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WAIVER AND AMENDMENT TO LEASE

Waiver Agreement

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This Waiver Agreement involves

MEDIA SCIENCES INTERNATIONAL INC | MEDIA SCIENCES, INC | PNC EQUIPMENT FINANCE, LLC | PNC Leasing, LLC

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Title: WAIVER AND AMENDMENT TO LEASE
Date: 9/25/2008
Industry: CHMMFG     Sector: BASICM

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EXHIBIT 10.12

 

Waiver and Amendment to Lease

[logo of PNC EQUIPMENT FINANCE]

 

THIS WAIVER AND AMENDMENT TO LEASE (this “Amendment” ) is made as of February 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 and to waive certain defaults thereunder, 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 and certain defaults under the Lease are waived, 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 ofthis 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 oflaws 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 Exhibit A shall not be affected by this Amendment. Except as expressly provided herein, this Amendment shall not constitute an amendment, waiver, consent or release with respect to any provision of the Lease, a waiver of any default or Event of Default thereunder, or a waiver or release of any of the Lessor’s rights and remedies (all of which are hereby reserved). The Lessee expressly ratifies and confirms the waiver ofjury trial provisions contained in the Lease.

 

 


 

 

WITNESS the due execution of this Amendment as a document under seal, as of the date first written above.

 

WITNESS / ATTEST:

 

MEDIA SCIENCES, INC.

 

 

 

/s/ K. D. Bloomgren

 

By: /s/ Michael W. Levin

(SEAL)

Print Name: K. D. Bloomgren

 

Print Name: Michael W. Levin

Title


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