**Exhibit10.1**

 

**FIRST AMENDMENT**

 

**THIS****FIRST AMENDMENT** (the “**Amendment**”) is made and entered into as ofJuly 20, 2004, by and between **MA-NEWENGLAND EXECUTIVE PARK, L.L.C., a Delaware limited liability company**(“**Landlord**”) and **RADVIEW SOFTWARE INC., a New Jersey corporation** (“**Tenant**”).

 

**RECITALS**

 

A.**                                  **Landlord (as successor in interest to EOP-NewEngland Executive Park, L.L.C., a Delaware limited liability company) andTenant are parties to that certain lease dated January 5, 2000, whichlease has been previously amended by a commencement letter dated March 14,2000 (collectively, the “**Lease**”).  Pursuant to the Lease, Landlord has leasedto Tenant space currently containing approximately **11,228** rentable square feet (the “**Original Premises**”) described as Suite No. 140 on the 1stfloor of the building commonly known as 7 New England Executive Park located at7 New England Executive Park, Burlington, Massachusetts (the “**Building**”).

 

B.**                                    **Tenant and Landlord agree to relocate Tenantfrom the Original Premises to **4,929**rentable square feet of space described as Suite No. 130 on the 1stfloor of the Building shown on**Exhibit A**attached hereto (the “**Substitution Space**”).

 

C.                                     The Lease by its terms shall expire onMarch 31, 2005 (“**Prior Termination Date**”),and the parties desire to extend the Term, all on the following terms andconditions.

 

**NOW, THEREFORE**, in consideration of the above recitals which by this reference areincorporated herein, the mutual covenants and conditions contained herein andother valuable consideration, the receipt and sufficiency of which are herebyacknowledged, Landlord and Tenant agree as follows:

 

1.**                                      ****Substitution.**

 

1.01.                        Effective as of the Substitution Effective Date (hereinafter defined),the Substitution Space is substituted for the Premises and, from and after theSubstitution Effective Date, the Premises, as defined in the Lease, shall bedeemed to mean the Substitution Space containing **4,929** rentable square feet and described as Suite No. 130 onthe 1st floor of the Building.

 

1.02.                        The Term for the Substitution Space shall commence on the SubstitutionEffective Date and, unless sooner terminated pursuant to the terms of theLease, shall end on the Extended Termination Date (as hereinafterdefined).  The Substitution Space issubject to all the terms and conditions of the Lease except as expresslymodified herein and except that Tenant shall not be entitled to receive anyallowances, abatements or other financial concessions granted with respect tothe Original Premises unless such concessions are expressly provided for hereinwith respect to the Substitution Space. Effective as of the Substitution Effective Date, the Lease shall beterminated with respect to the Original Premises, and, unless otherwisespecified, “**Premises**” shall meanthe Substitution Space. Tenant shall vacate the Original Premises within 7Business Days following the Substitution Effective Date (such date that Tenantis required to vacate the Original Premises being referred to herein as the “**Original Premises Vacation Date**”) andreturn the same to Landlord in “broom clean” condition and otherwise inaccordance with the terms and conditions of the Lease. Notwithstanding anythingto the contrary contained herein, if the Original Premises Vacation Date issubsequent to the Substitution Effective Date (such period commencing on theSubstitution Effective Date and ending on the Original Premises Vacation Date,inclusive, is referred to herein as the “**VacationPeriod**”), then, during the Vacation Period, Tenant shall comply withall terms and provisions of the Lease with respect to the Original Premises asthough the Original Premises were still deemed part of the Premises hereunder,except that Tenant shall not be obligated to pay Base Rent or Additional Rent

 

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withrespect to the Original Premises during the Vacation Period.  Following the Vacation Period, to the extentthat Tenant has not vacated the Original Premises, then Tenant’s obligation forpayment of Base Rent or Additional Rent with respect to the Original Premisesshall be determined in accordance with Section 11 hereof.

