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Home My WebLink About2015-216A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK LANDLORD'S WAIVER THIS LANDLORD'S WAIVER (the "Waiver") is made and given as of October 15, 2015, by Indian River County Solid Waste Disposal District, a dependant special district of Indian River County (the "Landlord"), in favor of BANKUNITED, N.A. (the "Lender"). WHEREAS, Landlord has entered into a Commercial Building Lease dated December 31, 2001 and a current Agreement for Lease Extension dated November 18, 2014 (the "Lease") with MWI Corporation (the "Company"), in relation to property located at 7775 9'h Street SW, Vero Beach, Honda (the "Premises" or the "Property"); WHEREAS, Lender has previously entered into or is about to enter into certain financing transactions with the Company (the "Loan Documents"), and to secure such financing, the Company has granted to Lender a security interest in and lien upon the tangible and intangible personal property of the Company, including, without limitation, all of the Company's cash, cash equivalents, goods, inventory, machinery, equipment, furniture and trade fixtures, together with all additions, substitutions, replacements and improvements to, and proceeds of, the foregoing (collectively, the "Collateral"), and WHEREAS, Lender has requested that Landlord execute this Waiver. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord hereby covenants and agrees with Lender as follows: 1. Priority of Lender's Security Interest. Provided that the Lender's security interest in the Collateral, as created pursuant to the Loan Documents, is validly created and perfected. Landlord recognizes and acknowledges that such security interest is superior to any lien, right, claim or title of any nature which Landlord now has or hereafter may have or assert in or to the Collateral pursuant to the Lease. Subject to the other provisions in this Waiver, Landlord shall not distrain upon, or claim or assert any lien, right or title to any or all of the Collateral, which now or hereafter may be installed on said Premises, with regard to the payment of rent or any other obligation arising as a result of, or due to, a default by the Company under the Lease unless and until the lien as to the Collateral under the Loan Documents has been released.. Notwithstanding the foregoing, Landlord does not waive, relinquish or subordinate any rights or remedies that Landlord may now have, or shall ever enjoy, as a judgment creditor to the extent that any such rights or remedies arise or are perfected from and after the date hereof 2. Removal of Collateral. During the term of the Lease, Lender may remove the Collateral from the Premises pursuant to the terms of this Waiver. Prior to any access of the Property, Lender shall first provide Landlord with reasonable prior written notice of Lender's intention to exercise its remedies with respect to the Collateral. No auction or sale of the Collateral shall be conducted by Lender from the Premises or the Property without Landlord's prior written consent, which consent Landlord may xv►thhold in Landlord's sole and absolute discretion. Lender shall be solely responsible for the repair and replacement, at Lender's sole cost and expense and to Landlord's reasonable satisfaction, of all or any portion of the Property or the Premises that is damaged as a result of the presence or acts of Lender's or Lender's agents or invitees at the Property. In addition, Lender shall bear the costs of all personal injuries caused by such presence or acts of Lender or Lender's agents or invitees at the Property Lender shall act reasonably, in good faith and with due diligence, to coordinate with Landlord the removal of the Company's Collateral from the Premises during normal and customary business hours Notwithstanding the foregoing, the rights under this Section shall in no event extend beyond the stated expiry date of the Lease or the earlier termination of the Lease, upon which expiration or earlier termination, Landlord may FTLDOCS 6421430 1 ATRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK take possession of the Premises, remove the Company's possessions and Collateral from the Premises. and either dispose of, sell or transfer such possessions and Collateral. 