagor shall promptly and diligently, commercially reasonable manner at MortgagorGrantor's sole cost and expense. (a) an architect or engineer, restoreapproved by Beneficiary, repair shall be retained by Grantor (at Grantor's expense) and rebuild charged with the supervision of the Work and Grantor shall have prepared, submitted to Beneficiary and secured Beneficiary's written approval of the plans and specifications for such Work which shall not be unreasonably withheld or delayed; (b) each request for payment by Grantor shall be made on ten (10) days prior written notice to Beneficiary and shall be accompanied by a certificate executed by the architect or engineer supervising the Work stating, among such other matters as may be reasonably required by Beneficiary that: (i) all of the Work completed has been done in compliance with the approved plans and specifications; (ii) the sum requested is justly required to reimburse Grantor for payments by Grantor to, or is justly due to, the contractor, subcontractors, materialmen, laborers, engineers, architects or other persons rendering services or materials for the Work (giving a brief description of such services and materials); (iii) when added to all sums previously paid out by Grantor, the sum requested does not exceed the value of the Work done to the date of such certificate: and (iv) the amount of insurance proceeds remaining in the hands of Beneficiary plus any funds deposited with Beneficiary or demonstrated to be available for such purpose in accordance with subparagraph (f) below, will be sufficient on completion of the Work to pay for the same in full (giving in such reasonable detail as the Beneficiary may require an estimate of the cost of such completion); (c) each request shall be accompanied by waivers of lien satisfactory in form and substance to Beneficiary covering that part of the Work completed prior to that part of the Work for which payment or reimbursement is being requested and by a search prepared by a title company or licensed abstracter or by other evidence satisfactory to Beneficiary that there has not been filed with respect to the Mortgaged Property any mechanic's lien or other lien, affidavit or instrument asserting any lien or any lien rights with respect to the equivalent Mortgaged Property; (d) there has not occurred any Event of its condition immediately Default (as herein defined) since the hazard, casualty or contingency giving rise to payment of the insurance proceeds occurred; (e) in the case of the request for the final disbursement, such request is accompanied by a copy of any Certificate of Occupancy or other certificate required by any Legal Requirement to render occupancy of the damaged portion of the Mortgaged Property lawful; and (f) if, in Beneficiary's reasonable judgment, the amount of such insurance proceeds will not be sufficient to complete the Work (which determination may be made prior to or during the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all performance of the Obligations. Work), Grantor shall deposit with Beneficiary, immediately upon a request therefor, or, demonstrate to Beneficiary's reasonable satisfaction that Grantor has funds available for such purpose in Grantor's possession (cin which event such funds will be the first funds expended to pay for the Work) If an amount of money which when added to such insurance proceeds will be sufficient, in Beneficiary's reasonable judgment, to complete the Work. If, upon completion of the Work, any work portion of the insurance proceeds has not been disbursed to Grantor (or one or more of the other aforesaid persons) incident thereto, Beneficiary shall disburse such balance to Grantor. Nothing herein shall be interpreted to prohibit Beneficiary from (y) withholding from each such disbursement ten percent (10%) (or such greater amount, if permitted or required by any Legal Requirement) of the amount otherwise herein provided to be performed under Subsections disbursed, and then continuing to withhold such sum until the time permitted for perfecting liens against the Mortgaged Property has expired, at which time the amount withheld shall be disbursed to Grantor (a) or to Grantor and/or any person or persons furnishing labor and/or material for the Work or directly to such persons), or (bz) above, applying at any time the whole or both, shall involve an estimated expenditure any part of more than $25,000.00, no such work shall be undertaken until plans and specifications therefor, prepared by an architect satisfactory insurance proceeds to Mortgagee, have been submitted to and approved by Mortgageethe curing of any Event of Default.

