HomeMy Public PortalAbout011-2018 - City & EDC - For EDC intends to buy out lease in Midwest Industrial ParkNOTICE OF INTENT TO EXERCISE OPTION
WHEREAS, The Economic Development Corporation of Wayne County, Indiana, an
Indiana nonprofit corporation ("EDC") entered into a lease agreement with the City of Richmond,
Indiana, a political subdivision of the State of Indiana ("City") for the real estate located in the
Midwest Industrial Park, which was fully executed on December 18, 1988, amended by an
addendum dated July 5, 2001 and extended to and including December 31, 2018, by an extension
agreement dated February 24, 2011; and
WHEREAS, said lease as amended and extended is still in full force and effect; and
NOW, THEREFORE, the EDC does hereby give notice to the City of its intent to exercise
its right to purchase Lot 3 in Section 1 of Phase II in the Midwest Industrial Park as generally
depicted on Exhibit A attached hereto and made a part hereof for the sum of Two Hundred Sixty-
seven Thousand Nine Hundred Seventy-four and 501100 Dollars ($267,974.50) for the specific
and limited purpose of reconveying said property to Heartland Pet Food Manufacturing Indiana,
LLC, a limited liability company duly organized and existing under the laws of the State of
Delaware, with Certificate of Authority to conduct business in the State of Indiana, or its assignee
designated prior to closing, pursuant to the terms of the Real Estate Purchase Agreement attached
hereto as Exhibit B.
ECONOMIC DEVELOPMENT CORPORATION
OF WAYNE COUNTY, INDIANA
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Dated: January2018 By
yjh�L
Valerie Shaffer, Presid
STATE OF INDIANA, Wayne County, SS:
Before me, the undersigned, a Notary Public in and for said County and State, personally
appeared the within named VALERIE SHAFFER, as President, a duly authorized officer of
ECONOMIC DEVELOPMENT CORPORATION OF WAYNE COUNTY, INDIANA, who
acknowledged the execution of the foregoing NOTICE OF INTENT TO EXERCISE OPTION to
be her voluntary act and deed.
WITNESS, my hand and notarial seal this day of January, 2018.
My commission expires:
Notary Public of Wayne County, Indiana
This instrument prepared by George M. Sowers, Attorney at Law.
I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social
Security number in this document, unless required by law. George M. Sowers
APPROVAL OF EXERCISE OF OPTION
Dated: January _&_, 2018.
Dated: January I � , 2018.
CITY OF RICHMOND, INDIANA through its
BOARD OF PUBLIC WORKS AND SAFETY
By
V4e#ic Robinson, President
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EFXHIBIT R
AGREEMENT TO
SELL AND PURCHASE REAL ESTATE
This Agreement to Sell and Purchase Real Estate ("Agreement") is made and entered into on this '941day
of� 2018 (the "Effective Date"), by and between the ECONOMIC DEVELOPMENT
CORPORATION OF WAYNE COUNTY, INDIANA, an Indiana nonprofit corporation, hereinafter
referred to as "Seller", and HEARTLAND PET FOOD MANUFACTURING INDIANA, LLC, a limited
liability company duly organized and existing under the laws of the State of Delaware, with Certificate of
Authority to conduct business in the State of Indiana, hereinafter referred to as "Purchaser".
1. Sale and Purchase. Seller agrees to sell and Purchaser shall purchase, subject to
the terms and conditions herein, the following described real estate in Wayne County, in the State
of Indiana, to -wit:
"Lot 3 in Section 1 of Phase II of the replat of the Midwest Industrial
Park as shown. in Instrument No. 2016004156 recorded in the Office of
the Recorder of Wayne County, Indiana on May 27, 2016."
together with all easements, rights and privileges appurtenant thereto, (collectively, the
"Property").
