Exhibit
10.1


 


FIRST AMENDMENT


 


THIS
FIRST AMENDMENT (the “Amendment”) is made and entered into as of
July 20, 2004, by and between MA-NEW
ENGLAND 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-New
England Executive Park, L.L.C., a Delaware limited liability company) and
Tenant are parties to that certain lease dated January 5, 2000, which
lease has been previously amended by a commencement letter dated March 14,
2000 (collectively, the “Lease”).  Pursuant to the Lease, Landlord has leased
to Tenant space currently containing approximately 11,228 rentable square feet (the “Original Premises”) described as Suite No. 140 on the 1st
floor of the building commonly known as 7 New England Executive Park located at
7 New England Executive Park, Burlington, Massachusetts (the “Building”).


 


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


 


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


 


NOW, THEREFORE, in consideration of the above recitals which by this reference are
incorporated herein, the mutual covenants and conditions contained herein and
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, 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 the
Substitution Effective Date, the Premises, as defined in the Lease, shall be
deemed to mean the Substitution Space containing 4,929 rentable square feet and described as Suite No. 130 on
the 1st floor of the Building.


 


1.02.                        The Term for the Substitution Space shall commence on the Substitution
Effective Date and, unless sooner terminated pursuant to the terms of the
Lease, shall end on the Extended Termination Date (as hereinafter
defined).  The Substitution Space is
subject to all the terms and conditions of the Lease except as expressly
modified herein and except that Tenant shall not be entitled to receive any
allowances, abatements or other financial concessions granted with respect to
the Original Premises unless such concessions are expressly provided for herein
with respect to the Substitution Space. 
Effective as of the Substitution Effective Date, the Lease shall be
terminated with respect to the Original Premises, and, unless otherwise
specified, “Premises” shall mean
the Substitution Space. Tenant shall vacate the Original Premises within 7
Business Days following the Substitution Effective Date (such date that Tenant
is required to vacate the Original Premises being referred to herein as the “Original Premises Vacation Date”) and
return the same to Landlord in “broom clean” condition and otherwise in
accordance with the terms and conditions of the Lease. Notwithstanding anything
to the contrary contained herein, if the Original Premises Vacation Date is
subsequent to the Substitution Effective Date (such period commencing on the
Substitution Effective Date and ending on the Original Premises Vacation Date,
inclusive, is referred to herein as the “Vacation
Period”), then, during the Vacation Period, Tenant shall comply with
all terms and provisions of the Lease with respect to the Original Premises as
though 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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with
respect to the Original Premises during the Vacation Period.  Following the Vacation Period, to the extent
that Tenant has not vacated the Original Premises, then Tenant’s obligation for
payment of Base Rent or Additional Rent with respect to the Original Premises
shall 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 Letter
attached as Exhibit B hereto) in
the Substitution Space has been substantially completed; provided however, that
if Landlord shall be delayed in substantially completing the Landlord work in
the Substitution Space as a result of the occurrence of a Tenant Delay (defined
below), then, for purposes of determining the Substitution Effective Date, the
date of substantial completion shall be deemed to be the day that said Landlord
Work would have been substantially completed absent any such Tenant
Delay(s).  A “Tenant Delay” means any act or omission of Tenant or its
agents, employees, vendors or contractors that actually delays substantial
completion of the Landlord Work, including, without limitation, the following:


 


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


 


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


 


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


 


d.                                      The performance of work in the Substitution
Space by Tenant or Tenant’s contractor(s) during the performance of the
Landlord Work; or


 


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


 


The
Substitution Space shall be deemed to be substantially completed on the date
that Landlord reasonably determines that all Landlord Work has been performed
(or would have been performed absent any Tenant Delay[s]), other than any
details of construction, mechanical adjustment or any other matter, the
nonperformance of which does not materially interfere with Tenant’s use of the
Substitution Space. Landlord shall use reasonable efforts to notify Tenant
(which notice shall be given in writing or by email, confirmation of receipt
requested, to Tenant’s CFO), of any circumstances of which Landlord is aware
that have caused or may cause a Tenant Delay, so that Tenant may take whatever
action is appropriate to minimize or prevent such Tenant Delay. The adjustment
of the Substitution Effective Date and, accordingly, the postponement of
Tenant’s obligation to pay Rent on the Substitution Space shall be Tenant’s
sole remedy and shall constitute full settlement of all claims that Tenant
might otherwise have against Landlord by reason of the Substitution Space not
being ready for occupancy by Tenant on the Target Substitution Effective Date.
During any period that the Substitution Effective Date is postponed and
Tenant’s obligation to pay Rent for the Substitution Space is correspondingly
postponed, Tenant shall continue to be obligated to pay Rent for the Original
Premises in accordance with the terms of the Lease.  Landlord shall use reasonable efforts to provide Tenant with
advance notice (which shall be given in writing or by email, confirmation of
receipt requested, to Tenant’s CFO) of the estimated Substitution Effective
Date at least 1 week prior to such estimated Substitution Effective Date, but
Landlord’s failure to accurately estimate the Substitution Effective Date shall
in no manner affect the Substitution Effective Date or any other obligations of
Landlord or Tenant hereunder.  Upon final
determination of the Substitution Effective


