THIRD AMENDMENT TO LEASE
Exhibit 10.16
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT is made as of this 6 day of August, 2005,
by and between Whitewater Properties I, LLC, a Minnesota
limited liability company (“Lessor”) and Delphax
Technologies Inc., formerly known as Check Technology
Corporation, a Minnesota corporation (“Lessee”).
Preliminary Statement of Facts
On October 14, 1994, Lessor and Lessee executed a Lease
Agreement, which Lease Agreement was amended by the First
Amendment thereto dated April 17, 1995, and the Second
Amendment thereto dated April 1, 1996 (collectively, the
“Lease”).
The parties desire to amend the Lease to confirm the
Commencement Date of the Lease and to provide for Lessee’s
early termination of the Lease.
NOW, THEREFORE, in consideration of One Dollar ($1.00)
and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by Lessor and in
further consideration of the terms and conditions of this Third
Amendment, the parties hereto hereby agree as follows:
1. Defined Terms and Ratification. All of the
defined terms used herein shall have the meanings assigned to
such defined terms in the Lease, unless specifically provided
for to the contrary herein. Except as modified herein, all of
the terms and conditions of the Lease remain unchanged and in
full force and effect are hereby ratified by the parties hereto
as of the date hereof.
2. Commencement Date. Article V of the Lease is
amended to confirm that the Commencement Date of the Lease was
September 30, 1995.
3. Notice of Termination. Lessor acknowledges that
Lessee timely delivered its notice of election to terminate the
Lease (the “Termination Notice”) in the manner
required by Article VII(A) of the Lease.
4. Extension of Lease Term. Notwithstanding the
delivery of the Termination Notice, Lessor and Lessee agree to
extend the Term of the Lease from October 1, 2005, through
and including February 28, 2006 (the “Extension
Term”). In addition to the foregoing, (i) Lessee may,
by written notice delivered to Lessor on or before
December 1, 2005, elect to extend the Extension Term
through and including March 31, 2006 (the “First
Additional Period”) and (ii) if Lessee has timely
elected the First Additional Period and is not as of the date of
its written notice in default beyond any applicable cure period,
Lessee may, by written notice delivered to Lessor on or before
January 1, 2006, elect to extend the Extension Term through
and including April 30, 2006 (the “Second Additional
Period”). All of the terms and conditions of this Lease
(including provisions regarding Additional Rent) shall govern
the Extension Term and the Additional Periods (if elected by
Lessee) except that Base Rent for each month of the Extension
Term and the First Additional Period (if elected by Lessee)
shall be $27,887.50, and Base Rent for the Second Additional
Period (if elected by Lessee) shall be $27,187.50.
5. Lease Termination Payment Deleted.
Article VII(B) is deleted in its entirety.
6. Lease Extension Fee. In consideration of the
Extension Term and Lessee’s right to elect the Additional
Period, Lessee shall pay to Lessor a lease extension fee (the
“Lease Extension Fee”) in the amount of $100,000.00
payable in four equal installments of $25,000.00 each, payable
on the first day of October, November, and December, 2005 and
January, 2006. Failure to make payment of any installment when
due shall constitute a default under this Lease, entitling
Lessor to exercise any and all rights and remedies available to
it thereunder or under applicable law.
7. Counterparts. This instrument may be executed in
multiple counterparts which, when taken together, shall
constitute a single instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment as of the date first shown above.
[THE REMAINDER OF THIS PAGE IS BLANK, SIGNATURE PAGES TO FOLLOW]
[Signature Page of Lessor]
| WHITEWATER PROPERTIES I, LLC |
| By: | /s/ Xxxxxx X. Xxxxxx |
|
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| Its: | Chief Manager |
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[Signature Page of Lessee]
| DELPHAX TECHNOLOGIES INC. |
| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
|
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| Its: | Vice President and CFO |
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