FIFTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
This FIFTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this Amendment) is dated as of March 30th, 2022 (Effective Date), by and between AWARE, INC., a Massachusetts corporation (Seller); and FDS BEDFORD, LLC, a Delaware limited liability company (Purchaser). Seller and Purchaser are sometimes referred to herein as the Parties or individually as a Party.
A. Purchaser and Seller entered into that certain Agreement of Purchase and Sale dated as of April 26, 2021, as amended by that certain First Amendment to Agreement of Purchase and Sale dated August 6, 2021, that certain Second Amendment to Agreement of Purchase and Sale dated September 30, 2021, that certain Third Amendment to Agreement of Purchase and Sale dated November 15, 2021, and that certain Fourth Amendment to Agreement of Purchase and Sale dated December 1, 2021 (collectively, the Agreement), regarding the Property located 40 Middlesex Turnpike, Bedford, Massachusetts 01730; and
B. The Parties wish to amend the Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration for the mutual agreements, covenants, warranties and representations contained herein, and for other good and valuable consideration, the receipt and adequacy of which hereby are acknowledged and confessed by each of the Parties, Seller and Purchaser do hereby agree as follows:
1. Closing. Notwithstanding anything to the contrary contained in the Agreement, the Parties hereby acknowledge and agree that the Closing Date shall be June 30, 2022, or such earlier date agreed to by the Parties.
2. Post-Closing License Agreement. Section 5.6 of the Agreement is hereby deleted and replaced with the following:
Notwithstanding Section 5.5 above, Aware, Inc., as Licensee may continue to occupy the Property through September 30, 2022, to be further outlined in a post-closing license agreement in substantially the form of Exhibit E attached hereto (the License Agreement).
3. Purchasers Default. Section 8.1 of the Agreement is hereby deleted and replaced with the following:
If Purchaser defaults under this Agreement, including in its obligation to proceed to Closing in accordance with this Agreement, or if any condition set forth in Section 6.3 is not satisfied due to a default by Purchaser and Seller elects not to proceed to Closing, and if such default is not cured and/or such condition is not satisfied by the later of the (i) the Closing Date and (ii) the date fifteen (15) business days after Seller has given Purchaser written notice of the same, then Seller shall be entitled to total damages from Purchaser