**Exhibit10.6**

 

**FIRST AMENDMENT TO LEASE**

 

**THIS FIRSTAMENDMENT TO LEASE** (“**First Amendment**”)is entered into as of this 4th day of January, 2008 (the **“Effective Date”**), by and between **HORSHAM PROPERTY ASSOCIATES, LP,**(“**Landlord**”) and **OPTIUM CORPORATION**(“**Tenant**”).

 

**Recitals**

 

# A.                                   200 PrecisionDrive Investors, LLC (**“Precision”**)and Tenant entered into that certain Lease dated September 29, 2006, asconfirmed in that certain letter agreement date September 29, 2006(collectively hereinafter the **“Lease”**),demising certain space consisting of approximately of sixty-three thousandseven hundred fifty-seven (63,757) rentable square feet (the **“Current Premises”**) in the building locatedat 200 Precision Drive, Horsham, Pennsylvania (the **“Building”**). Landlord is successor in interest to Precision.

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B.                                     Tenant nowdesires to expand the Current Premises by leasing from Landlord approximatelyseventeen thousand two hundred eighteen (17,218) rentable square feet of spacewithin the Building, (the **“Expansion Premises”**),and Landlord desires to lease to Tenant the Expansion Premises. The CurrentPremises and the Expansion Premises are collectively referred to herein as the **“New Premises”**. The New Premises willconsist of approximately eighty thousand nine hundred seventy-five (80,975)rentable square feet of space, as depicted on **Exhibit “A”**, attached hereto and made a part hereof.

 

# C.                                     Landlord andTenant now desire to amend the Lease to (i) increase the square footage ofthe Current Premises, (ii) provide for a revised rental amount, and (iii) recastand extend the Term of the Lease, all upon the terms and conditions ashereinafter set forth.

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**NOW,THEREFORE,** in consideration of the mutual covenants containedherein and other good and valuable consideration, the receipt and sufficiencyof which is acknowledged, the parties mutually covenant and agree as follows:

 

# 1.               **CapitalizedTerms; Effect****.** Capitalized terms used inthis First Amendment which are not specifically defined herein shall have themeanings given such terms in the Lease.

 

# 2.               **ExpansionPremises**. Effective as of the Expansion PremisesCommencement Date, defined below, Landlord hereby leases to Tenant, and Tenanthereby accepts from Landlord, the Expansion Premises to be used by Tenantsolely for the use set forth in the Lease. All terms and conditions of theLease (as amended hereby) shall apply to the lease of the Expansion Premisesexcept as specifically set forth herein.

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# 3.               **ExpansionPremises Term**. The Term of the Lease is hereby recast andextended for an additional period of five (5) years and three (3) months,commencing on the Expansion Premises Commencement Dateand ending on the date (the **“ExpirationDate”**) which is (i) the day immediately preceding the five (5) year,three (3) month anniversary of the Expansion Premises Commencement Date,if the Expansion Premises Commencement Date is the first day of a calendarmonth, or (ii) the last day of the calendar month in which the five (5) year,three (3) month anniversary of the Expansion Premises Commencement Dateoccurs, if the Expansion Premises Commencement Date is any day other than thefirst day of a calendar month (the **“Expansion Premises Term”**).

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# 4.               **ExpansionPremises Commencement Date**. The Expansion PremisesTerm shall commence on the earlier of (i) the date Tenant commencesoccupancy of all or any portion of Expansion Premises (including, withoutlimitation, occupancy for the purpose of installing Tenant’s furniture, cablingor equipment), and (ii) the Delivery Date, defined below (the **“Expansion Premises Commencement Date”**) .

 

 

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# **“DeliveryDate”** shall mean the date on which the Tenant Improvements are “SubstantiallyCompleted” pursuant to the terms of Paragraph 7 below. Following thedetermination of the Expansion Premises Commencement Date, and as a pre-conditionof Tenant’s occupancy of the Expansion Premises, Landlord and Tenant shallenter into a Commencement Date Memorandum in the form attached hereto as **Exhibit “B”** to this Leaseconfirming the Expansion Premises Commencement Date.

