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EXHIBIT 10.1
AGREEMENT OF PURCHASE AND SALE
AGREEMENT dated as of June 6, 1997, by and between THE MITRE
CORPORATION, a Delaware corporation , with a place of business at 202 Burlington
Road, Bedford, Massachusetts, (the "Seller"), and AWARE, INC., a Massachusetts
corporation, with a principle place of business at One Oak Park, Bedford,
Massachusetts 01730-1413, (the "Purchaser").
In consideration of one dollar each to the other in hand paid, the
receipt of which is hereby acknowledged, and other good and valuable
consideration, the parties hereto agree as follows:
1 Agreement to Sell and Purchase.
1.1 Real Property. The Seller agrees to sell to the Purchaser,
and the Purchaser agrees to purchase from the Seller, subject to the terms and
conditions of this Agreement, the land (the "Land") with the buildings,
structures and improvements (the "Improvements") thereon located in Bedford,
Middlesex County, Massachusetts, known as and numbered 40 Middlesex Turnpike,
Bedford, Massachusetts, all as more particularly described in Exhibit A hereto,
and all rights, privileges, easements and appurtenances benefitting the Land and
the Improvements (the Land, the Improvements and all such rights and privileges,
easements and appurtenances are sometimes collectively hereinafter referred to
as the "Real Property"), together with all right, title and interest of the
Seller in and to all strips and gores, if any, and in and to any land lying in
the bed of any highway, street, road or avenue, open or proposed, in front of or
abutting or adjoining the Real Property.
1.2 Personal Property. The Seller agrees to sell to the
Purchaser and the Purchaser agrees to purchase from the Seller, subject to the
terms and conditions of this
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Agreement, all fixtures, equipment, supplies and other personal property
attached or appurtenant to, or located in or used in connection with, the Real
Property, including, but not limited to, the items set forth in Exhibit B
annexed hereto and made a part hereof, but excluding such access and security
hardware and equipment and the like which are to be removed by the Seller prior
to the Closing Date and to be installed by the Seller on the third floor as set
forth more particularly in Exhibit B to the Lease, as hereinafter defined. All
of the foregoing fixtures, equipment, supplies and other personal property are
hereinafter referred to as the "Personal Property." The Real Property and the
Personal Property are hereinafter collectively referred to as the "Premises".
2 Purchase Price.
2.1 Purchase Price. The purchase price (the "Purchase Price")
for the Premises is SIX MILLION SIX HUNDRED SIXTY-THREE THOUSAND SIX HUNDRED
FIFTY-FIVE AND 00/100 ($6,663,655.00) DOLLARS which shall be payable as follows:
$ 250,000.00 has been paid as a deposit (the "Deposit") this
day;
$6,413,655.00 subject to adjustment as provided in Section
12 hereof, shall be paid at the time of the
delivery of the deed in cash, or by
certified, cashier's, treasurer's or bank
check or, at the Seller's option, by wire
transfer of immediately available federal
funds to a bank account designated by the
Seller by written instructions delivered to
the Purchaser at least three (3) business
days prior to the Closing.
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$6,663,655.00 TOTAL
2.2 Deposits. All deposits made hereunder shall be held in
escrow by Nutter, McClennen & Fish, LLP, attorneys for the Seller, subject to
the terms of this Agreement and shall be duly accounted for at the time for the
performance of this Agreement. Nutter, McClennen & Fish, LLP, attorneys for
Seller, shall hold all deposits in an interest bearing FDIC
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insured account. The duties of the Escrow Agent are determined solely by this
Agreement and are purely ministerial in nature.
If any dispute arises between the parties as to whether or not the
Escrow Agent is obligated to deliver the deposits (or any interest on the
deposits), the Escrow Agent is not obligated to make any delivery, but may hold
the funds until receipt of a written authorization signed by all persons having
an interest in the dispute, directing the disposition of the funds. In the
absence of a written authorization, the Escrow Agent may hold the funds until
the rights of the parties have been finally determined in an appropriate
proceeding. Moreover, the Escrow Agent may bring an appropriate proceeding for
leave to deposit the funds pending a determination of the rights of the parties.
If threatened with litigation, the Escrow Agent may interplead all interested
parties in an appropriate action and may deposit the funds with the clerk of the
court; thereupon the Escrow Agent will have no further liability under this
Agreement. The Escrow Agent may retain counsel or act as its own counsel in any
action under this Agreement. The Seller and the Purchaser shall reimburse the
Escrow Agent for all costs and expenses incurred by it in connection with any
court proceeding under this Agreement, including reasonable attorney's fees and
disbursements. The Escrow Agent may retain out of the funds it holds under this
Agreement an amount sufficient to pay these costs and expenses.