2. Consideration. For and in consideration of the sum of $267, 97450 cash, Seller
agrees to convey the Property to Purchaser subject to Seller's right to remove a soil stock pile
located along the eastern boundary of the Property ("Seller's Reserved Right"). The Seller's
Reserved Right shall terminate two (2) years after date of closing, provided however, if Purchaser
can document the need to sooner terminate Seller's Reserved Right to Seller's satisfaction, Seller
shall terminate its Reserved Right within ninety (90) day of receipt of the request, or as the parties
may mutually agree.
The terms of this section shall survive the closing of this transaction for a period of
three (3) years.
3. Due Dilieence Period. Purchaser's obligation under this Agreement is expressly
contingent upon Purchaser's satisfaction or waiver, each in its sole and absolute discretion, of all
matters pertaining to the condition of the Property including, without limitation, matters pertaining
to soils, environmental, and any other physical conditions and/or limitations pertaining to the
Property which affect or impact the development of and construction on the Property for
Purchaser's intended use.
The foregoing conditions shall be satisfied or waived by Purchaser, in its sole and
absolute discretion, within ninety (90) days after the effective date of this Agreement (the "Due
Diligence Period").
4. Title Commitment. Within ten (10) days following the Effective Date, Seller, at its
sole cost and expense, shall order a standard form ALTA Owner's Commitment for title insurance
(the "Commitment") covering the Property and issued by Abstracts of Richmond, Inc. (the "Title
Company"). Seller shall provide a copy of the Commitment together with copies of all instruments
referred to as exceptions to the Purchaser. Within ten (10) days following Purchaser's receipt of
the Commitment, Purchaser shall give notice in writing to Seller of any defects in or objections to
the Commitment ("Purchaser's Title Review"). Seller shall, within twenty (20) days following
receipt of such notice, or such time as may be extended by Purchaser, exert its reasonable and
diligent efforts to clear the title of the defects and objections so specified. Failure to exert such
effort to clear the title of defects and objections within twenty (20) days, or such time as may be
extended by Purchaser, shall constitute a default on the part of the Seller and be subject to the
provisions of paragraph 9 contained herein. Except for (i) matters to which notice has been given
by Purchaser, and (ii) lien and lease exceptions as defined below, such exceptions shall be included
in the terms "Permitted Exceptions" as used herein.
5. Title Policy and Deed. At the Closing, Seller shall convey the Property to
Purchaser, by Special Warranty Deed (the "Deed") in a form acceptable to Purchaser. It shall be a
condition to Purchaser's obligation to consummate the transaction contemplated hereby that, upon
the recording of the Deed, the Title Company shall issue to Purchaser an ALTA Owner's Policy
of Title Insurance, with an effective date and time as of the date and time of the recording of the
Deed (the "Title Policy") in the amount of the Purchase Price, insuring title to the Property in
Purchaser, free and clear of any and all encumbrances except for the Protective Covenants and
Restrictions of the Midwest Industrial Park, Seller's Reserved Right and the Permitted Exceptions.
Seller agrees to deliver to the Title Company, on or prior to Closing Date, any affidavit reasonably
required by the Title Company to cause the Title Company to delete the so-called "standard
exceptions" from the Title Policy (the "Title Company Affidavit"). Seller shall deliver to Purchaser
and Title Company copies of the deed and all other documents required for closing at least five (5)
days prior to Closing. Delay in Seller's delivery of such instruments may at Purchaser's option
result in a delay of the Closing equivalent to the delay in the delivery of the instruments.
6. Risk of Loss: Condemnation. Until the Closing, the risk of loss or damage to the
Property or its taking or damage by condemnation shall be on Seller. If any loss or damage occurs
prior to the Closing, then Purchaser shall have the option of (i) canceling and rescinding this
Agreement or (ii) accepting the Property, in which event all proceeds of insurance shall be assigned
to Purchaser and there shall be a credit against the Purchase Price due hereunder equal to the
amount of any insurance deductible and the cost of any uninsured damage. If, prior to the Closing,
all or any part of the Property shall be condemned by governmental or other lawful authority,
Purchaser shall have the option of (a) completing the purchase, in which event all condemnation
proceeds or claims thereof shall be assigned to Purchaser, or (b) canceling this Agreement, in
which event this Agreement shall be terminated with neither party having any rights against the
other.