 

2.                                       **Substitution Effective Date.**

 

2.01.                        The “**Substitution Effective Date**”shall be the later to occur of (i) July 15, 2004 (the “**Target Substitution Effective Date**”), and(ii) the date upon which the Landlord Work (as defined in the Work Letterattached as **Exhibit B** hereto) inthe Substitution Space has been substantially completed; provided however, thatif Landlord shall be delayed in substantially completing the Landlord work inthe Substitution Space as a result of the occurrence of a Tenant Delay (definedbelow), then, for purposes of determining the Substitution Effective Date, thedate of substantial completion shall be deemed to be the day that said LandlordWork would have been substantially completed absent any such TenantDelay(s).  A “**Tenant Delay**” means any act or omission of Tenant or itsagents, employees, vendors or contractors that actually delays substantialcompletion of the Landlord Work, including, without limitation, the following:

 

a.                                       Tenant’s failure to furnish information orapprovals within any time period specified in the Lease or this Amendment,including the failure to prepare or approve preliminary or final plans by anyapplicable due date;

 

b.                                      Tenant’s selection of equipment or materialsthat have long lead times after first being informed by Landlord that theselection may result in a delay;

 

c.                                       Changes requested or made by Tenant topreviously approved plans and specifications;

 

d.                                      The performance of work in the SubstitutionSpace by Tenant or Tenant’s contractor(s) during the performance of theLandlord Work; or

 

e.                                       If the performance of any portion of theLandlord Work depends on the prior or simultaneous performance of work byTenant, a delay by Tenant or Tenant’s contractor(s) in the completion of suchwork.

 

TheSubstitution Space shall be deemed to be substantially completed on the datethat Landlord reasonably determines that all Landlord Work has been performed(or would have been performed absent any Tenant Delay[s]), other than anydetails of construction, mechanical adjustment or any other matter, thenonperformance of which does not materially interfere with Tenant’s use of theSubstitution Space. Landlord shall use reasonable efforts to notify Tenant(which notice shall be given in writing or by email, confirmation of receiptrequested, to Tenant’s CFO), of any circumstances of which Landlord is awarethat have caused or may cause a Tenant Delay, so that Tenant may take whateveraction is appropriate to minimize or prevent such Tenant Delay. The adjustmentof the Substitution Effective Date and, accordingly, the postponement ofTenant’s obligation to pay Rent on the Substitution Space shall be Tenant’ssole remedy and shall constitute full settlement of all claims that Tenantmight otherwise have against Landlord by reason of the Substitution Space notbeing ready for occupancy by Tenant on the Target Substitution Effective Date.During any period that the Substitution Effective Date is postponed andTenant’s obligation to pay Rent for the Substitution Space is correspondinglypostponed, Tenant shall continue to be obligated to pay Rent for the OriginalPremises in accordance with the terms of the Lease.  Landlord shall use reasonable efforts to provide Tenant withadvance notice (which shall be given in writing or by email, confirmation ofreceipt requested, to Tenant’s CFO) of the estimated Substitution EffectiveDate at least 1 week prior to such estimated Substitution Effective Date, butLandlord’s failure to accurately estimate the Substitution Effective Date shallin no manner affect the Substitution Effective Date or any other obligations ofLandlord or Tenant hereunder.  Upon finaldetermination of the Substitution Effective

 

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Date,Landlord shall notify Tenant in writing (or by email, confirmation of receiptrequested, to Tenant’s CFO) of the actual Substitution Effective Date.  Landlord shall designate a Project Manager(as the same may change from time to time) to oversee the Landlord Work andliaise with Tenant with respect to the same and Tenant’s removal from theOriginal Premises.  The name and contactinformation of the initial Landlord Project Manager shall be set forth in **Exhibit B** attached hereto.  Such Project Manager shall communicate withTenant’s CFO unless and until Tenant designates, and so informs Landlord inwriting (or by email, confirmation of receipt requested, to Landlord’s ProjectManager), of a different Tenant contact.

 

2.02.                        In addition to the postponement, if any, of the Substitution EffectiveDate as a result of the applicability of Section 2.01. of this Amendment,the Substitution Effective Date shall be delayed to the extent that Landlord failsto deliver possession of the Substitution Space for any other reason (otherthan Tenant Delays), including, but not limited to, holding over by prioroccupants.  Any such delay in theSubstitution Effective Date shall not subject Landlord to any liability for anyloss or damage resulting therefrom.

