Exhibit
10.6


 


FIRST AMENDMENT TO LEASE


 


THIS FIRST
AMENDMENT 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 Precision
Drive Investors, LLC (“Precision”)
and Tenant entered into that certain Lease dated September 29, 2006, as
confirmed in that certain letter agreement date September 29, 2006
(collectively hereinafter the “Lease”),
demising certain space consisting of approximately of sixty-three thousand
seven hundred fifty-seven (63,757) rentable square feet (the “Current Premises”) in the building located
at 200 Precision Drive, Horsham, Pennsylvania (the “Building”). Landlord is successor in interest to Precision.


 


B.                                     Tenant now
desires to expand the Current Premises by leasing from Landlord approximately
seventeen thousand two hundred eighteen (17,218) rentable square feet of space
within the Building, (the “Expansion Premises”),
and Landlord desires to lease to Tenant the Expansion Premises. The Current
Premises and the Expansion Premises are collectively referred to herein as the “New Premises”. The New Premises will
consist 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 and
Tenant now desire to amend the Lease to (i) increase the square footage of
the Current Premises, (ii) provide for a revised rental amount, and (iii) recast
and extend the Term of the Lease, all upon the terms and conditions as
hereinafter set forth.


 


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


 


1.               Capitalized
Terms; Effect. Capitalized terms used in
this First Amendment which are not specifically defined herein shall have the
meanings given such terms in the Lease.


 


2.               Expansion
Premises. Effective as of the Expansion Premises
Commencement Date, defined below, Landlord hereby leases to Tenant, and Tenant
hereby accepts from Landlord, the Expansion Premises to be used by Tenant
solely for the use set forth in the Lease. All terms and conditions of the
Lease (as amended hereby) shall apply to the lease of the Expansion Premises
except as specifically set forth herein.


 


3.               Expansion
Premises Term. The Term of the Lease is hereby recast and
extended for an additional period of five (5) years and three (3) months,
commencing on the Expansion Premises Commencement Date  and ending on the date (the “Expiration
Date”) 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 calendar
month, or (ii) the last day of the calendar month in which the five (5) year,
three (3) month anniversary of the Expansion Premises Commencement Date
occurs, if the Expansion Premises Commencement Date is any day other than the
first day of a calendar month (the “Expansion Premises Term”).


 


4.               Expansion
Premises Commencement Date. The Expansion Premises
Term shall commence on the earlier of (i) the date Tenant commences
occupancy of all or any portion of Expansion Premises (including, without
limitation, occupancy for the purpose of installing Tenant’s furniture, cabling
or equipment), and (ii) the Delivery Date, defined below (the “Expansion Premises Commencement Date”) .


 


 

















 


“Delivery
Date” shall mean the date on which the Tenant Improvements are “Substantially
Completed” pursuant to the terms of Paragraph 7 below. Following the
determination of the Expansion Premises Commencement Date, and as a pre-condition
of Tenant’s occupancy of the Expansion Premises, Landlord and Tenant shall
enter into a Commencement Date Memorandum in the form attached hereto as Exhibit “B” to this Lease
confirming the Expansion Premises Commencement Date.


 


5.               Minimum
Annual Rent.  Notwithstanding anything to the contrary
contained in the Lease, the Minimum Annual Rent payable by the Tenant during
the 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

  
											







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


 


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


 


6.               Tenant’s
Proportionate Share. During the Expansion Premises Term, Tenant’s
Proportionate Share shall be increased from 50.40% by 13.61%, being that
attributable to the Expansion Premises, to an aggregate of 64.01%.


 


7.               Tenant
Improvements.


 


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


 


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


 


 

















 


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 Tenant
Construction Delay under subparagraph (d) of this Section.


 


(c)                                  Upon
Substantial Completion of the Tenant Improvements except for items described in
subparagraph (d)(i) below, Landlord shall notify Tenant, and Tenant shall
inspect the Expansion Premises with Landlord within three (3) business
days after Tenant’s receipt of Landlord’s notice. Upon completion of the
inspection to the reasonable satisfaction of Tenant in accordance with Exhibits “C” and “C-1”, it shall be
presumed that all work theretofore performed by or on behalf of Landlord was
satisfactorily performed in accordance with, and meeting the requirements of
this Lease. The foregoing presumption shall not apply, however: (i) to
required work not actually completed by Landlord, which Landlord agrees it
shall complete with reasonable speed and diligence and which is identified at
the time of the inspection on a list prepared by the construction
representatives of Landlord and Tenant, or (ii) to latent defects in such
work which could not reasonably have been discovered at the time of the
inspection; provided Tenant notifies Landlord of such defects within ninety
(90) days from the date of the inspection. Landlord will correct any defects or
deficiencies of which it is notified within the required period with reasonable
speed and diligence.