 


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Date,
Landlord shall notify Tenant in writing (or by email, confirmation of receipt
requested, 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 and
liaise with Tenant with respect to the same and Tenant’s removal from the
Original Premises.  The name and contact
information of the initial Landlord Project Manager shall be set forth in Exhibit B attached hereto.  Such Project Manager shall communicate with
Tenant’s CFO unless and until Tenant designates, and so informs Landlord in
writing (or by email, confirmation of receipt requested, to Landlord’s Project
Manager), of a different Tenant contact.


 


2.02.                        In addition to the postponement, if any, of the Substitution Effective
Date 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 fails
to deliver possession of the Substitution Space for any other reason (other
than Tenant Delays), including, but not limited to, holding over by prior
occupants.  Any such delay in the
Substitution Effective Date shall not subject Landlord to any liability for any
loss or damage resulting therefrom.


 


2.03.                        Notwithstanding the foregoing, if the Substitution Effective Date has
not occurred on or before the Required Completion Date (defined below), Tenant,
as its sole remedy, may terminate this Amendment by giving Landlord written
notice of termination on or before the earlier to occur of:  (i) 5 Business Days after the Required
Completion Date; and (ii) the Substitution Effective Date.  In such event, this Amendment shall be
deemed null and void and of no further force and effect and Tenant shall
promptly refund any reduction in the Security Deposit (as provided in
Section 6 below) to Landlord, and, so long as Tenant has not previously
defaulted under any of its obligations under the Work Letter, the parties
hereto shall have no further responsibilities or obligations to each other with
respect to this Amendment, provided that Landlord and Tenant shall remain
liable for all obligations under the Lease with respect to the Original
Premises for the period through and including the Prior Termination Date. The “Required Completion Date” shall mean the
date which is 90 days after the later of the date this Amendment is properly
executed and delivered by Tenant, the date all prepaid rental, Security
Deposits and guaranties required under this Amendment are delivered to
Landlord, the date the building permit for the Landlord Work has been obtained,
and, if applicable, the date all contingencies, if any, specified in this
Amendment have been satisfied or waived in writing by Landlord.  Landlord and Tenant acknowledge and agree
that:  (i) the determination of the
Substitution Effective Date shall take into consideration the effect of any Tenant
Delays; and (ii) the Required Completion Date shall be postponed by the number
of days the Substitution Effective Date is delayed due to events of Force
Majeure (as defined in the Lease). 
Notwithstanding anything herein to the contrary, if Landlord determines
in good faith that it will be unable to cause the Substitution Effective Date
to occur by the Required Completion Date, Landlord shall have the right to
immediately cease its performance of the Landlord Work and provide Tenant with
written notice (the “Completion Date
Extension Notice”) of such inability, which Completion Date
Extension Notice shall set forth the date on which Landlord reasonably believes
that the Substitution Effective Date will occur.  Upon receipt of the Completion Date Extension Notice, Tenant
shall have the right to terminate this Amendment by providing written notice of
termination to Landlord within 5 Business Days after the date of the Completion
Date Extension Notice.  If Tenant does
not terminate this Amendment within such 5 Business Day period, the Required Completion
Date automatically shall be amended to be the date set forth in Landlord’s
Completion Date Extension Notice.


 


3.                                       Extension.  The
Term of the Lease is extended and shall terminate on the date (the “Extended Termination Date”) which is the
day 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 day
immediately following the Prior Termination Date (“Extension Date”) and ending on the Extended Termination Date
shall be referred to herein as the “Extended
Term”.


 


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4.                                       Base Rent.  As
of the Substitution Effective Date, the schedule of Base Rent payable with
respect to the Premises during the remainder of the current Term and the
Extended 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

  	
   

  



 


All
such Base Rent shall be payable by Tenant in accordance with the terms of the
Lease.


 


Landlord
and Tenant acknowledge that the actual Substitution Effective Date shall be set
forth in a confirmation letter to be prepared by Landlord.