3. Accelerated Termination ofLease. Tn the event the Lease is terminated on an accelerated basis prior to the expiry date set forth in the Lease due to a default of the Company under the Lease. Landlord shall give Lender written notice thereof (the "Termination Notice") Landlord agrees that, at Lender's option and upon written notice (the ^'Lcndcr's\�obce``)delivered to Landlord within thirty (30) Lenderduys of Landlord's delivery to of the Termination Notice, the Collateral may remain upon the Premises for a period not to exceed sixty (60) 'days following Landlord's delivery to Lender of the Termination Notice (the "Disposition Period") ,provided that Lender (a) complies with all of the obligations imposed upon Lender in Section 2 above with respect to the removal of the Collateral from the Premises, and (b) with respect to each day during such Disposition Period during which the Collaterat so remains on the Premises, pays all rent (including rent adjustments, if any), calculated on a per diem basis, that would otherwise be due and payable under the terms of the Lease had the Lease remained in full force and effect. Such rent payment shall be due from Lender (such payment to be made assuming full utilization of the Disposition Period) simultaneous]y with Lender's delivery of the Lender's Notice. and upon the expiration ofthe Disposition Period and the Lender's removal of the Collateral, Landlord shall refund to Lender any unapplied portion of such rent payment. 4. Landlord's Rights After Delivery of Termination Notice. If Landlord delivers a Termination Notice, (a) but Lender fails to both timely deliver the Lender's Notice and pay the rent attributable to the Disposition Period; or (b) Lender timely delivers Lender's Notice aiid pays the rent attributable to the Disposition Period, but Lender then fails to remove the Collateral pnor to the expiration of the Disposition Period, then, in either event, Landlord shall thereafter be cnnUcd, on an immediate basis, to exercise any and all rights available to Landiord against the Company under the Lease, whether at law or in equity (including, but not limited to, the right to take possession of the Premises, the right to remove the Company's possessions and CuJ)uber�| from the Premises, dispose of, sell or transfer such Collateral, and the right to obtain and execute upofl ajudgment against the Company) 5. Amendment or Extension o[the Company's Obligations. Lender may, without affecting the validity ofthis Waiver, extend, amend or modify, in any way, the terms of payment or performance of any of the Company's obligations, without the consent of Landlord and without giving notice thereof to 6. No Recordation. It is agreed that none of Lender, the Company, or any successor or assignee ofeither, may record this Waiver in the publicrncnoduofanyoountyorstatc 10 the event ofany such recordation, this Waiver shall automatically be rendered null and void and of no force and effect 7. Successors and Assigns. This Waiver shall be binding upon, and inure to the benefit of, the successors and assigns of the parties hereto. 8. Litigation. In the event of litigation between the Landlord and Lender with respect to the provisions ofthis Waiver, the Premises or the Collateral, the losing party shall pay all costs and expenses incurred by the prevailing party in connection with such litigation, including, but not limited to. reasonable attorneys' fees of counsel selected by the prevailing party. 9. Notices. Any notice required to be given by either party pursuant to this Waiver, shall be in writing and shall be deemed to have been properly given, rendered or made only if peemm}|} delivered, or if sent by certified U.S. Mail, return receipt requested or overnight delivery service, addressed to the other party at the addresses set forth below (or to such other address as Landlord or Lender may designate to each other from time to time by written notice), and shall be deemed to have rTLo0CS6wz|m0| 2 A TRUE COPY CERTIFICATION ON LAST PAGE J.R. SMITH, CLERK been given, rendered or made on the day so delivered or refused, or three (3) business days after having been sent by certified U.S. Mail, return receipt requested If to Landlord: Indian River County Solid Waste Disposal District 1801 27th Street Vero Beach, Forida 32960 Attn: William K DeBraal Deputy County Attorney If to Lender: BankUnited, N.A. 7765 N.W. 148 Street Miami Lakes, Florida 33016 Attn: Loan Administration [REMAINDER OF PAGE INTENTIONALLY BLANK) FTLDOCS 6421430 1 3 IN WITNESS WHEREOF, this Waiver has been fully executed and delivered as of the day and year specified at the beginning hereof. ATTEST: Jeffrey R. Smith, Clerk of Court and Comptroller By LANDLORD: INDIAN RIVER COUNTY SOLID WASTE DISPOSAL DISTRICT By: Name. Title• APPROVED AS TO FORM AND LEGAL SUFFICI $yly WIWMI K. DERMAL DEN3TY COUNTY ATTO KWEY .ODM'...*..�OG��T• • �=a�: :•; .7 n;. ,;THE ORIGINAL ON FILE IN THIS :5.: -x :o OFFICE �> E FREY R 4IT}I K CLER STATE OF FLORIDA INDIAN RIVER COUNTY THIS IS TO CERTIFY THAT THIS IS :A TRUE AND CORRECT COPY OF DATE FTLDOCS 6421430 1 4 DC