 


(d)                                 The Tenant
Improvements shall be deemed to be “Substantially
Completed” when the following have occurred:


 


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


 


a.                                       Any
improvements or work to be performed by Tenant; and


 


b.                                      Minor
punch-list items or insubstantial details of construction, mechanical
adjustments, or finishing touches like plastering or painting, which items
shall not adversely affect Tenant’s conduct of its ordinary business activities
in the Expansion Premises; and


 


c.                                       Items not then
completed because of:


 


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


 


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


 


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


 


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


 


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


 


 

















 


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


 


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


 


9.               Right of First Refusal. Provided
that Tenant (i) has not been in monetary default more than twice during
the Lease Term and (ii) is not in default under the terms of this Lease
beyond any applicable cure period at the time Tenant exercises its right of
first refusal, Tenant shall have a right of first refusal to lease the
contiguous space consisting of approximately forty-five thousand five hundred
twenty-five (45,525) rentable square feet located adjacent to the New Premises
(the “First Refusal Space”) as
depicted on Exhibit “D”,
attached hereto and made a part hereof, upon the following terms and
conditions:


 


(a)                                  In the event that Landlord receives or intends to send a written offer to
lease all or any portion of the First Refusal Space (the “First Refusal Offered Space”) to any third
party on or before April 30, 2008, Landlord shall provide Tenant with a
copy 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 lease
the First Refusal Offered Space. The Minimum Annual Rent for the First Refusal
Offered Space (the “First Refusal Rent”)
shall be the lesser of (i) Nine and 50/100 Dollars ($9.50) per rentable
square 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 50/100
Dollars ($11.50) per rentable square foot if Tenant accepts the terms of the
Written Proposal on or before April 30, 2008.


 


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


 


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


 


(ii)                                  the term of the Lease for the First Refusal Additional Space (defined
below) and the New Premises
shall be extended thereafter commencing on May 1, 2009 and continuing
until April 30, 2015 (the “First Refusal
Term”) on the terms and conditions of subsection (d) below.


 


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


 


 

















 


(d)                                 If Tenant elects to lease the First Refusal Offered Space in accordance
with subparagraph (c) above (upon such election, the “First Refusal Additional Space”), then
Landlord and Tenant shall execute an amendment to the Lease to provide for the
inclusion of the First Refusal Additional Space under the terms and conditions
set forth herein. All other terms and conditions of the Lease shall apply to
the First Refusal Additional Space except that: (i) Tenant’s Proportionate
Share shall be increased to take into account the square footage of the First
Refusal Additional Space and all other terms of the Lease affected by the
addition of such square footage shall be adjusted accordingly; (ii) Landlord
shall not be required to perform any improvements to the First Refusal
Additional Space unless specifically provided for in the Written Proposal; and (iii) Tenant
shall not be entitled to any allowances, credits, options or other concessions
with respect to the First Refusal Additional Space unless specifically provided
for in the Written Proposal; and (iv) the Minimum Annual Rent for the
First Refusal Additional Space shall be increased by Fifty Cents ($0.50) per
rentable square foot on each successive January 1st. Notwithstanding
the foregoing, in no event shall the Minimum Annual Rent (for either the New
Premises or the First Refusal Additional Space) exceed Eleven and 50/100
Dollars ($11.50) per rentable square foot during the First Refusal Term.


 


(e)                                  The effective date of the addition of the First Refusal Additional Space to
the Premises shall be the date that Landlord delivers possession of the First
Refusal Additional Space to Tenant in accordance with the terms of the Written
Proposal (the “First Refusal Commencement
Date”).


 


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


 


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


 


HORSHAM PROPERTY ASSOCIATES,
LP


c/o Endurance Real Estate
Group


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 Meloff
Reiter & Stein, P.C.


Union Meeting Corporate
Center


910 Harvest Drive


Blue Bell, PA 19422


 


11.         Brokers. Tenant represents and warrants to Landlord that Tenant has dealt with no
broker, agent or other intermediary in connection with this First Amendment
other than CB Richard Ellis (“Landlord’s
Broker”) and Penn’s Grant (“Tenant’s
Broker”), and that insofar as Tenant knows, no other broker, agent
or other intermediary negotiated this First Amendment. Tenant agrees to
indemnify, defend and hold Landlord and its partners, employees, agents, their
officers 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 compensation
brought by any person in connection with this First Amendment, provided that
Landlord has not in fact retained such broker, agent or other intermediary. Landlord
agrees to pay all commissions payable to Landlord’s Broker and Tenant’s Broker
pursuant to separate agreements between Landlord and Landlord’s Broker and
Landlord and Tenant’s Broker.


 


 

















 


12.         Reaffirmation
of Warrant of Attorney. Tenant
hereby 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.


 


13.         Counterparts. This First Amendment may
be executed in one or more counterparts, each of which shall be deemed an
original hereof, but all of which shall constitute one and the same First
Amendment.


 


14.         Confirmation
of Lease. Except as otherwise set forth in this First Amendment, the Lease shall
remain in full force and effect in accordance with its original terms and be
binding on Landlord and Tenant, their respective heirs, executors,
administrators, successors and assigns.


 


[Signatures on next page]


 


 

















 


IN WITNESS WHEREOF, the parties hereto have
executed 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