Restoration Following Casualty. (a) If After the happening of any casualty to the Mortgaged Property or any part thereof, Mortgagor shall give prompt written notice thereof to Mortgagee. In the event of any damage or destruction of all or any part of the Mortgaged Property Property, all proceeds of insurance shall be damaged or destroyed by a casualtypayable to Mortgagee, and Mortgagor hereby authorizes and directs any affected insurance company to make payment of such proceeds directly to Mortgagee. Mortgagor shall immediately give written notice thereof obtain Mortgagee's approval prior to Mortgagee and the appropriate insurerany settlement, and Mortgagee is authorized and empowered (but not obligated or required) to make proof of loss and to settle, adjust adjustment or compromise of any claims for loss, damage or destruction under any policy or policies of insurance required under this Mortgage. All proceeds of insurance, and Mortgagee shall have the right to participate with Mortgagor in negotiation of any such settlement, adjustment or compromise. Mortgagee shall also have the right to appear with Mortgagor in any action against an insurer based on a claim for loss, damage or destruction under any policy or policies of insurance. (b) All compensation, proceeds, damages, claims, insurance recoveries, rights of action and payments which Mortgagor may receive or to which Mortgagor may become entitled with respect to the Mortgaged Property or any part thereof as provided a result of any casualty, except as set forth below in Section 5.5this SECTION 5.6 (herein the "PROCEEDS"), shall be paid over to Mortgagee and shall be applied first to the payment toward reimbursement of all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by of Mortgagee in obtaining such proceedsconnection with recovery of the same, and secondthen, at except as set forth below in this SECTION 5.6, shall be applied in the option sole and absolute discretion of Mortgagee, either without regard to the adequacy of Mortgagee's security hereunder, to the payment or prepayment of the Obligations whether or not due, Indebtedness (without any prepayment premium) in such order as Mortgagee may electdetermine, and any amounts so applied shall reduce the Indebtedness pro tanto. Any application of the Proceeds or any portion thereof to the restorationIndebtedness shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice. (c) Notwithstanding anything to the contrary contained in this SECTION 5.6, repairin the event that the Proceeds payable with respect to any casualty shall be less than or equal to $150,000.00, then Mortgagor shall have the right to settle the insurance claim, and the right to retain the Proceeds, so long as Mortgagor shall restore the Mortgaged Property to its condition prior to such casualty, in a good and workmanlike manner, in compliance with any applicable legal requirements and the requirements of any lease, free and clear of liens, and shall remit to Mortgagee promptly upon completion of such restoration any remaining balance of such Proceeds not used in the restoration of the Mortgaged Property for application to the principal of the Indebtedness. (d) Subject to the other provisions of this SECTION 5.6, and if all of the following apply: (i) the Proceeds have been deposited with Mortgagee; (ii) in the case of insurance proceeds, the insurance carrier has not denied liability to a named insured; (iii) Mortgagee shall have been furnished with an estimate of the cost of restoration accompanied by an architect's certificate as to such costs and appropriate final plans and specifications for reconstruction of the Buildings, all of which shall be approved by Mortgagee; (iv) the Buildings so restored or replacement rebuilt shall be of at least equal value and substantially the same character as prior to the damage or destruction and appropriate for the purposes for which they were originally erected; (v) Mortgagor shall have furnished Mortgagee with evidence satisfactory to Mortgagee that all Buildings so restored and/or reconstructed and their use fully comply with all zoning and building laws, ordinances and regulations, and with all other applicable federal, state, and municipal laws and requirements; (vi) to the extent that the estimated cost of restoration exceeds the Proceeds available, Mortgagor shall have furnished a satisfactory bond of completion or deposited with Mortgagee such sums as may be necessary to pay such excess costs; (vii) Mortgagee shall have received notice within thirty (30) days of the fire or other hazard or of the condemnation proceedings specifying the date of such fire or other hazard or the date the notice of condemnation proceedings was received and the request to Mortgagee to make said Proceeds available to Mortgagor; (viii) the aggregate monthly net income under all Leases, together with the proceeds of any business interruption insurance with respect thereto, shall be sufficient to pay during