The Escrow Agent is not liable for any mistake of fact or error of
judgment, or for any acts or omissions, unless caused by its willful misconduct.
The parties to this Agreement each release the Escrow Agent from any act done or
omitted to be done by the Escrow Agent in good faith in performance of its
obligations under this Agreement. The Escrow Agent is entitled to rely on any
documents or signature believed by it to be genuine and may assume that any
person
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purporting to give any writing or instruction in connection with this Agreement
is duly authorized to do so by the party on whose behalf such writing or
instruction is given.
The undersigned jointly and severally indemnify and protect the Escrow
Agent from and hold it harmless against any loss, liability, or expense incurred
without willful misconduct on the part of the Escrow Agent, arising out of its
duties under this Agreement, as well as the costs and expenses of defending
against any claim or liability arising under this Agreement.
The Escrow Agent shall pay all interest on the Deposit to the Purchaser
at the Closing, provided however, that interest shall be paid to the Seller upon
delivery of the Deposit to the Seller on account of the Purchaser's breach. If
the Purchaser is entitled to a refund of the Deposit under the terms of this
Agreement, the Escrow Agent shall pay the interest to the Purchaser at the time
of the refund. After delivering the funds in accordance with this Agreement, the
Escrow Agent will have no further liability under this Agreement.
Seller represents that Seller is a tax exempt entity under Section
501(c)(3) of the Internal Revenue Code. Purchaser represents that Purchaser's
federal tax identification number is ___________. Purchaser agrees to execute
and deliver to the Escrow Agent a W-9 form on or before the Closing certifying
as to its federal tax identification number.
3 The Closing. The consummation of the sale and purchase as
provided for in this Agreement and delivery of the Deed (herein referred to as
the "Closing") shall take place at 10:00 a.m. on August 5, 1997 (the "Closing
Date") at the offices of Foley, Hoag & Eliot, One Post Office Square, Boston,
Massachusetts, unless otherwise agreed upon in writing; provided, however, at
any time after June 20, 1997, the Purchaser may designate an earlier Closing
Date by written notice to Seller sent not less than ten (10) days prior to the
date specified in such written
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notice by the Purchaser as the earlier Closing Date. It is agreed that time is
of the essence in this Agreement.
4 Title.
4.1 Title to Real Property. At the Closing, the Seller will
have, and will convey, deliver and transfer to the Purchaser, or to a nominee
designated by the Purchaser at least seven (7) days before the Closing, by
Quitclaim Deed, a good and clear record and marketable title to the Real
Property, free and clear of all encumbrances, liens, mortgages, security
interests, easements and other maters, except the matters set forth on Exhibit C
annexed hereto and a made a part hereof (the "Permitted Encumbrances").
4.2 Title to Personal Property. At the Closing, the Seller
shall have, and shall convey and transfer to the Purchaser, or to a nominee
designated by the Purchaser at least seven (7) days before the Closing, good and
clear record and marketable title to the Personal Property, free and clear of
all encumbrances, liens, mortgages and security interests, but without warranty,
express or implied, as to merchantability and fitness for any particular
purpose.
4.3 Title Insurance Policy. The title to the Premises shall
not be deemed to be in compliance with the provisions of Section 4.1 hereof
unless the Purchaser shall be able to obtain at the Closing from a nationally
recognized title insurance company (the "Title Company"), at normal premium
rates, an ALTA Owner's Policy (Form B-1970), in the amount of the Purchase Price
wherein the Title Company will insure that title to the Premises is vested in
the Purchaser and which title insurance policy shall contain no exceptions to
title except the Permitted Encumbrances together with such affirmative coverage
as is described in Exhibit C.
5 Condition of Premises. On the Closing Date, the Seller shall
deliver to the Purchaser full possession of the Premises, free of all tenants
and occupants except with respect to
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the Seller's right to remain as a tenant pursuant to the Lease attached hereto
as Exhibit D (the "Lease"), the Premises to be then (i) (a) in the same
condition as they now are, reasonable use and wear thereof, (b) renovations
and/or improvements to be made by the Seller to the third floor for Seller's
occupancy thereof as provided in Exhibit B to the Lease, and (c) damage by fire
or other insured casualty not exceeding $50,000 in cost to repair (a "Minor
Insured Casualty"), all of which are excepted; (ii) broom clean and free of all
property not being purchased by the Purchaser hereunder except that the Seller
need not remove the Seller's personal property located on the third floor of the
Premises; (iii) [intentionally deleted]; and (iv) in compliance with the
provisions of all Permitted Encumbrances. In the event of a Minor Insured
Casualty between the date hereof and the Closing, at the Closing insurance
proceeds in an amount sufficient to effect the repair shall be paid to the
Purchaser or, at the Seller's option, a credit shall be made against the
Purchase Price in the amount necessary to so effect the repairs. If the Premises
shall be damaged by fire or casualty which is not a Minor Insured Casualty, the
provisions of Section 14.1, 14.2 and 14.3 shall be applicable.