7. Real Property Taxes. Real property taxes, if any, shall be prorated and adjusted on
the basis of a calendar year, Seller to have the last day, to and including the date of Closing. Accrued
taxes for all prior years shall be paid by Seller. If the Closing shall occur before the tax rate is fixed
for the then -current year, the apportionment of taxes shall be upon the basis of the tax rate for the
preceding year applied to the latest assessed valuation. Assessments, either general or special, for
improvements completed prior to the date of Closing, whether matured or unmatured, shall be paid
in full by Seller. All other assessments shall be paid by Purchaser.
8. Brokerage Fees. Purchaser and Seller represent to each other that neither of them
has employed a real estate broker with respect to this transaction.
9. Default:
a. Default by Purchaser. If Purchaser shall default in the performance of
any of the terms and conditions of this Agreement, or if the Closing shall
not occur through the fault of Purchaser, Seller may, as its sole remedy,
cancel this Agreement.
b. Default by Seller. If Seller fails or refuses to fully comply with the
terms of this Agreement, for any cause other than Purchaser's default
hereunder, Purchaser may, at its option, (a) rescind this Agreement and
assert a claim for actual damages directly arising from such breach,
including all costs and expenses incurred by the Purchaser in connection
with this Agreement, including all due diligence, survey and title insurance
expenses, all costs and expenses in connection with Purchaser's financing
and all of Purchaser's reasonable attorneys' fees and expenses, or (b)
proceed with this Agreement and take the Property as it is, as its sole
remedy.
C. Notice of Default. In the event either party is in default of any
provision hereof, the non -defaulting party, as a condition precedent to its
remedies, must give the defaulting party written notice of the default. The
defaulting party shall have ten (10) business days from the receipt of such
notice to cure the default, or, if the default cannot reasonably be cured
within ten (10) business days, the defaulting party shall have ten (10)
business days from receipt of such notice to commence diligent efforts to
cure the default. If the default is timely cured, this Agreement shall
continue in full force and effect. If the default is not timely cured, the non -
defaulting party may pursue its applicable remedies set forth in the
Agreement.
10. Right of Entry. At any time prior to the Closing, and at Purchaser's sole cost and
expense, Purchaser or its authorized agents shall have the right to enter upon the Property for any
lawful purpose, including, without limitation, making such surveys and site analysis, test borings
and engineering studies and to erecting such signs as Purchaser may deem necessary. The parties
acknowledge that the Subject Property is currently leased to Tom Hutchings for agricultural
purposes and that Seller has reserved the right to withdraw tillable acreage from the terms of the
lease upon sixty (60) days written notice to the farm tenant. Seller agrees to be responsible for and
compensate the farm tenant for any loss of crops due to the withdrawal of tillable acreage from the
farm tenant. Except for any preexisting conditions on the Property, Purchaser shall indemnify and
hold Seller harmless from and against any and all claims and liens arising out of any act or failure to
act of Purchaser or its authorized agents as a result of their respective activities on the Property.
Purchaser's obligation to close is expressly conditioned upon inspection results, which, in the sole
judgment of Purchaser, evidence that the Property is suitable for Purchaser's intended use. When
such reports disclose conditions unsatisfactory to Purchaser, which Seller is unable or unwilling to
correct at Seller's expense, Purchaser may cancel this Agreement by written notice to Seller.
11. Preconditions to Closing.
a. Seller's board of directors must authorize the transaction by proper
resolution.
b. Seller holds an option to purchase the Property from the City of Richmond,
County of Wayne, State of Indiana. Seller enters into this agreement
subject to its ability to exercise its option for the purchase of the Property
from the City of Richmond, County of Wayne, State of Indiana acting by
and through its Board of Public Works and Safety. Seller agrees to give
notice of its intent to exercise its option to purchase the Property from the
City of Richmond, County of Wayne, State of Indiana within 20 days from
full execution of this Agreement.