the period of reconstruction the monthly installments required to be paid upon the Indebtedness as well as all impound payments which may be required under SECTION 5.3 for taxes and insurance, and following reconstruction shall be sufficient to pay the aforesaid sums as well as all other operating costs and charges of the Mortgaged Property. If ; (ix) all Leases described in (viii) above shall be in full force and effect as evidenced by estoppel certificates satisfactory to Mortgagee; (x) Mortgagor shall not then be in default under the Note, this Mortgage or any of the other Loan Instruments, and (xi) Mortgagee elects to apply the insurance proceeds determines in its sole and absolute discretion that such restoration or reconstruction can be completed at least three (3) months prior to the Maturity Date; then the Proceeds, less the actual costs, fees and expenses, if any, incurred in connection with adjustment of loss and Mortgagee's administrative expenses relating to such loss and the disbursement of the Proceeds shall be applied by Mortgagee to the payment of all the costs of the aforesaid restoration, repair repairs, replacement, rebuilding or replacement alterations, including the cost of temporary repairs or for the protection of property pending the completion of permanent restoration, repairs, replacements, rebuilding or alterations (all of which temporary repairs, protection of property and permanent restoration, repairs, replacement, rebuilding or alterations are hereinafter collectively referred to as the "RESTORATION"), and shall be paid out from time to time as such Restoration progresses upon the written request of Mortgagor if the work for which payment is requested has been done in a good and workmanlike manner and substantially in accordance with the plans and specifications therefor. Each request shall be accompanied by the following: (i) A certificate signed by Mortgagor, dated not more than thirty (30) days prior to such request, setting forth the following: (A) That the sum then requested either has been paid, or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished materials for the restoration therein specified or have paid for the same, the names and addresses of such persons, a brief description of such services and materials, the several amounts so paid or due to each of said persons in respect thereof (together with supporting statements and invoices for the same), that no part of such expenditures has been or is being made the basis of any previous or then pending request for the withdrawal of Proceeds or has been made out of any of the Proceeds received by Mortgagor, and that the sum then requested does not exceed the value of the services and materials described in the certificate. (B) That, except for the amount, if any, stated pursuant to the foregoing subclause (i)(A) in such certificate to be due for services or materials, there is no outstanding indebtedness known to the persons signing such certificate, after due inquiry, which is then due for labor, wages, materials, supplies or services in connection with such Restoration. (C) That the costs, as estimated by the persons signing such certificate, of the Restoration required to be done subsequent to the date of such certificate in order to complete and pay for the same, do not exceed the Proceeds, plus any amount or security approved by Mortgagee and deposited by Mortgagor to defray such costs and remaining in the hands of Mortgagee after payment of the sum requested in such certificate. (ii) A title insurance report or other evidence satisfactory to Mortgagee to the effect that there has not been filed with respect to the Mortgaged Property, or any part thereof, any vendor's, contractor's, mechanics', laborer's, materialmen's' or other lien which has not been discharged of record or bonded, except such proceeds as will be disbursed by payment of the amount then requested. (iii) A certificate signed by the architect and/or engineer in charge of the Restoration, who shall be disbursed selected by Mortgagor and approved in writing by Mortgagee, certifying to the facts set forth in subclause (i) above, and that the Restoration is proceeding in accordance with the plans and specifications approved by Mortgagee and in accordance with all zoning, subdivision and other governmental laws, ordinances, rules and regulations. Upon compliance with the foregoing provisions, Mortgagee shall, out of Proceeds (and the amount of security approved by Mortgagee, if any, deposited by Mortgagor to defray the costs of the Restoration), pay or cause to be paid to Mortgagor as work progresses or the persons named (pursuant to a construction subclause (i)(A) above) in such certificate the respective amounts stated therein to have been paid by Mortgagor or to be due to them, as the case may be. (e) If the Proceeds at the time held by Mortgagee, less the actual costs, fees and disbursing agreement expenses, if any, incurred in form connection