6 Due Diligence Period. The Purchaser shall have the opportunity
to inspect the Premises and make the following investigations within the Due
Diligence Period which shall expire on July 21, 1997:
6.1 The physical condition of the Premises, including
without limitation:
6.1.1 the structural integrity and physical condition
of the Improvements, the condition of the systems serving the Improvements, and
the fitness thereof for the Purchaser's intended use;
6.1.2 compliance of the Premises with all applicable
laws including, without limitation, Environmental Laws;
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6.1.3 the status of the Premises as determined by an
Environmental Audit to determine whether there are Hazardous Substances on the
Premises;
6.1.4 soil, seismic, hydrological, geological and
topographical evaluation;
6.1.5 whether the Premises are in a special flood
hazard zone; and
6.1.6 public access and the availability of adequate
utilities including, but not limited to, gas service, and that all such
utilities run from the public highway or a publicly dedicated street to the
Premises, or if they run through private property their installation was
pursuant to recorded easements which permit their installation, maintenance and
repairs.
6.2 Applicable government ordinances, rules and
regulations and evidence of compliance therewith, including without limitation
zoning and building regulations;
6.3 All private restrictions applicable to the Premises,
including without limitation, declaration of covenants, conditions and
restrictions, reciprocal easements and operating agreements; and
6.4 Any and all other matters concerning the current and
future use, feasibility or value, or governmental permissions or entitlements
pertaining to the Premises, or any other matter or circumstance relevant to the
Purchaser in its reasonable discretion concerning the Purchaser's acquisition of
the Premises.
6.5 The Seller agrees to cooperate with the Purchaser
during the Due Diligence Period and shall respond to the Purchaser's requests,
in a timely manner without undue delay or expense, for access, documents and
records, and other relevant information.
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7 Expiration of Due Diligence Period.
7.1 If the Purchaser fails to notify the Seller in
writing of any objections to the matters set forth in Sections 6.1 through 6.4
within the Due Diligence Period, the Purchaser will be deemed to have approved
all matters referred to therein or otherwise deemed relevant to the Purchaser in
respect to the Premises.
7.2 If the Purchaser objects to any of the matters set forth
in Sections 6.1 through 6.4, the Purchaser may terminate this Agreement by
written notice to the Seller, such notice to be delivered prior to the
expiration of the Due Diligence Period, whereupon all Deposits made hereunder
shall be refunded forthwith, all obligations of the parties hereto shall cease
and this Agreement shall be void and without recourse to the parties thereto.
8 The Purchaser's Right of Entry. The Purchaser and the
Purchaser's representatives, agents and designees will have the right, at
reasonable times and upon reasonable notice to the Seller, (which notice must
describe the scope of the planned testing and investigations) to enter upon the
Premises, in connection with the Purchaser's proposed purchase of the Premises.
However, the Purchaser agrees that:
8.1 All tests and investigations will be at the
Purchaser's sole cost and expense;
8.2 The persons or entities performing such and
investigations will be properly licensed and qualified and will have obtained
all appropriate permits and insurance therefor;
8.3 The Purchaser will advise the Seller in advance
of the dates of all tests and investigations and will schedule all tests and
investigations during normal business hours whenever feasible.
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8.4 The Seller will have the right to have a
representative of the Seller accompany the Purchaser and the Purchaser's
representatives, agents or designees while they are on the Premises;
8.5 Any entry by the Purchaser, its representative,
agents or designees will not interfere with the Seller's or any tenant's use of
the Premises; and
8.6 The Purchaser will restore those parts of the
Premises which are disturbed or damaged by the Purchaser, substantially to their
condition prior to the Purchaser's entry, at the Purchaser's sole cost and
expense if this transaction does not close. Until restoration is complete, the
Purchaser shall take all steps necessary to ensure that any conditions on the
Premises created by the Purchaser's testing will not interfere with the normal
operation of the Premises or create any dangerous, unhealthy, unsightly or noisy
conditions on the Premises. The Purchaser's obligation to restore such parts of
the Premises shall survive the termination of this Agreement.