 

2.03.                        Notwithstanding the foregoing, if the Substitution Effective Date hasnot occurred on or before the Required Completion Date (defined below), Tenant,as its sole remedy, may terminate this Amendment by giving Landlord writtennotice of termination on or before the earlier to occur of:  (i) 5 Business Days after the RequiredCompletion Date; and (ii) the Substitution Effective Date.  In such event, this Amendment shall bedeemed null and void and of no further force and effect and Tenant shallpromptly refund any reduction in the Security Deposit (as provided inSection 6 below) to Landlord, and, so long as Tenant has not previouslydefaulted under any of its obligations under the Work Letter, the partieshereto shall have no further responsibilities or obligations to each other withrespect to this Amendment, provided that Landlord and Tenant shall remainliable for all obligations under the Lease with respect to the OriginalPremises for the period through and including the Prior Termination Date. The “**Required Completion Date**” shall mean thedate which is 90 days after the later of the date this Amendment is properlyexecuted and delivered by Tenant, the date all prepaid rental, SecurityDeposits and guaranties required under this Amendment are delivered toLandlord, the date the building permit for the Landlord Work has been obtained,and, if applicable, the date all contingencies, if any, specified in thisAmendment have been satisfied or waived in writing by Landlord.  Landlord and Tenant acknowledge and agreethat:  (i) the determination of theSubstitution Effective Date shall take into consideration the effect of any TenantDelays; and (ii) the Required Completion Date shall be postponed by the numberof days the Substitution Effective Date is delayed due to events of ForceMajeure (as defined in the Lease). Notwithstanding anything herein to the contrary, if Landlord determinesin good faith that it will be unable to cause the Substitution Effective Dateto occur by the Required Completion Date, Landlord shall have the right toimmediately cease its performance of the Landlord Work and provide Tenant withwritten notice (the “**Completion DateExtension Notice**”) of such inability, which Completion DateExtension Notice shall set forth the date on which Landlord reasonably believesthat the Substitution Effective Date will occur.  Upon receipt of the Completion Date Extension Notice, Tenantshall have the right to terminate this Amendment by providing written notice oftermination to Landlord within 5 Business Days after the date of the CompletionDate Extension Notice.  If Tenant doesnot terminate this Amendment within such 5 Business Day period, the Required CompletionDate automatically shall be amended to be the date set forth in Landlord’sCompletion Date Extension Notice.

 

3.**                                      ****Extension.**  TheTerm of the Lease is extended and shall terminate on the date (the “**Extended Termination Date**”) which is theday before the 5th anniversary of the Substitution Effective Date,unless sooner terminated in accordance with the terms of the Lease.  That portion of the Term commencing the dayimmediately following the Prior Termination Date (“**Extension Date**”) and ending on the Extended Termination Dateshall be referred to herein as the “**ExtendedTerm**”.

 

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4.**                                      ****Base Rent.**  Asof the Substitution Effective Date, the schedule of Base Rent payable withrespect to the Premises during the remainder of the current Term and theExtended Term is the following:

 
| **Months of Term**                     |   | **Annual  Rate Per Square Foot** |   | **Monthly  Base Rent** |   |
|----------------------------------------|--------|----------------------------------|--------|------------------------|--------|
|                                   |   |                             |   |                   |   |
| Substitution Effective Date - Month 24 |   | $                                | 16.00  |                   | $      | 6,572.00 |   |
| Month 25 - Month 36                    |   | $                                | 17.00  |                   | $      | 6,982.75 |   |
| Month 37 - Month 60                    |   | $                                | 18.00  |                   | $      | 7,393.50 |   |

 

Allsuch Base Rent shall be payable by Tenant in accordance with the terms of theLease.

 

Landlordand Tenant acknowledge that the actual Substitution Effective Date shall be setforth in a confirmation letter to be prepared by Landlord.

 

5.                                       **Substitution Payment.**  Onor before the Substitution Effective Date, Tenant shall pay to Landlord anamount (the “**Substitution Payment**”)as a fee in connection with the relocation to the Substitution Space and not asa penalty as follows:

 

a.                                       If the Substitution Effective Date is on orbefore August 1, 2004, the Substitution Payment shall be $100,106.18.

 

b.                                      If the Substitution Effective Date is on orbefore September 1, 2004, the Substitution Payment shall be $85,895.84.

 

c.                                       If the Substitution Effective Date is on orbefore October 1, 2004, the Substitution Payment shall be $71,655.74.

 

d.                                      If the Substitution Effective Date is on orbefore November 1, 2004, the Substitution Payment shall be $57,385.62.

 

e.                                       If the Substitution Effective Date is on orbefore December 1, 2004, the Substitution Payment shall be $43,085.25.

 

f.                                         If the Substitution Effective Date is on orbefore January 1, 2005, the Substitution Payment shall be $28,754.35.

 

g.                                      If the Substitution Effective Date is on orbefore February 1, 2005, the Substitution Payment shall be $14,392.69.