 


5.                                       Substitution Payment.  On
or before the Substitution Effective Date, Tenant shall pay to Landlord an
amount (the “Substitution Payment”)
as a fee in connection with the relocation to the Substitution Space and not as
a penalty as follows:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6.                                       Security Deposit.  Upon
full execution of this Amendment by Landlord and Tenant, the amount of Tenant’s
Security Deposit obligation under Section VI of the Lease shall reduce
from $100,000.00 to $36,712.05. 
Accordingly, subsequent to the full execution of this Amendment by
Landlord and Tenant, Landlord shall return a portion of the Security Deposit to
Tenant in accordance with Section VI of the Lease so that the remaining
Security Deposit held by Landlord shall equal $36,712.50.


 


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


 


8.                                       Expenses and Taxes.  For
the period commencing with the Substitution Effective Date and ending on the
Extended Termination Date, Tenant shall pay for Tenant’s Pro Rata Share of
Expenses and Taxes applicable to


 


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


 


9.                                       Improvements to Substitution
Space.


 


9.01.                        Condition of Substitution Space. 
Tenant has inspected the Substitution Space and agrees to accept the
same “as is” without any agreements, representations, understandings or
obligations on the part of Landlord to perform any alterations, repairs or
improvements, 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 in
accordance with the Work Letter attached hereto as Exhibit B.


 


10.                                 Early Access to Substitution
Space. If Tenant is permitted to take possession of
the Substitution Space before the Substitution Effective Date, such possession
shall be subject to the terms and conditions of the Lease and this Amendment
and Tenant shall pay Base Rent and Additional Rent applicable to the
Substitution Space to Landlord for each day of possession prior to the
Substitution Effective Date.  However,
except for the cost of services requested by Tenant (e.g. freight elevator
usage), Tenant shall not be required to pay Rent for the Substitution Space for
any days of possession before the Substitution Effective Date during which
Tenant, with the approval of Landlord, is in possession of the Substitution
Space for the sole purpose of performing improvements or installing furniture,
equipment or other personal property. 
In connection therewith, and subject to the terms of this
Section 9, Landlord grants Tenant the right to enter the Substitution
Space, at Tenant’s sole risk, (i) following installation of the ceiling grid in
the Substitution Space, solely for the purpose of installing telecommunications
and data cabling in the Substitution Space, and (ii) following installation of
the carpeting in the Substitution Space, solely for the purpose of installing
equipment, furnishings and other personalty. 
Except for the cost of services requested by Tenant, Tenant shall not be
required to pay Rent for the Substitution Space for any days of possession of
the Substitution Space prior to the Substitution Effective Date during which
Tenant is permitted entry to the Substitution Space for the purposes described
in the immediately preceding sentence. 
Landlord may withdraw such permission to enter the Substitution Space
prior to the Substitution Effective Date at any time that Landlord reasonably
determines that such entry by Tenant is causing a dangerous situation for
Landlord, Tenant or their respective contractors or employees, or if Landlord
reasonably determines that such entry by Tenant is hampering or otherwise
preventing Landlord from proceeding with the completion of Landlord’s Work at
the earliest possible date.


 


11.                                 Holding Over.  If
Tenant continues to occupy the Original Premises after the Original Premises
Vacation Date (as defined in Section 1 above), occupancy of the Original
Premises subsequent to the Original Premises Vacation Date shall be that of a
tenancy at sufferance and in no event for month-to-month or year-to-year, but
Tenant shall, throughout the entire holdover period, be subject to all the terms
and provisions of Section XXV (Holding Over) of the Lease as qualified by
the 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 this
Amendment (unless different effective dates are specifically referenced in this
Section), 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 for
Landlord and Tenant as set forth in Article I.M. of the Lease are hereby
deleted 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 period
of 5 years commencing on the day following the Extended Termination Date of the
Extended Term and ending on the 5th anniversary of the Extended
Termination Date (the “Second Renewal Term”),
if:


 


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


 


2.                                       Tenant is not in default under the Lease
beyond any applicable cure periods at the time that Tenant delivers its Initial
Renewal Notice or at the time Tenant delivers its Binding Notice (as defined
below); and


 


3.                                       No part of the Premises is sublet (other than
pursuant 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 time
Tenant delivers its Binding Notice; and


 


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


 


B.                                     Terms Applicable to Premises During Second
Renewal Term.


 


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


 