9 Environmental Definitions. For the purposes of this Agreement,
the following terms have the following meanings:
9.1 "Environmental Law" means any law, statute, ordinance
or regulation pertaining to health, hygiene or the environment including,
without limitation CERCLA (Comprehensive Environmental Response, Compensation
and Liability Act of 1980), RCRA (Resources Conservation and Recovery Act of
1976), and Massachusetts General Laws c.21E.
9.2 "Hazardous Substances" means any substance, material
or waste which is, or becomes prior to the Closing, designated, classified or
regulated as being "toxic" or "hazardous" or a "pollutant" or which is, or prior
to the Closing becomes, similarly designated, classified or regulated, under any
Environmental Law, including asbestos, petroleum and petroleum products.
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9.3 "Environmental Audit" means an environmental audit,
review or testing of the Premises performed by the Purchaser or any third party
or consultant engaged by the Purchaser to conduct such study.
10 Representations, Warranties and Certain Covenants of the
Seller. The Seller, to induce the Purchaser to enter into this Agreement and to
purchase the Premises, represents and warrants to the Purchaser as follows:
10.1 Insurance Notices. To the Seller's knowledge, no
written notice has been given by any insurance company which has issued a policy
with respect to the Premises or by any board of fire underwriters (or other body
exercising similar functions) claiming any defects or deficiencies or requesting
the performance of any repairs, alterations or other work.
10.2 Condemnation. To the Seller's knowledge, there is no
pending condemnation or similar proceeding affecting the Premises, or any
portion thereof. The Seller has not received any written notice, and has no
knowledge, that any such proceeding is contemplated, except that the Seller is
aware that the Tri-Town Commission has proposed a widening of Middlesex
Turnpike. Such a widening might involve minor takings of property fronting on
Middlesex Turnpike.
10.3 Licenses. To the Seller's knowledge, prior to the
Closing Date, permanent certificates of occupancy, all licenses, permits,
authorizations and approvals required by all governmental authorities having
jurisdiction and the requisite certificates of the local board of fire
underwriters (or other body exercising similar functions), will have been issued
for the Premises and will have been paid for and, to the extent required under
applicable law, will be in full force and effect.
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10.4 Betterment Assessments. To the Seller's knowledge, no
portion of the Premises is subject to, or is affected by, any betterment
assessments, whether or not presently a lien thereon, and no such assessment has
been proposed.
10.5 Power and Authority. The Seller has full power and
authority, in accordance with law to enter into this Agreement and to consummate
the sale provided for herein. Neither the entering into of this Agreement nor
the consummation of said sale will constitute a violation or breach by the
Seller of any contract or other instrument to which it is a party or to which it
is subject or by which any of its assets or properties may be affected, or any
judgment, order, writ, injunction or decree issued against or imposed upon it,
or will result in a violation of any applicable law, order, rule or regulation
of any governmental authority.
10.6 Hazardous Waste. To the Seller's knowledge, except as
may be set forth in the Environmental Reports (as hereinafter defined), the
Seller has not generated, stored, or disposed of Hazardous Substances on the
Premises and the Premises have never been used for industrial or manufacturing
purposes or for the generation, storage or disposal of Hazardous Substances by
the Seller or any third party. "Environmental Reports" as used in this Section
10.6 shall mean the following: (a) "Preliminary Site Assessment for the MITRE
Office Building, 40 Middlesex Turnpike, Bedford, Massachusetts", dated November
1989, prepared by Woodward-Clyde Consultants, as updated by "Update to
Preliminary Site Assessment, MITRE Office Building, 40 Middlesex Turnpike,
Bedford, Massachusetts", dated October 1991 and (b) "Asbestos Survey for Site
Number 6, Building G, 40 Middlesex Turnpike, Bedford, Massachusetts", dated
November 15, 1989, prepared by Hygienetics, Inc.
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10.7 Personal Property. Personal Property included in the
sale is owned by the Seller free and clear of any conditional bills of sale,
chattel mortgages, security agreements, financing statements and other security
interests of any kind.
10.8 Contracts. To the Seller's knowledge, no brokerage
commission or compensation of any kind is due or will become due relating to any
prior or existing lease of the Premises, or any extensions or renewals thereof,
or this Agreement (except as otherwise specifically provided for herein) or
otherwise. There are no contracts, oral or in writing, affecting the Premises,
which will be binding upon the Purchaser or affect the Premises in any manner
after the delivery of the deed hereunder.