 

h.                                      If the Substitution Effective Date is on orbefore March 1, 2005, the Substitution Payment shall be $0.00.

 

6.**                                      ****Security Deposit.**  Uponfull execution of this Amendment by Landlord and Tenant, the amount of Tenant’sSecurity Deposit obligation under Section VI of the Lease shall reducefrom $100,000.00 to $36,712.05. Accordingly, subsequent to the full execution of this Amendment byLandlord and Tenant, Landlord shall return a portion of the Security Deposit toTenant in accordance with Section VI of the Lease so that the remainingSecurity Deposit held by Landlord shall equal $36,712.50.

 

7.**                                      ****Tenant’s Pro Rata Share.**  Forthe period commencing with the Substitution Effective Date and ending on theExtended Termination Date, Tenant’s Pro Rata Share for the Premises is 2.4634%.

 

8.                                       **Expenses and Taxes.**  Forthe period commencing with the Substitution Effective Date and ending on theExtended Termination Date, Tenant shall pay for Tenant’s Pro Rata Share ofExpenses and Taxes applicable to

 

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thePremises in accordance with the terms of the Lease, provided, however, duringsuch period, the Base Year for the computation of Tenant’s Pro Rata Share ofExpenses applicable to the Premises is calendar year 2004 and the Base Year forthe computation of Tenant’s Pro Rata Share of Taxes applicable to the Premisesis Fiscal Year 2005 (i.e., July 1, 2004 to June 30, 2005).

 

9.**                                      ****Improvements to SubstitutionSpace.**

 

9.01.                        **Condition of Substitution Space.** Tenant has inspected the Substitution Space and agrees to accept thesame “as is” without any agreements, representations, understandings orobligations on the part of Landlord to perform any alterations, repairs orimprovements, except as may be expressly provided otherwise in this Amendment.

 

9.02.                        **Responsibility for Improvements to Substitution Space.** Landlord shall perform improvements to the Substitution Space inaccordance with the Work Letter attached hereto as **Exhibit B**.

 

10.                                 **Early Access to SubstitutionSpace**. If Tenant is permitted to take possession ofthe Substitution Space before the Substitution Effective Date, such possessionshall be subject to the terms and conditions of the Lease and this Amendmentand Tenant shall pay Base Rent and Additional Rent applicable to theSubstitution Space to Landlord for each day of possession prior to theSubstitution Effective Date.  However,except for the cost of services requested by Tenant (e.g. freight elevatorusage), Tenant shall not be required to pay Rent for the Substitution Space forany days of possession before the Substitution Effective Date during whichTenant, with the approval of Landlord, is in possession of the SubstitutionSpace for the sole purpose of performing improvements or installing furniture,equipment or other personal property. In connection therewith, and subject to the terms of thisSection 9, Landlord grants Tenant the right to enter the SubstitutionSpace, at Tenant’s sole risk, (i) following installation of the ceiling grid inthe Substitution Space, solely for the purpose of installing telecommunicationsand data cabling in the Substitution Space, and (ii) following installation ofthe carpeting in the Substitution Space, solely for the purpose of installingequipment, furnishings and other personalty. Except for the cost of services requested by Tenant, Tenant shall not berequired to pay Rent for the Substitution Space for any days of possession ofthe Substitution Space prior to the Substitution Effective Date during whichTenant is permitted entry to the Substitution Space for the purposes describedin the immediately preceding sentence. Landlord may withdraw such permission to enter the Substitution Spaceprior to the Substitution Effective Date at any time that Landlord reasonablydetermines that such entry by Tenant is causing a dangerous situation forLandlord, Tenant or their respective contractors or employees, or if Landlordreasonably determines that such entry by Tenant is hampering or otherwisepreventing Landlord from proceeding with the completion of Landlord’s Work atthe earliest possible date.

 

11.                                 **Holding Over**.  IfTenant continues to occupy the Original Premises after the Original PremisesVacation Date (as defined in Section 1 above), occupancy of the OriginalPremises subsequent to the Original Premises Vacation Date shall be that of atenancy at sufferance and in no event for month-to-month or year-to-year, butTenant shall, throughout the entire holdover period, be subject to all the termsand provisions of Section XXV (Holding Over) of the Lease as qualified bythe terms set forth in Section 1.02 of this Amendment.