2.                                       Tenant shall pay Additional Rent (i.e., Taxes
and Expenses) for the Premises during the Second Renewal Term in accordance
with Article IV of the Lease, and the manner and method in which Tenant
reimburses 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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some
of the factors considered in determining the Prevailing Market rate for the
Second 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 Premises
for the Second Renewal Term.  Tenant,
within 15 days after the date on which Landlord advises Tenant of the
applicable Base Rent rate for the Second Renewal Term, shall either (i) give
Landlord final binding written notice (“Binding
Notice”) of Tenant’s exercise of its Renewal Option, or (ii) if
Tenant disagrees with Landlord’s determination, provide Landlord with written
notice of rejection (the “Rejection Notice”).  If Tenant fails to provide Landlord with
either a Binding Notice or Rejection Notice within such 15 day period, Tenant’s
Renewal Option shall be null and void and of no further force and effect.  If Tenant provides Landlord with a Binding
Notice, Landlord and Tenant shall enter into the Second Renewal Amendment (as
defined below) upon the terms and conditions set forth herein.  If Tenant provides Landlord with a Rejection
Notice, Landlord and Tenant shall work together in good faith to agree upon the
Prevailing Market rate for the Premises during the Second Renewal Term.  When Landlord and Tenant have agreed upon
the Prevailing Market rate for the Premises, such agreement shall be reflected
in a written agreement between Landlord and Tenant, whether in a letter or otherwise,
and Landlord and Tenant shall enter into the Second Renewal Amendment in
accordance with the terms and conditions hereof.  Notwithstanding the foregoing, if Landlord and Tenant are unable
to agree upon the Prevailing Market rate for the Premises within 30 days after
the date Tenant provides Landlord with the Rejection Notice, Tenant’s Renewal
Option shall be deemed to be null and void and of no force and effect.


 


D.                                    Second Renewal Amendment.  If
Tenant is entitled to and properly exercises its Renewal Option, Landlord shall
prepare an amendment (the “Second Renewal
Amendment”) to reflect changes in the Base Rent, Term, Termination
Date and other terms which may be agreed upon by the parties.  The Second Renewal Amendment shall be sent
to Tenant within a reasonable time after Landlord’s receipt of the Binding
Notice or other written agreement by Landlord and Tenant regarding the
Prevailing Market rate, and Tenant shall execute and return the Second Renewal
Amendment to Landlord within 15 days after Tenant’s receipt of same, but, upon
final determination of the Prevailing Market rate applicable during the Second
Renewal Term as described herein, an otherwise valid exercise of the Renewal
Option shall be fully effective whether or not the Second Renewal Amendment is
executed.


 


E.                                      Definition of Prevailing Market.  For
purposes of this Renewal Option, “Prevailing
Market” shall mean the arms length fair market annual rental rate
per rentable square foot under renewal leases and amendments entered into on or
about the date on which the Prevailing Market is being determined hereunder for
space comparable to the Premises in the Building and office buildings
comparable to the Building in the Burlington, Massachusetts area.  The determination of Prevailing Market shall
take into account any material economic differences between the terms of the
Lease and this Amendment and any comparison lease or amendment, such as rent
abatements, construction costs and other concessions and the manner, if any, in
which the landlord under any such lease is reimbursed for operating expenses
and taxes.  The determination of
Prevailing Market shall also take into consideration any reasonably anticipated
changes in the Prevailing Market rate from the time such Prevailing Market rate
is being determined and the time such Prevailing Market rate will become
effective 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 its
entirety and replaced with the following:


 


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


 


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


 


“(1)
with respect to an assignee, the proposed assignee’s financial condition does
not meet the criteria Landlord uses to select Building tenants having similar
leasehold obligations, and with respect to a subtenant, the proposed subtenant
is not financially able to meet its sublease obligations, including its obligation
to pay rent under the sublease as they become due, such inability to be
reasonably determined by Landlord based on a review of such proposed
subtenant’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 Lease
shall be deleted in its entirety and replaced with the following:


 


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


 


12.04                     Contingency.  This Amendment is contingent
upon Landlord entering into a new lease, lease amendment or other written
agreement (the “New Agreement”)
with a third party tenant (the “New Tenant”)
for all of the Original Premises.  If
the New Agreement has not been executed by the New Tenant on or before
September 15, 2004, then either Landlord or Tenant can terminate this
Amendment by delivering written notice to the other on or before
September 27, 2004.  In the event
Landlord or Tenant provide such a notice to the other, this Amendment shall be
null and void and of no force or effect and the Lease shall continue in full
force and effect with respect to the Original Premises as if this Amendment had
not been executed.  Landlord shall
notify Tenant in writing (or by email, confirmation of receipt requested to
Tenant’s CFO) that the New Agreement has been executed promptly following
execution of the New Agreement by Landlord and New Tenant.