10.9 No Violations. To the Seller's knowledge, as of the
date hereof, the Seller has not received any written notification of any
governmental authority of any violation of federal, state or municipal laws,
ordinances, orders, regulations or requirements affecting any portion of the
Premises.
10.10 Breach of Agreements. To the Seller's knowledge, the
Seller does not know and has not received written notice of any default or
breach by the Seller under any of the covenants, conditions, restrictions,
rights of way or easements, if any, affecting the Premises or any portion
thereof, and, to the best of the Seller's knowledge, no such default or breach
now exists, and no event has occurred and is continuing which with notice or the
passage of time, or both, would constitute a default thereunder.
10.11 Mechanics' Liens. No work has been performed or is in
progress at, and no materials have been furnished to the Premises or any portion
thereof which, though not presently the subject of, may give rise to mechancis',
materialmen's or other liens against the Premises or any portion thereof.
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10.12 Actions. There is no action, suit or proceeding
pending or, to the Seller's knowledge, threatened against or affecting the
Premises or any portion thereof or relating to or arising out of the ownership
of the Premises or any portion thereof in any court or before or by any
governmental authority. To the Seller's knowledge, there is no proceeding
pending for the reduction of the assessed valuation of the Premises or any
portion thereof.
10.13 Outstanding Agreements. There are no outstanding
options or purchase and sale agreements with respect to the sale of the Premises
or any part thereof, to any person, corporation, firm, governmental authority or
other entity.
10.14 Non-Foreign Status. The Seller is not a foreign
person, as defined in Section 1445 of the Internal Revenue Code, and the
Purchaser is not required to deduct and withhold any portion of the Purchase
Price pursuant to said Section 1445.
10.15 The Seller's Documents. To the Seller's knowledge,
the Seller has, prior to the date hereof, delivered to the Purchaser copies of
all reports, studies, investigations and other documents which the Seller has in
its possession with respect to the compliance or non-compliance of the Premises
with all Environmental Laws and the condition of the Premises with respect to
Hazardous Substances.
10.16 Physical Condition of the Premises. [Intentionally
deleted.]
10.17 Warranties at Closing. The obligations of the
Purchaser hereunder shall be subject to the fulfillment prior to or at the
Closing, of each of the following conditions (any or all of which may be waived,
in writing, by the Purchaser in its sole discretion):
10.17.1 The representations and warranties made by
the Seller in this Agreement shall be true and correct in all material respects
on and as of the date of the Closing, and shall be and be deemed to be made on
and as of such date. The truth and
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correctness of each of such representations and warranties shall be of the
essence of this Agreement.
10.17.2 The Seller shall have performed all
covenants, undertakings and obligations and complied with all conditions
required by this Agreement to be performed or complied with by the Seller.
10.18 [Intentionally deleted.]
10.19 Knowledge of the Seller. References to the
"knowledge" of Seller shall refer only to the actual knowledge of George W.
Auclair, Jr., Director of MITRE Facilities and Bedford Administrative Operations
for The MITRE Corporation, and shall not be construed, by imputation or
otherwise, to refer to the knowledge of any other officer, agent, manager,
representative or employee of the Seller or to impose upon said George W.
Auclair, Jr. any duty to investigate the matter to which such actual knowledge,
or the absence thereof, pertains. Further, the Purchaser understands that George
W. Auclair, Jr. has made no investigation with respect to any such matter in
order to make any representation or statement contained herein.
11 Provisions with Respect to the Closing.
11.1 Closing Deliveries. At the Closing, the Seller shall
deliver to the Purchaser the following:
11.1.1 Quitclaim Deed (the "Deed") running to the
Purchaser, or a nominee designated by the Purchaser, conveying a good and clear
record and marketable title, free from encumbrances except for the Permitted
Encumbrances, in proper form for recording. In addition to the foregoing, if the
title to the Real Estate is registered, said deed shall be in a form sufficient
to entitle the Purchaser to a Certificate of Title of said Real Estate, and the
Seller
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shall deliver with said deed all instruments, if any, necessary to enable the
Purchaser to obtain such Certificate of Title.
11.1.2 A bill of sale or bills of sale for the
Personal Property running to the Purchaser, or a nominee designated by the
Purchaser, conveying a good and clear, record and marketable title, free from
encumbrances, liens, mortgages and security interests but without warranty,
express or implied, as to merchantability and fitness for any purpose.
11.1.3 An assignment or assignments, duly executed by
the Seller, assigning to the Purchaser all existing, assignable guaranties and
warranties issued in connection with the construction, improvement, alteration
and repair of the Premises, together with the original of each such guaranty or
warranty, if in the Seller's possession.