 

12.**                                ****Other Pertinent Provisions.** Landlord and Tenant agree that, effective as of the date of thisAmendment (unless different effective dates are specifically referenced in thisSection), the Lease shall be amended in the following additional respects:

 

12.01                     **Parties’ Notice Addresses.** Effective as of the date hereof, the respective Notice Addresses forLandlord and Tenant as set forth in Article I.M. of the Lease are herebydeleted and replaced with the following:

 

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| “Landlord:                                                                                                                               |   | With  a copy to:                                                                                                          |
|-----------------------------------------------------------------------------------------------------------------------------------------------|--------|---------------------------------------------------------------------------------------------------------------------------|
|                                                                                                                                          |   |                                                                                                                      |
| MA-New  England Executive Park, L.L.C.  c/o Equity Office  100 Summer Street  Boston, Massachusetts  02110  Attn:  Property Manager |   | Equity  Office  Two North Riverside Plaza  Suite 2100  Chicago, Illinois  60606  Attn:  Boston Regional Counsel |
|                                                                                                                                          |   |                                                                                                                      |
| Tenant:                                                                                                                                       |
|                                                                                                                                          |
| RadView  Software, Inc.                                                                                                                       |
| 7  New England Executive Park                                                                                                                 |
| Burlington,  Massachusetts                                                                                                                    |
| Attn:  Mr. Chris Dineen, CFO                                                                                                             |

 

12.02                     **Renewal Option.**

 

A.                                   Grant of Option; Conditions. Tenant shall have the right to extend the Extended Term (the “**Renewal Option**”) for one additional periodof 5 years commencing on the day following the Extended Termination Date of theExtended Term and ending on the 5th anniversary of the ExtendedTermination Date (the “**Second Renewal Term**”),if:

 

1.                                       Landlord receives notice of exercise (“**Initial Renewal Notice**”) not less than 9full calendar months prior to the expiration of the Extended Term and not morethan 12 full calendar months prior to the expiration of the Extended Term; and

 

2.                                       Tenant is not in default under the Leasebeyond any applicable cure periods at the time that Tenant delivers its InitialRenewal Notice or at the time Tenant delivers its Binding Notice (as definedbelow); and

 

3.                                       No part of the Premises is sublet (other thanpursuant to a Permitted Transfer, as defined in Article XII of the Lease)at the time that Tenant delivers its Initial Renewal Notice or at the timeTenant delivers its Binding Notice; and

 

4.                                       The Lease, as amended, has not been assignedby Tenant (other than pursuant to a Permitted Transfer, as defined inArticle XII of the Lease) prior to the date that Tenant delivers itsInitial Renewal Notice or prior to the date Tenant delivers its Binding Notice.

 

B.                                     Terms Applicable to Premises During SecondRenewal Term.

 

1.                                       The initial Base Rent rate per rentablesquare foot for the Premises during the Second Renewal Term shall equal thePrevailing Market (hereinafter defined) rate per rentable square foot for thePremises.  Base Rent during the SecondRenewal Term shall increase, if at all, in accordance with the increasesassumed in the determination of Prevailing Market rate.  Base Rent attributable to the Premises shallbe payable in monthly installments in accordance with the terms and conditionsof Article IV of the Lease.

 

2.                                       Tenant shall pay Additional Rent (i.e., Taxesand Expenses) for the Premises during the Second Renewal Term in accordancewith Article IV of the Lease, and the manner and method in which Tenantreimburses Landlord for Tenant’s share of Taxes and Expenses and the Base Year,if any, applicable to such matter, shall be

 

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someof the factors considered in determining the Prevailing Market rate for theSecond Renewal Term.

 

C.                                     Procedure for Determining Prevailing Market. Within 30 days after receipt of Tenant’s Initial Renewal Notice,Landlord shall advise Tenant of the applicable Base Rent rate for the Premisesfor the Second Renewal Term.  Tenant,within 15 days after the date on which Landlord advises Tenant of theapplicable Base Rent rate for the Second Renewal Term, shall either (i) giveLandlord final binding written notice (“**BindingNotice**”) of Tenant’s exercise of its Renewal Option, or (ii) ifTenant disagrees with Landlord’s determination, provide Landlord with writtennotice of rejection (the “**Rejection Notice**”).  If Tenant fails to provide Landlord witheither a Binding Notice or Rejection Notice within such 15 day period, Tenant’sRenewal Option shall be null and void and of no further force and effect.  If Tenant provides Landlord with a BindingNotice, Landlord and Tenant shall enter into the Second Renewal Amendment (asdefined below) upon the terms and conditions set forth herein.  If Tenant provides Landlord with a RejectionNotice, Landlord and Tenant shall work together in good faith to agree upon thePrevailing Market rate for the Premises during the Second Renewal Term.  When Landlord and Tenant have agreed uponthe Prevailing Market rate for the Premises, such agreement shall be reflectedin a written agreement between Landlord and Tenant, whether in a letter or otherwise,and Landlord and Tenant shall enter into the Second Renewal Amendment inaccordance with the terms and conditions hereof.  Notwithstanding the foregoing, if Landlord and Tenant are unableto agree upon the Prevailing Market rate for the Premises within 30 days afterthe date Tenant provides Landlord with the Rejection Notice, Tenant’s RenewalOption shall be deemed to be null and void and of no force and effect.