with the adjustment of the loss and content satisfactory Mortgagee's administrative expenses relating to Mortgagee such loss and the disbursement of the Proceeds, shall be, in its Mortgagee's sole discretionand absolute judgment, and insufficient to pay the entire cost of the Restoration, Mortgagor shall promptly and diligently, regardless deposit with Mortgagee any such deficiency prior to disbursement of whether there shall be sufficient insurance proceeds therefor, restore, repair and rebuild any additional portion of the Mortgaged Property to the equivalent of its condition immediately Proceeds. (f) No payment made prior to the casualty. During final completion of the Restoration shall exceed ninety percent (90%) of the value of the work performed from time to time, and at all times the undisbursed balance of said Proceeds remaining in the hands of Mortgagee shall be at least sufficient to pay for the cost of completion of the Restoration free and clear of liens. (g) Final payment shall be made upon delivery of an architect's certificate and certification by one of Mortgagee's appraisers as to completion in accordance with the final plans and specifications and compliance with all zoning, building, subdivision and other governmental laws, ordinances, rules, and regulations, and the expiration of the period provided under applicable law for the filing of restoration mechanic's and repair, Mortgagor shall continue materialmen's' liens. Mortgagee may at its option require an endorsement to duly and promptly pay, perform, observe and comply with all Mortgagee's policy of title insurance insuring the Obligations. The election by Mortgagee to apply the insurance proceeds to the restoration, repair or replacement continued priority of the Mortgaged Property shall not affect the lien of this Mortgage or affect or reduce the Obligationsas to all sums advanced hereunder, such endorsement to be in form and substance satisfactory to Mortgagee and paid for by Mortgagor. (bh) If Upon completion of the Restoration in a good and workmanlike manner in accordance herewith, and provided that Mortgagee has received satisfactory evidence that the Restoration has been paid for in full and the Mortgaged Property is free and clear of all liens, any balance of the Proceeds at the time held by Mortgagee (after reimbursement to Mortgagee of all costs and expenses of Mortgagee, including administrative expenses, in connection with recovery of the same and disbursement of such Proceeds for the Restoration), if any, shall be applied as follows: (i) to the extent that such balance of the Proceeds is equal to or any less than the amount, if any, by which the value of the Mortgaged Property prior to such damage or destruction exceeds the value of the Mortgaged Property after such Restoration (for these purposes, the value of the Mortgaged Property shall be damaged determined by Mortgagee in its discretion), then the portion of the balance of the Proceeds equal to such excess amount shall be applied to the payment or destroyed by a casualty not covered by insurance under Section 5.5, or, if so covered, prepayment (without any prepayment premium) of the insurer fails or refuses to pay principal balance of the claim within thirty (30) days following the filing thereof, Mortgagor shall immediately give written notice thereof to MortgageeIndebtedness in such order as Mortgagee may determine, and any amounts so applied shall reduce the Indebtedness pro tanto; and (ii) to the extent that the balance of the Proceeds exceeds such excess amount, such portion of the balance of the Proceeds shall be paid to Mortgagor. (i) Mortgagee shall cause Proceeds held by it pursuant to this SECTION 5.6 to be maintained in one or more interest-bearing accounts in accordance with Mortgagee's customary practices for the payment of interest on account balances, including, without limitation, minimum balance requirements. (j) Nothing herein contained shall be deemed to excuse Mortgagor shall promptly and diligently, at Mortgagor's sole cost and expense, restore, repair and rebuild from repairing or maintaining the Mortgaged Property as provided in SECTION 5.4 hereof or restoring all damage or destruction to the equivalent Mortgaged Property, regardless of whether or not there are insurance proceeds available or whether any such proceeds are sufficient in amount, and the application or release by Mortgagee of any insurance proceeds shall not cure or waive any Default or notice of Default under this Mortgage or invalidate any other act done by Mortgagee to exercise its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligationsremedies hereunder. (c) If any work required to be performed under Subsections (a) or (b) above, or both, shall involve an estimated expenditure of more than $25,000.00, no such work shall be undertaken until plans and specifications therefor, prepared by an architect satisfactory to Mortgagee, have been submitted to and approved by Mortgagee.