#  

# 5.               **MinimumAnnual Rent**.  Notwithstanding anything to the contrarycontained in the Lease, the Minimum Annual Rent payable by the Tenant duringthe Expansion Premises Term for the entire New Premises shall be as follows:

 
| **Lease  Year (in months)**                                          | ** ** | **Minimum  Annual Rent** | ** ** | **Monthly Rental  Installment** | ** ** | **Minimum Annual Rent/RSF** |
|----------------------------------------------------------------------|------------|--------------------------|------------|---------------------------------|------------|-----------------------------|
| *Expansion Premises  Commencement Date — December 31, 2008 |       | $                        | 769,262.50 |                            | $          | 64,105.21                   | ** | $9.50  NNN for New Premises |
| January 1, 2009 —  December 31, 2009                  |       | $                        | 809,750.00 |                            | $          | 67,479.17                   |   | $10.00  NNN for New Premises |
| January 1, 2010 —  December 31, 2010                  |       | $                        | 850,237.50 |                            | $          | 70,853.13                   |   | $10.50  NNN for New Premises |
| January 1, 2011 —  December 31, 2011                  |       | $                        | 890,725.00 |                            | $          | 74,227.08                   |   | $11.00  NNN for New Premises |
| January 1, 2012 —  Expiration Date                         |       | $                        | 931,212.50 |                            | $          | 77,601.04                   |   | $11.50  NNN for New Premises |
|                                                                      |            |                          |            |                                 |            |                             |  |  |  |  |

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*Until the Expansion Premises Commencement Date, Tenant shall continueto pay Minimum Annual Rent and all Additional Rent for the Current Premises inaccordance with the terms and conditions of the Lease. 

 

**For the first three (3) full calendar months, Tenant shallreceive a monthly credit towards its Monthly Rental Installment in the amountof $13,630.92. 

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# 6.               **Tenant’sProportionate Share**. During the Expansion Premises Term, Tenant’sProportionate Share shall be increased from 50.40% by 13.61%, being thatattributable to the Expansion Premises, to an aggregate of 64.01%.

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# 7.               **TenantImprovements**.

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(a)                                  Landlord shall,in a good and workmanlike manner, construct certain improvements (the **“Tenant Improvements”**) to the ExpansionPremises in accordance with the construction plan attached hereto as **Exhibit “C”** and the constructionstandards attached hereto as **Exhibit “C-1”**hereof (collectively, the **“Tenant’s Plans”**),reserving the right to: (a) make substitutions of material of equivalentgrade and quality when and if any specified material shall not be readily andreasonably available; and (b) make changes necessitated by conditions metduring the course of construction, provided that Tenant’s approval of anysubstantial change (and any reduction of cost incident thereto) shall first beobtained (which approval shall not be unreasonably withheld).

 

(b)                                 All changes inthe Tenant’s Plans shall be subject to the approval of Landlord. If Landlordapproves any change in the Tenant’s Plans, Landlord shall construct the TenantImprovements in accordance with such change, and Tenant shall pay any increasein the cost of constructing the Tenant Improvements resulting from such change.

 

 

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Any delay in the date of Substantial Completion (as hereinafter defined)by reason of any change in the Tenant’s Plans shall be deemed a TenantConstruction Delay under subparagraph (d) of this Section.

 

(c)                                  UponSubstantial Completion of the Tenant Improvements except for items described insubparagraph (d)(i) below, Landlord shall notify Tenant, and Tenant shallinspect the Expansion Premises with Landlord within three (3) businessdays after Tenant’s receipt of Landlord’s notice. Upon completion of theinspection to the reasonable satisfaction of Tenant in accordance with **Exhibits “C” and “C-1”**, it shall bepresumed that all work theretofore performed by or on behalf of Landlord wassatisfactorily performed in accordance with, and meeting the requirements ofthis Lease. The foregoing presumption shall not apply, however: (i) torequired work not actually completed by Landlord, which Landlord agrees itshall complete with reasonable speed and diligence and which is identified atthe time of the inspection on a list prepared by the constructionrepresentatives of Landlord and Tenant, or (ii) to latent defects in suchwork which could not reasonably have been discovered at the time of theinspection; provided Tenant notifies Landlord of such defects within ninety(90) days from the date of the inspection. Landlord will correct any defects ordeficiencies of which it is notified within the required period with reasonablespeed and diligence.

 

(d)                                 The TenantImprovements shall be deemed to be **“SubstantiallyCompleted”** when the following have occurred:

 

(i)                                     The work shownon the Tenant’s Plans has been completed except for the following:

 

a.                                       Anyimprovements or work to be performed by Tenant; and

 

b.                                      Minorpunch-list items or insubstantial details of construction, mechanicaladjustments, or finishing touches like plastering or painting, which itemsshall not adversely affect Tenant’s conduct of its ordinary business activitiesin the Expansion Premises; and

 

c.                                       Items not thencompleted because of:

 

1.                                        failure byTenant to promptly make changes in the Tenant’s Plans reasonably required byLandlord in connection with the approval thereof; or

 

2.                                        changes in theTenant’s Plans requested by Tenant; or

 

3.                                        the performance of any work or activity in the Expansion Premises by Tenantor any of its employees, agents or contractors.

 

 (each of the items listed in 1-3 above, shallbe referred to as **“Tenant Construction Delay”**)

 

(ii)                                  If required under the applicable code or ordinance of the municipality inwhich the Building is located, the municipality has approved the work completedas part of the Tenant Improvements, or would have approved the same but for adelay as described in subparagraph (d) above.