 

D.                                    Second Renewal Amendment.  IfTenant is entitled to and properly exercises its Renewal Option, Landlord shallprepare an amendment (the “**Second RenewalAmendment**”) to reflect changes in the Base Rent, Term, TerminationDate and other terms which may be agreed upon by the parties.  The Second Renewal Amendment shall be sentto Tenant within a reasonable time after Landlord’s receipt of the BindingNotice or other written agreement by Landlord and Tenant regarding thePrevailing Market rate, and Tenant shall execute and return the Second RenewalAmendment to Landlord within 15 days after Tenant’s receipt of same, but, uponfinal determination of the Prevailing Market rate applicable during the SecondRenewal Term as described herein, an otherwise valid exercise of the RenewalOption shall be fully effective whether or not the Second Renewal Amendment isexecuted.

 

E.                                      Definition of Prevailing Market.  Forpurposes of this Renewal Option, “**PrevailingMarket**” shall mean the arms length fair market annual rental rateper rentable square foot under renewal leases and amendments entered into on orabout the date on which the Prevailing Market is being determined hereunder forspace comparable to the Premises in the Building and office buildingscomparable to the Building in the Burlington, Massachusetts area.  The determination of Prevailing Market shalltake into account any material economic differences between the terms of theLease and this Amendment and any comparison lease or amendment, such as rentabatements, construction costs and other concessions and the manner, if any, inwhich the landlord under any such lease is reimbursed for operating expensesand taxes.  The determination ofPrevailing Market shall also take into consideration any reasonably anticipatedchanges in the Prevailing Market rate from the time such Prevailing Market rateis being determined and the time such Prevailing Market rate will becomeeffective under this Amendment.

 

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12.03                     **Assignment and Subletting.**

 

A.                                   Effective as of the date of this Amendment,the first sentence of Section XII.A. of the Lease is deleted in itsentirety and replaced with the following:

 

“Exceptin connection with a Permitted Transfer (defined in Section XII.E. below),Tenant shall not assign, sublease, transfer or encumber any interest in thisLease or allow any third party to use any portion of the Premises (collectivelyor individually, a “Transfer”) without the prior written consent of Landlord,which consent shall not be unreasonably withheld or delayed if Landlord doesnot elect to exercise its termination rights under Section XII.B. below.”

 

B.                                     Effective as the date of this Amendment, thefirst sub-clause of the second sentence of Section XII.A. of the Leaseshall be deleted in its entirety and replaced with the following:

 

“(1)with respect to an assignee, the proposed assignee’s financial condition doesnot meet the criteria Landlord uses to select Building tenants having similarleasehold obligations, and with respect to a subtenant, the proposed subtenantis not financially able to meet its sublease obligations, including its obligationto pay rent under the sublease as they become due, such inability to bereasonably determined by Landlord based on a review of such proposedsubtenant’s financial statements;”

 

C.                                     Effective as of the date of this Amendment,the fifth sub-clause of the first sentence of Section XII.E. of the Leaseshall be deleted in its entirety and replaced with the following:

 

“(5)Tenant shall give Landlord written notice at least 30 days prior to theeffective date of the proposed purchase, merger, consolidation orreorganization (provided that, if prohibited by confidentiality in connectionwith a proposed purchase, merger, consolidation or reorganization, then Tenantshall give Landlord written notice within 10 days after the effective date ofthe proposed purchase, merger, consolidation or reorganization).”