 


13.                                 Miscellaneous.


 


13.01.                  This
Amendment and the attached exhibits, which are hereby incorporated into and
made a part of this Amendment, set forth the entire agreement between the
parties with respect to the matters set forth herein.  There have been no additional oral or written representations or
agreements.  Under no circumstances
shall Tenant be entitled to any Rent abatement, improvement allowance,
leasehold improvements, or other work to the Substitution Space, or any similar
economic incentives that may have been provided Tenant in connection with
entering into the Lease, unless specifically set forth in this Amendment.
Tenant agrees that neither Tenant nor its agents or any other parties acting on
behalf of Tenant shall disclose any matters set forth in this Amendment or
disseminate or distribute any information concerning the terms, details or
conditions hereof to any person, firm or entity


 


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(other
than Tenant’s agents and professional consultants) without obtaining the
express written consent of Landlord.


 


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


 


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


 


13.04.                  Submission
of this Amendment by Landlord is not an offer to enter into this Amendment but
rather is a solicitation for such an offer by Tenant.  Landlord shall not be bound by this Amendment until Landlord has
executed and delivered the same to Tenant. 
The solicitation of offer represented by Tenant’s submission of this
Amendment shall automatically expire within 30 days of such submission if
Landlord has not countersigned this Amendment and delivered the same to Tenant
within such 30 day period.


 


13.05.                  The
capitalized terms used in this Amendment shall have the same definitions as set
forth in the Lease to the extent that such capitalized terms are defined
therein and not redefined in this Amendment.


 


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


 


13.07.                  Each
signatory of this Amendment represents hereby that he or she has the authority
to execute and deliver the same on behalf of the party hereto for which such
signatory is acting.


 


[SIGNATURES ARE ON FOLLOWING PAGE]


 


9

















 


IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment as of the day
and 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):

  	
   

  	
   

  	
   

  	
   

  
										



 


10

















 


EXHIBIT A


 


OUTLINE AND LOCATION OF SUBSTITUTION SPACE


 


11

















 


EXHIBIT B


 


WORK LETTER


 


This
Exhibit is attached to and made a part of the Amendment by and between MA-NEW ENGLAND EXECUTIVE PARK, L.L.C., a Delaware
limited 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.


 


As
used in this Work Letter, the “Premises”
shall be deemed to mean the Substitution Space, as defined in the attached
Amendment.


 


1.                                       Landlord shall perform improvements to the
Premises in accordance with the plans prepared by Denis J. Doyle, AIA, dated
April 21, 2004 (the “Plans”).  The improvements to be performed by Landlord
in accordance with the Plans are hereinafter referred to as the “Landlord Work.”  It is agreed that construction of the Landlord Work will be
completed at Landlord’s sole cost and expense (subject to the terms of
Section 2 below) using building standard methods, materials and
finishes.  Landlord shall enter into a direct
contract for the Landlord Work with a general contractor selected by
Landlord.  In addition, Landlord shall
have the right to select and/or approve of any subcontractors used in
connection with the Landlord Work.  Landlord’s
supervision or performance of any work for or on behalf of Tenant shall not be
deemed a representation by Landlord that such Plans or the revisions thereto
comply with applicable insurance requirements, building codes, ordinances, laws
or regulations, or that the improvements constructed in accordance with the
Plans and any revisions thereto will be adequate for Tenant’s use, it being
agreed that Tenant shall be responsible for all elements of the design of
Tenant’s plans (including, without limitation, compliance with law,
functionality of design, the structural integrity of the design, the
configuration of the premises and the placement of Tenant’s furniture,
appliances and equipment).


 


2.                                       If Tenant shall request any revisions to the
Plans, Landlord shall have such revisions prepared at Tenant’s sole cost and
expense and Tenant shall reimburse Landlord for the cost of preparing any such
revisions to the Plans, plus any applicable state sales or use tax thereon,
upon demand.  Promptly upon completion
of the revisions, Landlord shall notify Tenant in writing of the increased cost
in the Landlord Work, if any, resulting from such revisions to the Plans.  Tenant, within one Business Day, shall
notify Landlord in writing whether it desires to proceed with such revisions.  In the absence of such written
authorization, Landlord shall have the option to continue work on the Premises
disregarding the requested revision. 
Tenant shall be responsible for any Tenant Delay in completion of the
Premises resulting from any revision to the Plans.  If such revisions result in an increase in the cost of Landlord
Work, 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 the
Plans shall be subject to the approval of Landlord.


 


3.                                       This Exhibit shall not be deemed applicable
to 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 the
original Premises or any additions to the Premises in the event of a renewal or
extension of the original Term of the Lease, whether by any options under the
Lease or otherwise, unless expressly so provided in the Lease or any amendment
or supplement to the Lease.


 


Landlord
Project 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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