11.1.4 The original of each certificate, license,
permit, authorization and approval, if any, required by law, in the Seller's
possession, with respect to the Premises and issued by all governmental
authorities having jurisdiction, together with an assignment thereof, duly
executed by the Seller, if the same is assignable.
11.1.5 A complete set of "as-built" plans and
specifications for all buildings and other improvements at the Premises
(including architectural, structural, mechanical and electrical) and all surveys
prepared in connection therewith, to the extent the same exists and are in the
possession of the Seller.
11.1.6 The original of each bill, if not yet due and
payable prior to the Closing, for current real estate, ad valorem and personal
property taxes, sewer charges and assessments, water charges and other
utilities, or if payable prior to the Closing but after the date of any
Municipal Lien Certificate obtained by the Purchaser, a copy of such bill,
together with proof of payment.
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11.1.7 Such affidavits or letters of indemnity as the
Purchaser's Title Insurance Company shall reasonably require in order to omit
from its title insurance policy all exceptions for mechanic's, materialmen's or
similar liens and for parties in possession.
11.1.8 A certificate by the Seller to the effect that
all of the representations and warranties set forth in Section 10 remain true
and correct as of the Closing Date.
11.1.9 The keys to the Premises, except keys or
access passes to the Leased Premises (as defined in the Lease) to be occupied by
the Seller.
11.1.10 An affidavit stating that the Seller is not a
"foreign person", and therefore, not subject to the withholding of any portion
of the Purchase Price pursuant to Section 1445 of the Internal Revenue Code.
11.1.11 Clerk's Certificate which recites that the
execution and delivery of the Deed hereunder by officers of the Seller has been
voted and is duly authorized by the Seller's Board of Directors and which
further identifies such officers by name and certifies that they were duly
elected and at the time they executed the deed they were acting in their
official capacity.
11.1.12 [Intentionally deleted.]
11.1.13 A lease of the Premises, which the Purchaser
agrees to execute, such lease to be in the form attached hereto as Exhibit D.
11.2 [Intentionally Deleted.]
12 Adjustment, Special Assessments, Etc. The following shall be
adjusted between the Seller and the Purchaser and shall be prorated on a per
diem basis as of 11:59 p.m. of the day preceding the Closing Date:
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12.1 Real Estate, ad valorem and personal property taxes,
water and sewer charges and charges and other state, county and municipal taxes,
charges and assessments affecting the Premises or any portion thereof, on the
basis of the fiscal year for which the same are levied, imposed or assessed. If
the rate of any such taxes, rents, charges or assessments shall not be fixed
prior to the Closing Date, the adjustment thereof at the Closing shall be upon
the basis of the rate for the preceding fiscal year applied to the latest
assessed valuation (or other basis of valuation) and the same shall be further
adjusted when the rate for the current fiscal year is fixed.
12.2 If, on the Closing Date, the Premises or any part
thereof shall be, or shall have been affected by or shall be subject to, any
betterment assessment, then, whether or not any such assessment is then a lien
on the Premises or any portion thereof, or is payable prior to, on or after the
Closing Date, all unpaid installments of any such assessment (including those
which are to become due and payable after the Closing), shall be deemed to be
due and payable prior to the Closing and shall not be apportioned between the
Seller and the Purchaser but shall be paid and discharged by the Seller at the
Closing.
13 Insurance. Until the Closing the Seller shall keep the
Premises insured against fire and other hazards covered by extended coverage
endorsement as currently insured. The risk of loss in and to the Premises shall
remain vested in the Seller until the Purchaser accepts and records the Deed.
14 Failure to Perform.
14.1 Extension to Perfect Title. If the Seller shall be
unable to give title or to make conveyance, or to deliver possession of the
Premises, all as herein stipulated, or if at the time of the Closing the
Premises do not conform with the provisions hereof, then the Seller shall
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use reasonable efforts, not to exceed the expenditure of more than $25,000 by
the Seller, to remove any defects in title, or to deliver possession as provided
herein, or to make the Premises conform to the provisions hereof, as the case
may be, in which event, the Seller shall give written notice thereof to the
Purchaser at or before the time of the Closing, and thereupon the time of the
Closing shall be extended for a period of not more than thirty (30) days, as
specified by the Seller in such notice.
14.2 Failure to Perfect Title. If at the expiration of the
extended time of the Closing, the Seller shall be unable to remove any defects
in title, deliver possession, or make the Premises conform, as the case may be,
all as herein agreed, then the Deposit and all accrued interest thereon shall be
forthwith refunded to the Purchaser and all other obligations of all parties
hereto shall cease and this Agreement shall be void and without recourse to the
parties hereto.