 

12.04                     **Contingency.**  This Amendment is contingentupon Landlord entering into a new lease, lease amendment or other writtenagreement (the “**New Agreement**”)with a third party tenant (the “**New Tenant**”)for all of the Original Premises.  Ifthe New Agreement has not been executed by the New Tenant on or beforeSeptember 15, 2004, then either Landlord or Tenant can terminate thisAmendment by delivering written notice to the other on or beforeSeptember 27, 2004.  In the eventLandlord or Tenant provide such a notice to the other, this Amendment shall benull and void and of no force or effect and the Lease shall continue in fullforce and effect with respect to the Original Premises as if this Amendment hadnot been executed.  Landlord shallnotify Tenant in writing (or by email, confirmation of receipt requested toTenant’s CFO) that the New Agreement has been executed promptly followingexecution of the New Agreement by Landlord and New Tenant.

 

13.**                                ****Miscellaneous.**

 

13.01.                  ThisAmendment and the attached exhibits, which are hereby incorporated into andmade a part of this Amendment, set forth the entire agreement between theparties with respect to the matters set forth herein.  There have been no additional oral or written representations oragreements.  Under no circumstancesshall Tenant be entitled to any Rent abatement, improvement allowance,leasehold improvements, or other work to the Substitution Space, or any similareconomic incentives that may have been provided Tenant in connection withentering into the Lease, unless specifically set forth in this Amendment.Tenant agrees that neither Tenant nor its agents or any other parties acting onbehalf of Tenant shall disclose any matters set forth in this Amendment ordisseminate or distribute any information concerning the terms, details orconditions hereof to any person, firm or entity

 

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(otherthan Tenant’s agents and professional consultants) without obtaining theexpress written consent of Landlord.

 

13.02.                  Exceptas herein modified or amended, the provisions, conditions and terms of theLease shall remain unchanged and in full force and effect.

 

13.03.                  Inthe case of any inconsistency between the provisions of the Lease and thisAmendment, the provisions of this Amendment shall govern and control.

 

13.04.                  Submissionof this Amendment by Landlord is not an offer to enter into this Amendment butrather is a solicitation for such an offer by Tenant.  Landlord shall not be bound by this Amendment until Landlord hasexecuted and delivered the same to Tenant. The solicitation of offer represented by Tenant’s submission of thisAmendment shall automatically expire within 30 days of such submission ifLandlord has not countersigned this Amendment and delivered the same to Tenantwithin such 30 day period.

 

13.05.                  Thecapitalized terms used in this Amendment shall have the same definitions as setforth in the Lease to the extent that such capitalized terms are definedtherein and not redefined in this Amendment.

 

13.06.                  Tenanthereby represents to Landlord that Tenant has dealt with no broker other thanTrammell Crow Company in connection with this Amendment.  Tenant agrees to indemnify and holdLandlord, its members, principals, beneficiaries, partners, officers,directors, employees, mortgagee(s) and agents, and the respective principalsand members of any such agents (collectively, the “**Landlord Related Parties**”) harmless from all claims of anybrokers other than Trammell Crow Company claiming to have represented Tenant inconnection with this Amendment. Landlord hereby represents to Tenant that Landlord has dealt with nobroker in connection with this Amendment. Landlord agrees to indemnify and hold Tenant, its members, principals,beneficiaries, partners, officers, directors, employees, and agents, and therespective principals and members of any such agents (collectively, the “**Tenant Related Parties**”) harmless from allclaims of any brokers claiming to have represented Landlord in connection withthis Amendment.

 

13.07.                  Eachsignatory of this Amendment represents hereby that he or she has the authorityto execute and deliver the same on behalf of the party hereto for which suchsignatory is acting.

 

**[SIGNATURES ARE ON FOLLOWING PAGE]**

 

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**IN WITNESS WHEREOF**, Landlord and Tenant have duly executed this Amendment as of the dayand year first above written.

 

 
| **WITNESS/ATTEST:** | **LANDLORD:**                                                                    |
|---------------------|----------------------------------------------------------------------------------|
|                |                                                                             |
|                | **MA-NEW ENGLAND EXECUTIVE PARK, L.L.C., a Delaware  limited liability company** |
|                |                                                                             |   |
|                | By:                                                                              | Equity  Office Management, L.L.C., a Delaware limited  liability company, its non-member manager |
|                |                                                                             |   |
| /s/  KIMBERLY RUBY  |                                                                             |   | By: | /s/  GLENN VERRETTE |   |
|                |                                                                             |   |
| Name  (print):      | Kimberly  Ruby                                                                   |   |   | Name: | Glenn  Verrette |   |
|                |                                                                             |   |   |
|                |                                                                             | Title: | Vice  President - Leasing Boston Region |   |
| Name  (print):      |                                                                             |   |   |   |
|                |                                                                             |   |
|                |                                                                             |   |
| **WITNESS/ATTEST:** |                                                                             | **TENANT:** |
|                |                                                                             |   |
|                |                                                                             | **RADVIEW SOFTWARE INC., a New Jersey corporation** |
|                |                                                                             |   |   |
| /s/  KEITH BARD     |                                                                             |   | By: | /s/  CHRISTOPHER DINEEN |   |
|                |                                                                             |   |
| Name  (print):      | Keith  Bard                                                                      |   |   | Name: | Christopher  Dineen |   |
|                |                                                                             |   |
|                |                                                                             |   | Title: | Chief  Financial Officer |   |
|                |                                                                             |   |
| Name  (print):      |                                                                             |   |   |   |
|                     |                                                                                  |  |  |  |  |  |  |  |  |