C. Purchaser agrees to participate in replatting Phase H of the Midwest
Industrial Park for the sole purpose of creating drainage and utility
easements. The parties further agree that the replat shall not affect Lot 2
and that its effect upon Lot 1 shall be limited to (1) a drainage and utility
easement approximately 75 feet in width and 1,400 feet in length along the
eastern boundary of Lot 1 in Section]. of Phase H of the Midwest Industrial
Park and (2) a water main easement approximately 60 feet by 20 feet
located on the eastern boundary of Lot 1 near the terminus of Industries
Road, approximately as shown on the preliminary sketch attached to this
Agreement as Exhibit A. The replat shall also include drainage and utility
easements along the southern and eastern boundaries of Lot 2.
Purchaser has already reconfigured a portion of the drainage ditch located
upon Lot 1 at its expense and does not seek reimbursement from Seller.
All additional expense for the reconfiguration of the drainage ditches shall
be at the expense of Seller, or its assignee, provided however, Purchaser
agrees to pay or reimburse Seller the sum of $1,000.00 for the land
survey expense relating to the reconfiguration of the easements and their
memorialization in a replat of Phase II of the Midwest Industrial Park.
The parties acknowledge that one purpose of the replat is to permit the
reconfiguration of the existing drainage easements in Phase II and Seller
represents and warrants to Purchaser that Seller will ensure continuous
drainage for Lots 1 and 3 pending the reconfiguration of the existing
drainage ditches. The provisions of this paragraph shall survive the closing
of this transaction for 10 years.
d. Purchaser must provide Seller with an original certificate from its state of
incorporation demonstrating that it is in good standing and a Certificate of
Authority issued by the Office of the Secretary of State of Indiana.
12. Warranties and Representations of Seller. Seller hereby represents and warrants
.to Purchaser as follows as of the Effective Date:
a. Organization; Authority. Seller is a duly formed and validly existing
nonprofit corporation under the laws of the State of Indiana. Seller has the
legal power, right and authority to enter into this Agreement and to execute
and deliver the instruments and documents referenced herein, and to
consummate the transaction contemplated hereby.
b. Due Authorization; Binding AUeement. The execution, delivery and
performance of this Agreement by Seller has been duly and validly
authorized by all necessary action of Seller. This Agreement has been duly
executed and delivered by Seller and constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with the terms
hereof, subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability relating to or affecting creditors' rights.
C. Title. Seller will own at Closing good and marketable title to the Property,
free and clear of all liens and encumbrances, excepting the Permitted
Exceptions.
d. Non -Foreign Status. Seller is not a "foreign person" within the meaning of
Section 1445(f) of the Internal Revenue Code (the "Code") and is not a
"foreign partner" within the meaning of Section 1446 of the Code.
e. Legal Actions Regarding Property. There is no legal action, suit or other
legal or administrative proceeding pending or threatened before any court
or administrative agency relating to the Property. Seller has received no
written notice of any default, failure or breach by Seller under any
covenants, conditions, restrictions, rights -of -way or easements affecting the
Property or any portion thereof which remains uncured. To Seller's
knowledge, there are no violations of any fire, health, safety, pollution,
environmental, zoning or other laws, ordinances, rules or regulations with
respect to the Property, which have not been heretofore entirely corrected;
and Seller has not received any notice or summons issued by any federal,
state, county or municipal authority alleging a violation of any fire, health,
safety, pollution, environmental, zoning or other laws, ordinances, rules or
regulations with respect to the Property.
