EXHIBIT 10.13
Amendment to Lease
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THIS AMENDMENT TO LEASE (this "Amendment" ) is made as of May 13,
2008, by and between MEDIA SCIENCES, INC. (the
"Lessee" ) and PNC EQUIPMENT FINANCE, LLC, formerly
known as PNC Leasing, LLC (the "Lessor" ).
RECITALS:
The Lessee and the Lessor are
parties to the equipment lease(s), equipment schedule(s) and other
agreements, supplements and documents identified on Exhibit A
attached hereto and made a part hereof, under which the Lessor has
leased certain equipment to the Lessee (the "Lease" ). The
Lessee and the Lessor desire to amend the Lease as provided for in
this Amendment.
NOW, THEREFORE,
in consideration of the mutual
covenants herein contained and intending to be legally bound
hereby, the parties hereto agree as follows:
1. The Lease is amended as set forth
in Exhibit A. Any and all references to the Lease in any document
delivered in connection with the Lease shall be deemed to refer to
the Lease as amended by this Amendment. This Amendment is deemed
incorporated into the Lease. Any initially capitalized terms used
in this Amendment without definition shall have the meanings
assigned to those terms in the Lease. To the extent that any term
or provision of this Amendment is or may be deemed expressly
inconsistent with any term or provision in the Lease, the terms and
provisions of this Amendment shall control.
2. The Lessee hereby certifies that:
(a) all of its representations and warranties in the Lease, as
amended by this Amendment, are, except as may otherwise be stated
in this Amendment: (i) true and correct as of the date of this
Amendment, (ii) ratified and confirmed without condition as if made
anew, and (iii) incorporated into this Amendment by reference, (b)
no Event of Default or event which, with the passage of time or the
giving of notice or both, would constitute an Event of Default,
exists under the Lease which will not be cured by the execution and
effectiveness of this Amendment, (c) no consent, approval, order or
authorization of, or registration or filing with, any third party
is required in connection with the execution, delivery and carrying
out of this Amendment or, if required, has been obtained, and (d)
this Amendment has been duly authorized, executed and delivered so
that it constitutes the legal, valid and binding obligation of the
Lessee, enforceable in accordance with its terms. The Lessee
confirms that all provisions of the Lease remain outstanding
without defense, set off, counterclaim, discount or charge of any
kind as of the date of this Amendment.
3. As a condition precedent to the
effectiveness of this Amendment, the Lessee shall comply with the
terms and conditions (if any) specified in Exhibit A.
4. This Amendment may be signed in
any number of counterpart copies and by the parties to this
Amendment on separate counterparts, but all such copies shall
constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Amendment by facsimile
transmission shall be effective as delivery of a manually executed
counterpart. Any party so executing this Amendment by facsimile
transmission shall promptly deliver a manually executed
counterpart, provided that any failure to do so shall not affect
the validity of the counterpart executed by facsimile
transmission.
5. This Amendment will be binding
upon and inure to the benefit of the Lessee and the Lessor and
their respective heirs, executors, administrators, successors and
assigns.
6. This Amendment has been delivered
to and accepted by the Lessor and will be deemed to be made in the
State where the Lessor's office indicated in the Lease is located.
This Amendment will be interpreted and the rights and liabilities
of the parties hereto determined in accordance with the laws of the
State where the Lessor's office indicated in the Lease is located,
excluding its conflict of laws rules.
7. Except as amended hereby, the
terms and provisions of the Lease remain unchanged, are and shall
remain in full force and effect unless and until modified or
amended in writing in accordance with their terms, and are hereby
ratified and confirmed. Specifically, any equipment schedule to the
lease between the Lessor and the Lessee that is not listed on
Exh