Restoration Following Casualty. (aA) If all or any part of the Mortgaged Property shall be damaged or destroyed by a casualtycasualty covered by insurance, Mortgagor shall immediately give written notice thereof thereto to Mortgagee Mortgagee, and the appropriate insurer, and Mortgagee is authorized and empowered (but not obligated or required) to make proof of loss and to settle, adjust or compromise any Mortgagee's claims for loss, damage or destruction under any policies of insurance required under this Mortgage. All proceeds of insurance, as provided in Section 5.5, insurance shall be paid to Mortgagee and shall be applied first to the payment of all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee in obtaining such proceeds, and second, at the option of Mortgagee, either to the payment of the Obligations whether or not due, in such order as Mortgagee may elect, or to the restoration, repair, repair or replacement of the Mortgaged Property. If Mortgagee elects to apply the insurance proceeds to the restoration, repair or ore replacement of the Mortgaged Property, such proceeds shall be disbursed to Mortgagor as work progresses pursuant to a construction and disbursing agreement in form and content satisfactory to Mortgagee in its sole discretion, and Mortgagor shall promptly and diligently, regardless of whether there shall be sufficient insurance proceeds therefortherefore, restore, repair and rebuild the Mortgaged Property to the equivalent of its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligations. The election by Mortgagee to apply the insurance proceeds to the restoration, repair or replacement of the Mortgaged Property shall not affect the lien of this Mortgage or affect or reduce the Obligations. (bB) If all or any of the Mortgaged Property shall be damaged or destroyed by a casualty not covered by insurance under Section 5.5, or, if so covered, covered the insurer fails or refuses to pay the claim within thirty (30) days following the filing thereof, Mortgagor shall immediately give written notice thereof to Mortgagee, and Mortgagor shall promptly and diligently, at Mortgagor's sole cost and expense, restore, repair and rebuild the Mortgaged Property to the equivalent of its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligations. (cC) If any work required to be performed under Subsections (aA) or (bB) above, or both, shall involve an estimated expenditure of more than $25,000.0010,000.00, no such work shall be undertaken until plans and specifications therefor, prepared by an architect satisfactory to Mortgagee, have been submitted to and approved by Mortgagee.. Florida Mortgage - Page 9 Initials: ______ ______

Restoration Following Casualty. (a) If all any acts or occurrences of any part of the Mortgaged Property kind or nature, ordinary or extraordinary, foreseen or unforeseen, shall be damaged result in damage to or destroyed by a casualty, Mortgagor shall immediately give written notice thereof to Mortgagee and the appropriate insurer, and Mortgagee is authorized and empowered (but not obligated or required) to make proof of loss and to settle, adjust or compromise any claims for loss, damage or destruction under any policies of insurance required under this Mortgage. All proceeds of insurance, as provided in Section 5.5, shall be paid to Mortgagee and shall be applied first to the payment of all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee in obtaining such proceeds, and second, at the option of Mortgagee, either to the payment of the Obligations whether or not due, in such order as Mortgagee may elect, or to the restoration, repair, or replacement of the Mortgaged Property, Grantor will give prompt notice thereof to Beneficiary. If Mortgagee elects to apply the If (a) there are sufficient insurance proceeds or sufficient other amounts available to Grantor to fully pay for the restoration, repair or replacement (hereinafter called "Work") of the Mortgaged Property, such proceeds (b) no Default or Event of Default shall have occurred and be disbursed continuing, (c) neither Grantor nor Lessor has elected to Mortgagor as work progresses terminate the Encumbered Lease, if any, pursuant to the terms thereof and confirmation of the same has been delivered to Beneficiary, (d) the Grantor presents sufficient evidence to the Beneficiary that the damaged property will be restored prior to the earliest to occur of the Revolving Credit Maturity Date, the Term Loan A Maturity Date, the Term Loan B Maturity Date or the Term Loan C Maturity Date and (e) the Beneficiary will not incur any liability to any other person as a construction and disbursing agreement in form and content satisfactory result of such use or release of insurance proceeds, then Grantor may so certify to Mortgagee in its sole discretionBeneficiary, and Mortgagor shall promptly if Grantor delivers such certificate, will certify that it will, and diligentlyshall, regardless within 90 days following reaching an agreement with the insurer under the casualty insurance policy relating