f. Environmental Matters. Seller represents and warrants to Purchaser, to the
best of Seller's knowledge, that: (i) that Seller has received no written notice
that any part of the Property is located within an area that has been
designated by the Federal Emergency Management Agency, the Army
Corps of Engineers or any other governmental body as located in a flood
plain area or a "wetlands" area; (ii) there are no underground storage tanks
in the Property; (ii) no leak, spill, release, discharge, emission or disposal
of hazardous or toxic material or substances (as defined under any federal
state or local laws governing the environment) has occurred on the Property;
and (iii) Seller has furnished to Purchaser complete and accurate copies of
all environmental audits, assessments, reports, studies, analyses and
correspondence regarding the Property.
g. Leases. There are no leases (or other agreements regarding use or
occupancy) of the Property which will be in force at Closing and under
which Seller is the landlord except a crop lease by Tom Hutchings, which
Seller agrees to terminate upon completion of the 2017 harvest.
h. No Consents or Approval. Subject to Section 11 herein, there are no
consents or approvals required of or from any party to consummate the
transactions contemplated by this Agreement.
i. Taxes. Seller has paid all real estate and personal property taxes (including
any interest and penalties thereon) currently due and payable with respect
to the Property. There are no valuation complaints or other tax proceedings
by any governmental entity pending or, to the knowledge of Seller,
threatened, with respect to the Property.
Assessments. To the best of Seller's knowledge, there are no special or
other governmental, quasi -governmental, public or private assessments for
public improvements or otherwise now affecting the Property (other than
those special assessments or typical municipal maintenance and operation
of such items as sewer, water, drainage and the like which appear annually
as a part of the real estate tax bill affecting the Property).
13. Warranties and Representations of Purchaser. Purchaser hereby represents and
warrants to Seller as follows as of the Effective Date:
a. Organization: Authority. Purchaser is a duly formed and validly existing
limited liability company under the laws of the State of Delaware with
Certificate of Authority to conduct business in the State of Indiana.
Purchaser has the legal power, right and authority to enter into this
Agreement and to execute and deliver the instruments and documents
referenced herein, and to consummate the transaction contemplated hereby.
b. Due Authorization, Binding Agreement. The execution, delivery and
performance of this Agreement by Purchaser has been duly and validly
authorized by all necessary action of Purchaser. This Agreement has been
duly executed and delivered by Purchaser, and constitutes the legal, valid
and binding obligation of Purchaser, enforceable against Purchaser in
accordance with the terms hereof, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability relating
to or affecting creditors' rights.
C. Non -Foreign Status. Purchaser is not a "foreign person" within the meaning
of Section 1445(f) of the Code and is not a "foreign partner" within the
meaning of Section 1446 of the Code.
14. Notices. All notices and other communications required or permitted to be given
hereunder shall be in writing and shall be mailed by certified or registered mail, postage prepaid,
or by a nationally recognized overnight carrier, addressed as follows:
If to Seller:
The Economic Development Corporation
Of Wayne County, Indiana
Attention: Valerie Shaffer, President
900 North E Street, Suite 100
Richmond, IN 47374
with a copy to:
George M. Sowers, Esq.
KNOLL, KOLGER, SOWERS
& METZGER
111 South 7" Street, Suite A
Richmond, IN 47374
If to Purchaser.
Heartland Pet Food Manufacturing Indiana
LLC
c% Blue Buffalo Company, LTD
11 River Road
Wilton, CT 06897
Attention: General Counsel
with a copy to:
Kirk A. Weikart, Esq.
GARDNER SAYRE & WEIKART
1050 North J Street
Richmond, IN 47374
Notice shall be deemed to have been given upon evidence of receipt or refusal.
15. Closin . The Closing shall take place at a place and time mutually agreed upon
by the parties, within ten (10) days following the expiration of the Due Diligence Period.
16. Closing Costs. Notwithstanding anything to the contrary contained herein, the
Closing costs shall be paid as follows:
By Seller:
a. The cost of releasing any mortgage, financing statement, other debt security or
any attachments, assessments, delinquent real estate taxes or mechanic's or
materialmens' liens outstanding against the Property;
Cost of title examination of the Property, Commitment and Title Policy; and
C. Preparation of Special Warranty Deed.
d. One-half (1/2) of the closing or escrow fee, if any.