 

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**EXHIBIT A**

 

**OUTLINE AND LOCATION OF SUBSTITUTION SPACE**

 

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**EXHIBIT B**

 

**WORK LETTER**

 

ThisExhibit is attached to and made a part of the Amendment by and between **MA-NEW ENGLAND EXECUTIVE PARK, L.L.C., a Delawarelimited liability company** (“Landlord”) and **RADVIEW SOFTWARE INC., a New Jersey corporation**(“Tenant”) for space in the Building located at 7 New England Executive Park,Burlington, Massachusetts.

 

Asused in this Work Letter, the **“Premises**”shall be deemed to mean the Substitution Space, as defined in the attachedAmendment.

 

1.                                       Landlord shall perform improvements to thePremises in accordance with the plans prepared by Denis J. Doyle, AIA, datedApril 21, 2004 (the “**Plans**”).  The improvements to be performed by Landlordin accordance with the Plans are hereinafter referred to as the “**Landlord Work**.”  It is agreed that construction of the Landlord Work will becompleted at Landlord’s sole cost and expense (subject to the terms ofSection 2 below) using building standard methods, materials andfinishes.  Landlord shall enter into a directcontract for the Landlord Work with a general contractor selected byLandlord.  In addition, Landlord shallhave the right to select and/or approve of any subcontractors used inconnection with the Landlord Work.  Landlord’ssupervision or performance of any work for or on behalf of Tenant shall not bedeemed a representation by Landlord that such Plans or the revisions theretocomply with applicable insurance requirements, building codes, ordinances, lawsor regulations, or that the improvements constructed in accordance with thePlans and any revisions thereto will be adequate for Tenant’s use, it beingagreed that Tenant shall be responsible for all elements of the design ofTenant’s plans (including, without limitation, compliance with law,functionality of design, the structural integrity of the design, theconfiguration of the premises and the placement of Tenant’s furniture,appliances and equipment).

 

2.                                       If Tenant shall request any revisions to thePlans, Landlord shall have such revisions prepared at Tenant’s sole cost andexpense and Tenant shall reimburse Landlord for the cost of preparing any suchrevisions to the Plans, plus any applicable state sales or use tax thereon,upon demand.  Promptly upon completionof the revisions, Landlord shall notify Tenant in writing of the increased costin the Landlord Work, if any, resulting from such revisions to the Plans.  Tenant, within one Business Day, shallnotify Landlord in writing whether it desires to proceed with such revisions.  In the absence of such writtenauthorization, Landlord shall have the option to continue work on the Premisesdisregarding the requested revision. Tenant shall be responsible for any Tenant Delay in completion of thePremises resulting from any revision to the Plans.  If such revisions result in an increase in the cost of LandlordWork, such increased costs, plus any applicable state sales or use tax thereon,shall be payable by Tenant upon demand. Notwithstanding anything herein to the contrary, all revisions to thePlans shall be subject to the approval of Landlord.

 

3.                                       This Exhibit shall not be deemed applicableto any additional space added to the Premises at any time or from time to time,whether by any options under the Lease or otherwise, or to any portion of theoriginal Premises or any additions to the Premises in the event of a renewal orextension of the original Term of the Lease, whether by any options under theLease or otherwise, unless expressly so provided in the Lease or any amendmentor supplement to the Lease.

 

LandlordProject Manager for Landlord Work:

 
| Name:      |   | Mike  O’Shaughnessey           |
|------------|--------|-------------------------------------|
| Telephone: |   | 617-425-7829                        |
| Fax:       |   | 617-425-7501                        |
| Email:     |   | mike_oshaughnessey@equityoffice.com |

 

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