 

 

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(e)                                  The date determined in accordance with subparagraph (d) is hereincalled the date of **“Substantial Completion”**.In the event of any delay as described in subparagraph (d) above, Tenantacknowledges that the Commencement Date and Tenant’s obligations to pay renthereunder may begin before the Tenant Improvements have been completed.

 

# 8.               **Delay in Possession**. Landlordcurrently anticipates that the Expansion Premises Commencement Date hereunderwill occur on or about six (6) weeks after the Effective Date hereof (the **“Estimated Commencement Date”**). If theExpansion Premises Commencement Date has not occurred by the EstimatedCommencement Date because of the holding over or retention of possession of anytenant or occupant, or if any repairs, improvements or decoration of theExpansion Premises are not completed, or for any other reason, Landlord shallnot be subject to any liability to Tenant. Under such circumstances, the rentreserved and covenanted to be paid herein shall not commence until theExpansion Premises Commencement Date, and no such failure to deliver possessionshall in any other respect affect the validity of this First Amendment.

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# 9.               **Right of First Refusal**. Providedthat Tenant (i) has not been in monetary default more than twice duringthe Lease Term and (ii) is not in default under the terms of this Leasebeyond any applicable cure period at the time Tenant exercises its right offirst refusal, Tenant shall have a right of first refusal to lease thecontiguous space consisting of approximately forty-five thousand five hundredtwenty-five (45,525) rentable square feet located adjacent to the New Premises(the **“First Refusal Space”**) asdepicted on **Exhibit “D”**,attached hereto and made a part hereof, upon the following terms andconditions:

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(a)                                  In the event that Landlord receives or intends to send a written offer tolease all or any portion of the First Refusal Space (the “**First Refusal Offered Space**”) to any thirdparty on or before April 30, 2008, Landlord shall provide Tenant with acopy of said proposal (the “**Written Proposal**”),which Written Proposal shall set forth the terms and conditions (including,without limitation, the rental rate) upon which Landlord is willing to leasethe First Refusal Offered Space. The Minimum Annual Rent for the First RefusalOffered Space (the **“First Refusal Rent”**)shall be the lesser of (i) Nine and 50/100 Dollars ($9.50) per rentablesquare foot or (ii) the rental rate of the Written Proposal-; provided,that in no event shall the First Refusal Rent be greater than Eleven and 50/100Dollars ($11.50) per rentable square foot if Tenant accepts the terms of theWritten Proposal on or before April 30, 2008.

 

(b)                                 Notwithstanding the foregoing, if Tenant exercises the Right of FirstRefusal:

 

(i)                                     the First Refusal Rent shall be abated from the First Refusal CommencementDate (defined below) through April 30, 2009, and

 

(ii)                                  the term of the Lease for the First Refusal Additional Space (definedbelow) and the New Premisesshall be extended thereafter commencing on May 1, 2009 and continuinguntil April 30, 2015 (the **“First RefusalTerm”**) on the terms and conditions of subsection (d) below.

 

(c)                                  Within five (5) business days after Tenant’s receipt of the WrittenProposal, Tenant must give Landlord written notice pursuant to which Tenantshall elect either: (i) to lease the entire First Refusal Offered Space atthe First Refusal Rent and for the First Refusal Term, or (ii) to declineto lease the First Refusal Offered Space. If Tenant fails to elect clause (i) withinsuch five (5) business day period, then Tenant shall be deemed to havedeclined to lease the First Refusal Offered Space. In the event that Tenantdeclines (or is deemed to have declined) to lease the First Refusal OfferedSpace, then Landlord shall be free to lease the First Refusal Offered Space toany other party(ies) without any further obligation to Tenant hereunder;however, Tenant shall retain its first refusal rights hereunder with respect toany part of the First Refusal Space that was not: (i) covered by theWritten Proposal; or (ii) covered by any previous Written Proposal.

 

 

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(d)                                 If Tenant elects to lease the First Refusal Offered Space in accordancewith subparagraph (c) above (upon such election, the “**First Refusal Additional Space**”), thenLandlord and Tenant shall execute an amendment to the Lease to provide for theinclusion of the First Refusal Additional Space under the terms and conditionsset forth herein. All other terms and conditions of the Lease shall apply tothe First Refusal Additional Space except that: (i) Tenant’s ProportionateShare shall be increased to take into account the square footage of the FirstRefusal Additional Space and all other terms of the Lease affected by theaddition of such square footage shall be adjusted accordingly; (ii) Landlordshall not be required to perform any improvements to the First RefusalAdditional Space unless specifically provided for in the Written Proposal; and (iii) Tenantshall not be entitled to any allowances, credits, options or other concessionswith respect to the First Refusal Additional Space unless specifically providedfor in the Written Proposal; and (iv) the Minimum Annual Rent for theFirst Refusal Additional Space shall be increased by Fifty Cents ($0.50) perrentable square foot on each successive January 1st. Notwithstandingthe foregoing, in no event shall the Minimum Annual Rent (for either the NewPremises or the First Refusal Additional Space) exceed Eleven and 50/100Dollars ($11.50) per rentable square foot during the First Refusal Term.