14.3 Purchaser's Election to Accept Title. The Purchaser
shall have the election, at either the original or any extended time for
performance, to accept such title as the Seller can deliver to the Premises in
its then condition and to pay therefor the Purchase Price, without deduction, in
which case the Seller shall convey such title.
14.4 Acceptance of Deed. The acceptance by the Purchaser
of the Deed to the Premises shall be deemed to be a full performance and
discharge of every agreement and obligation of the Seller herein contained or
expressed, except such, if any, as are, by the express terms hereof, to be
performed after the delivery of said Deed.
14.5 Use of Purchase Money to Clear Title. To enable the
Seller to make the conveyance as herein provided, the Purchaser agrees that the
Seller shall have the right to use all or a portion of the Purchase Price to
remove or discharge any or all mortgages, liens, interests or
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other encumbrances affecting the title of the Premises or any portion thereof
provided that all such instruments so procured are delivered at the Closing or,
with respect to mortgages to institutional lenders, arrangements are made to
obtain and record such mortgages within a reasonable period of time following
the Closing in accordance with customary conveyancing practice.
15 Seller's Remedies. The parties acknowledge that in the event
the Purchaser fails to fulfill its obligations hereunder it is impossible to
compute exactly the damages which would accrue to the Seller in such event. The
parties have taken these facts into account in setting the amount of the Deposit
hereunder and hereby agree that (i) the Deposit is the best estimate of such
damages which would accrue to the Seller; (ii) the Deposit represents damages
and not any penalty against the Purchaser; and (iii) if this Agreement shall be
terminated by the Seller by reason of the Purchaser's failure to fulfill the
Purchaser's obligations hereunder, the Deposits shall be paid to the Seller as
its full and liquidated damages in lieu of all other rights and remedies which
the Seller may have against the Purchaser at law or in equity.
16 Further Assurances.
In addition to the obligations required to be performed
hereunder by the Seller at the Closing, the Seller agrees from time to time to
perform such other acts, and to execute, acknowledge and/or deliver subsequent
to the Closing such other instruments, documents and other materials, as the
Purchaser may reasonably request in order to effectuate the consummation of the
transactions contemplated herein and to vest title to the Premises in the
Purchaser.
17 Taxes and Other Expenses.
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At the Closing, the Seller shall pay all federal, state and
local transfer and sales taxes imposed upon or relating to the deed or the bills
of sale or the transactions provided for herein.
18 [Intentionally deleted.]
19 Notices. Unless otherwise specifically provdied herein, all
noices, consents, directions, approvals, instructions, requests and other
communications required or permitted by the terms hereof to be given shall be
in writing, sent by United States mail, by nationally recognized courier
service or by hand, or by facsimile communication followed by such courier
service delivery, and any such notice shall become effective two (2) business
days after being deposited in the mail, certified or registered with
appropriate postage prepaid or one (1) business day after deliver to a
nationally recognized courier service specifying overnight delivery or, if
delivered by facsimile communication or by hand, when received, and shall be
directed to the address set forth below. From time to time any party may
designate a new address for purposes of notice hereunder by notice to the
other party:
To Purchaser: Richard Moberg
Chief Financial Officer
Aware, Inc.
One Oak Park Drive
Bedford, MA 01730
Phone No.: (617) 276-4000
Fax No.: (617) 276-4001
With a copy to: Jacob N. Polatin, Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
Phone No.: (617) 832-1000
Fax No.: (617) 832-7000
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To Seller: Linda G. Begen, Esquire
Corporate Legal Counsel
Mail Stop A209
202 Burlington Road
Bedford, MA 01730
Phone No.: (617) 271-2000
Fax No.: (617) 271-2175
With a copy to: Robert A. Fishman, Esquire
Nutter, McClennen & Fish, LLP
One International Place
Boston, MA 02110
Phone No.: (617) 439-2000
Fax No.: (617) 973-9748
20 Brokers. The Seller represents to the Purchaser that it was
not represented by a broker other than Spaulding & Slye, Inc. with respect to
this transaction. The Purchaser represents to the Seller that it was not
represented by a broker other than James F. McCaffrey, Meredith & Grew,
Incorporated, and Avalon Partners, Inc. Upon the recording of the Deed and the
payment of the Purchase Price, the Seller shall pay commissions to the aforesaid
brokers as follows: Spaulding & Sly, Inc., $141,500; Meredith & Grew,
Incorporated, $111,500; and Avalon Partners, Inc., $30,000.00. The party
breaching such representation hereby agrees to indemnify, protect, defend (with
counsel chosen by the nonbreaching party) and hold the non-breaching party free
and harmless from and against any and all commissions or other claims such
broker may assert in connection with the parties entering into, or consummating
the transactions contemplated by, this Agreement. The provisions of this Section
shall survive the Closing or the earlier termination of this Agreement.