thereto with regard to the disbursement of whether there shall be sufficient insurance proceeds thereforcommence and thereafter continue diligently to completion, to restore, repair repair, replace and rebuild the such Mortgaged Property as nearly as possible to the equivalent of its value, condition and character immediately prior to such damage, loss or destruction with such alterations, modifications and/or betterments reasonably deemed necessary or desirable by Grantor in its business judgment. If the conditions set forth in such certificate of Grantor are not satisfied with respect to a casualty, or if Grantor fails to deliver such a certificate to Beneficiary by the date that is the later of 90 days after so reaching an agreement with the insurer or 180 days following the casualty. During , or if Grantor shall thereafter fail to diligently pursue the period of restoration and restoration, repair, Mortgagor shall continue to duly and promptly payreplacement or rebuilding of such Mortgaged Property as provided herein, perform, observe and comply with all of the Obligations. The election by Mortgagee to apply the insurance proceeds related thereto shall be promptly paid to Beneficiary and applied to the restoration, repair or replacement outstanding balance of the Mortgaged Property shall not affect the lien of this Mortgage or affect or reduce the Obligations. (bObligations in accordance with Section 2.06(d) If all or any of the Mortgaged Property shall be damaged or destroyed by a casualty not covered by insurance under Section 5.5, or, if so covered, the insurer fails or refuses to pay the claim within thirty (30) days following the filing thereof, Mortgagor shall immediately give written notice thereof to Mortgagee, and Mortgagor shall promptly and diligently, at Mortgagor's sole cost and expense, restore, repair and rebuild the Mortgaged Property to the equivalent of its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the ObligationsCredit Agreement. (c) If any work required to be performed under Subsections (a) or (b) above, or both, shall involve an estimated expenditure of more than $25,000.00, no such work shall be undertaken until plans and specifications therefor, prepared by an architect satisfactory to Mortgagee, have been submitted to and approved by Mortgagee.

Restoration Following Casualty. (a) If all or any part of the Mortgaged Property shall be damaged or destroyed by a casualty, Mortgagor shall immediately give written notice thereof to Mortgagee and the appropriate insurer, and Mortgagee is authorized and empowered (but not obligated or required) to make proof of loss and to settle, adjust or compromise any claims for loss, damage or destruction under any policies of insurance required under this Mortgage. All Subject to the rights of the holder of the Senior Mortgage, all proceeds of insurance, as provided in Section 5.5, insurance shall be paid to Mortgagee and shall be applied first to the payment of all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by Mortgagee in obtaining such proceeds, and second, at the option of Mortgagee, either to the payment of the Obligations whether or not due, in such order as Mortgagee may elect, or to the restoration, repair, or replacement of the Mortgaged Property. If Mortgagee elects to apply the insurance proceeds to the restoration, repair or replacement of the Mortgaged Property, such proceeds shall be disbursed to Mortgagor as work progresses pursuant to a construction and disbursing agreement in form and content satisfactory to Mortgagee in its sole discretion, and Mortgagor shall promptly and diligently, regardless of whether there shall be sufficient insurance proceeds therefor, restore, repair and rebuild the Mortgaged Property to the equivalent of its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligations. The election by Mortgagee to apply the insurance proceeds to the restoration, repair or replacement of the Mortgaged Property shall not affect the lien of this Mortgage or affect or reduce the Obligations. (b) If all or any of the Mortgaged Property shall be damaged or destroyed by a casualty not covered by insurance under Section 5.5insurance, or, if so covered, the insurer fails or refuses to pay the claim within thirty (30) days following the filing thereof, Mortgagor shall immediately give written notice thereof to Mortgagee, and Mortgagor shall promptly and diligently, at Mortgagor's sole cost and expense, restore, repair and rebuild the Mortgaged Property to the equivalent of its condition immediately prior to the casualty. During the period of restoration and repair, Mortgagor shall continue to duly and promptly pay, perform, observe and comply with all of the Obligations. (c) If any work required to be performed under Subsections (a) or (b) above, or both, shall involve an estimated expenditure of more than $25,000.00, no such work shall be undertaken until plans and specifications therefor, prepared by an architect satisfactory to Mortgagee, have been submitted to and approved by Mortgagee.