 

(e)                                  The effective date of the addition of the First Refusal Additional Space tothe Premises shall be the date that Landlord delivers possession of the FirstRefusal Additional Space to Tenant in accordance with the terms of the WrittenProposal (the **“First Refusal CommencementDate”**).

 

(f)                                    Except as otherwise provided in the Written Proposal, Tenant agrees toaccept the First Refusal Additional Space in its **“AS IS”** condition, in the then current physical state andcondition thereof, without any representation or warranty by Landlord.

 

# 10.         **Notices**. All notices and rent payments to Landlord shall be sent to:

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HORSHAM PROPERTY ASSOCIATES,LP

c/o Endurance Real EstateGroup

One Bala Avenue, Suite 502

Bala Cynwyd, PA 19004

Attn:  Benjamin Cohen or William A. White

 

with a copy to:

 

Maury B. Reiter, Esquire

Kaplin Stewart MeloffReiter & Stein, P.C.

Union Meeting CorporateCenter

910 Harvest Drive

Blue Bell, PA 19422

 

# 11.         **Brokers**. Tenant represents and warrants to Landlord that Tenant has dealt with nobroker, agent or other intermediary in connection with this First Amendmentother than CB Richard Ellis (**“Landlord’sBroker”**) and Penn’s Grant (**“Tenant’sBroker”**), and that insofar as Tenant knows, no other broker, agentor other intermediary negotiated this First Amendment. Tenant agrees toindemnify, defend and hold Landlord and its partners, employees, agents, theirofficers and partners, harmless from and against any claims made by any broker,agent or other intermediary other than Landlord’s Broker or Tenant’s Broker,with respect to a claim for broker’s commission or fee or similar compensationbrought by any person in connection with this First Amendment, provided thatLandlord has not in fact retained such broker, agent or other intermediary. Landlordagrees to pay all commissions payable to Landlord’s Broker and Tenant’s Brokerpursuant to separate agreements between Landlord and Landlord’s Broker andLandlord and Tenant’s Broker.

 

 

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# 12.         **Reaffirmationof Warrant of Attorney**. Tenanthereby ratifies, confirms and reaffirms in all respects and without condition,the right of Landlord to **CONFESS JUDGMENT**against Tenant in accordance with the terms of the Lease.

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# 13.         **Counterparts****.** This First Amendment maybe executed in one or more counterparts, each of which shall be deemed anoriginal hereof, but all of which shall constitute one and the same FirstAmendment.

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# 14.         **Confirmationof Lease****.** Except as otherwise set forth in this First Amendment, the Lease shallremain in full force and effect in accordance with its original terms and bebinding on Landlord and Tenant, their respective heirs, executors,administrators, successors and assigns.

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**[Signatures on next page]**

 

 

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**IN WITNESS WHEREOF,** the parties hereto haveexecuted this First Amendment as of the day and year first above written.

 
|                        | **LANDLORD:**                        |                                                           |
|-----------------------------|--------------------------------------|----------------------------------------------------------------|
|                        |                                 |                                                           |
|                        | **HORSHAM PROPERTY ASSOCIATES, LP,** |                                                           |
|                        | a Pennsylvania limited partnership   |                                                           |
|                        |                                 |                                                           |
|                        | By:                                  |                                                           |
|                        |                                 |                                                           |
| Witness:                    |  /s/  Illegible                 |                                                           |   | By: |  /s/ William A. White |   |
|                        | Name:                                | William A. White                                               |   |   |
|                        | Title:                               | Managing Member of the General Partner of the  General Partner |   |   |
|                        |                                 |                                                           |
|                        | **TENANT:**                          |                                                           |
|                        |                                 |                                                           |
|                        | **OPTIUM  CORPORATION,**             |                                                           |
|                        | a Delaware corporation               |                                                           |
|                        |                                 |                                                           |
| Witness:                    |                                 |                                                           |   |   |
|  /s/ Christopher Brown |                                 |                                                           | By: |  /s/ David Renner |   |   |   |
|                        | Name:                                | David Renner                                                   |   |   |   |
|                        | Title:                               | Chief Financial Officer                                        |   |   |   |
|                             |                                      |                                                                |  |  |  |  |  |  |  |  |  |  |

 

 

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