By Purchaser:
a. All recording costs to record the Deed and any mortgage required by Purchaser's
lender, if any;
b. One half of the closing or escrow fee, if any.
17. Prevailing Party. Any party to this agreement who is the prevailing party in any
legal or equitable proceeding against the other party brought under or with relation to the
agreement or transaction shall be additionally entitled to recover court costs and reasonable
attorney's fees from the non -prevailing party.
18. Entire Agreement. This Agreement contains the entire agreement between Seller
and Purchaser, and there are no other terms, conditions, promises, undertakings, statements or
representations, expressed or implied, concerning the sale contemplated by this Agreement.
19. Headings; Interpretation. The headings to the Sections hereof have been inserted
for convenience of reference only and shall in no way modify or restrict any provisions hereof or
be used to construe any such provisions. The term "including," when used in this Agreement,
means "including, without limitation," and shall be construed as a term of illustration, and not a
term of limitation. Whenever reference is made to a number of "days" in the computation of time
hereunder, such reference shall mean "calendar days" unless otherwise indicated. Wherever any
period of time is specified herein for the taking of any action or the giving of any notice, the period
shall be computed by excluding the day upon which the period is specified to commence and
including the last day of the period specified. Whenever the time for performance of an obligation
occurs or expires on a day other than a business day, the time for performance thereof shall be
extended to the next business day.
20. Modifications. The terms of this Agreement may not be amended, waived or
terminated orally, but only by an instrument in writing signed by both Seller and Purchaser.
21. Succession and Assignment. This Agreement shall inure to the benefit of and bind
the parties hereto and their respective successors and assigns. All rights hereunder may be assigned
without restriction, provided that notice of each assignment shall be given in writing to the other
partY-
22. Governing Law; Waiver of Jury Trial, This Agreement shall be governed by the
laws of the State of Indiana. The parties hereby waive any right to trial by jury.
23. Construction. This Agreement shall not be construed more strictly against one
party than against the other merely by virtue of the fact that it may have been prepared by counsel
for one of the parties, it being recognized that each of Seller and Purchaser have contributed
substantially and materially to the preparation of this Agreement.
24. Survival. The parties agree that, except as otherwise specifically provided
herein, each of the covenants, representations and warranties set forth in this Agreement shall
survive the Closing for a period of one (1) year.
25. Severability. If any term, covenant or condition of this Agreement, or the
application thereof to any person, party or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term, covenant or
condition to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby; and each term, covenant or condition of this
Agreement shall be valid and enforced to the fullest extent permitted by law.
26. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, and both of which together shall form a single instrument. The
execution of this Agreement by facsimile or other electronic form (e.g. PDF) of signature shall
be binding and enforceable as an original; provided, that any party delivering a facsimile or
electronic document shall thereafter execute and deliver to the other party an original
instrument, as soon as reasonably possible thereafter.
27. Reporting. The Escrow Agent is hereby designated the "real estate reporting
person" for purposes of Section 6045 of Title 26 of the United States Code and Treasury
Regulation 1.60454, if applicable. Following the Closing, Purchaser shall cause to be filed a
Form 1099 information return (or other applicable form) by the date required by Law. Seller
shall cooperate with Purchaser in connection with all real estate reporting requirements. This
Section shall survive the Closing.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be duly
executed as of the
SELLER:
ECONOMIC DEVELOPMENT CORPORATION
OF WAYNE COUNTY, INDIANA, an Indiana
nonprofit corporation
By:
Name:
Title: prp 6 i0b N {-
PURCHASER:
HEARTLAND PET FOOD MANUFACTURING
INDI ANA. LLC /I
By.
Name:
Title:
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t 1:1 Iml
TrrFA
0