21 Legal Fees. [Intentionally deleted.]
22 Assignment. The Purchaser may not assign, transfer or convey
its rights or obligations under this Agreement without the prior written consent
of the Seller, and then only if
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the Purchaser's assignee assumes in writing all of the Purchaser's obligations
hereunder; provided, however, the Purchaser shall in no event be released from
its obligations hereunder by reason or such assignment. The Purchaser, without
being relieved of liability hereunder and without obtaining the Seller's
consent, shall have the right to nominate another person or entity in whom title
to the Premises shall vest.
23 Miscellaneous.
23.1 Entire Agreement; Modifications. This Agreement
embodies and constitutes the entire understanding between the parties with
respect to the transactions contemplated herein, and all prior or
contemporaneous agreement, understandings, representations and statements, oral
or written, are merged into this Agreement. Neither this Agreement nor any
provision hereof may be waived, modified, amended, discharged or terminated
except by an instrument in writing signed by the party against which the
enforcement of such waiver, modification, amendment, discharge or termination is
sought, and then only to the extent set forth in such instrument.
23.2 Applicable Law. This Agreement shall be governed by,
and construed in accordance with, the law of the Commonwealth of Massachusetts.
23.3 Captions. The captions in this Agreement are inserted
for convenience or reference only and in no way define, describe or limit the
scope or intent of this Agreement or any of the provisions hereof.
23.4 Binding Effect. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
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23.5 No Partnership. This Agreement shall not be construed
to create or be a partnership or joint venture between the parties and the
Seller shall not be construed to be the agent of the Purchaser.
23.6 Number and Gender. As used in this Agreement, the
masculine shall include the feminine and neuter, the singular shall include the
plural and the plural shall include the singular, as the context may require.
23.7 Computation of Time Periods. Wherever herein the
words, "date of this Agreement", "the date hereof," "the date of execution
hereof" or similar phrases are used, such phrases shall mean that date upon
which two (2) fully executed copies of this Agreement with all exhibits attached
thereto are delivered to the Purchaser. If the date upon which the Due Diligence
Period expires, the Closing Date or any other date or time period provided for
in this Agreement is or ends on a Saturday, Sunday or federal, state or legal
holiday, then such date shall automatically be extended until 5 p.m. Eastern
Daylight Time of the next day which is not a Saturday, Sunday or federal, state
or legal holiday.
23.8 Counterparts. This Agreement may be executed in
multiple counterparts (and by multiple counterpart signature pages), each of
which shall be deemed an original, but all of which, together, shall constitute
but one and the same instrument.
23.9 No Obligations to Third Parties. Except as otherwise
expressly provided herein, the execution and delivery of this Agreement shall
not be deemed to confer any rights upon, nor obligate any of the parties hereto,
to any person or entity other than the parties hereto.
23.10 Exhibits and Schedules. The Exhibits attached hereto
are hereby incorporated herein by this reference for all purposes.
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23.11 Waiver. The waiver or failure to enforce any
provision of this Agreement shall not operate as a waiver of any future breach
of any such provision or any other provision thereof.
23.12 Fees and Other Expenses. Except as otherwise provided
herein, each of the parties hereto shall pay its own fees and expenses in
connection with this Agreement.
23.13 Construction. The parties hereto hereby acknowledge
and agree that (i) each party hereto is of equal bargaining strength, (ii) each
such party has actively participated in the drafting, preparation and
negotiation of this Agreement, (iii) each such party has consulted with such
party's own, independent counsel, and such other professional advisors as such
party has deemed appropriate, relative to any and all matters contemplated under
this Agreement, (iv) each such party and such party's counsel and advisors have
reviewed this Agreement, (v) each such party has agreed to enter into this
Agreement following such review and the rendering of such advice, and (vi) any
rule of construction to the effect that ambiguities are to be resolved against
the drafting parties shall not apply in the interpretation of this Agreement, or
any portions hereof, or any amendments hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal on the date first above written.
SELLER:
THE MITRE CORPORATION
By: /s/ Victor DeMarines
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Victor A. DeMarines
President and Chief Executive Officer
PURCHASER:
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AWARE, INC.
By: /s/ James C. Bender
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