(Master Lease Agreement) — In re Vyaire Medical, Inc., et al.

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EXHIBIT A
(Master Lease Agreement)
Case 24-11217-BLS    Doc 310-1    Filed 07/24/24    Page 1 of 51

EWALD FLEET SOLUTIONS, LLC
VEHICLE LEASE AGREEMENT
Open End
Master Lease No.: 19-17941
LESSOR: EWALD FLEET SOLUTIONS, LLC
1720 Paramount Drive
LESSEE: VYAIRE MEDICAL, INC
26125 North Riverwoods Blvd
Mettawa, IL 60045
Waukesha, WI 53186
1.
LEASED VEHICLE(S), RENT PAYMENT AND TERM
a.
In consideration of the rent and conditions herein required to be paid and performed by Lessee, Lessor
hereby leases to Lessee the vehicle(s) and installed equipment described and set forth in any Vehicle Lease Agreement -
Schedule A which may now or from and at any time hereafter be signed by Lessor and Lessee, which Schedule(s) (including
their terms and conditions) are hereby expressly incorporated by reference and made a part hereof in the same manner and
with the same legal effect as though they had been executed and attached hereto contemporaneously with the execution of this
Agreement. The terms "Vehicle", "Vehicle(s)" or "Vehicles" when used in this Agreement shall mean a motor vehicle or vehicles
leased hereunder by Lessee.
b.
For each Vehicle, Lessee agrees to pay the total monthly rent set forth on the applicable Schedule A in
advance without deduction, setoff or counterclaim, on the first day of each month during the term of this Lease. If the delivery
date for a Vehicle is other than the first or the last day of a month, the monthly rent for that Vehicle shall be prorated for that
month and the term of this Lease for said Vehicle shall commence on the first day of the following month.
c.
The term of this Agreement with respect to each Vehicle shall be as specified in the Schedule A for the
Vehicle and shall commence on the delivery date of the Vehicle or, in the event delivery is not made on the first day of a month,
the term shall commence on the first day of the month following the month in which delivery is made to Lessee. Lessor is
hereby authorized to insert the delivery date and the Vehicle identification number in the spaces provided on Schedule A for
each Vehicle.
d.
This Agreement is one of leasing only, and Lessee shall not have or acquire any right, title, or interest in or
to any Vehicle except the right to use or operate it as provided herein. Lessee has no option to purchase any Vehicle.
e.
If Lessee fails to return a Vehicle to Lessor at the expiration of its lease term, or any renewal term, then this
Lease shall automatically be renewed and extended with respect to such Vehicle for one year at the stated rent and upon all of
the other terms and conditions of this Lease.
f.
If Lessee does not pay in full any rent or other charge due hereunder on or before its due date, Lessee shall
pay Lessor a delinquency charge of 1 ½ percent of the delinquent amount per month until the delinquency is paid in full.
2.
MAINTENANCE AND REPAIRS
a.
Lessee shall keep and maintain the Vehicle(s) in good operating condition and working order, using as a
guide the maintenance program prescribed in the Owner's Manual, and shall perform all preventive maintenance required to
insure full validation of the manufacturer's warranty. Lessee will pay for all maintenance not covered by the manufacturer's
warranty. Failure to do so shall, at Lessor's option, result either in a default by Lessee under the provisions of Section 6 hereof,
or a claim for indemnity, at any time, as provided in Section 8.
b.
Lessee shall be responsible for the cost of all gasoline, oil, and all washing, polishing, and storage, to the
extent necessary to maintain the Vehicle(s) in good operating condition and repair. Lessee shall maintain proper oil, battery and
cooling levels and protection against freezing of radiator(s) and engine(s).
c.
LESSOR MAKES NO REPRESENTATIONS, PROMISES, STATEMENTS, OR WARRANTIES, EXPRESS
OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OF THE VEHICLE(S), OR OTHERWISE. Lessee agrees that Lessor shall not be liable to lessee for any loss,
claim, demand, liability, cost, damage or expense of any kind caused or alleged to be caused, directly or indirectly, by
the Vehicle(s), or by any inadequacy thereof for any purpose, or by any defects therein or in the use or maintenance
thereof, or by any repairs, servicing, or adjustments thereto, or by any delays in providing of, or any loss of business
or any damage whatsoever or howsoever caused.
Lessee agrees that its obligations hereunder to pay the rent
provided herein shall not be affected in any way by any defect or failure of performance, and in no event shall Lessor
be liable for any incidental or consequential damages.
REV. 0113
Vehicle Lease Agreement
Page 1 of 4
Initials ____ _
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3.
INSURANCE
a.
Insurance shall be procured for the Vehicle(s) by Lessee and shall be maintained during the term of this
Lease. It must include for each Vehicle automobile liability insurance with minimum limits for bodily injury or death of $500,000
for any one person and $1,000,000 for any one accident and $100,000 for property damage, or $1,000,000 combined single
limit. Lessee is self-insured for comprehensive, fire, theft, and collision coverage. Lessor shall be named as an insured on all
insurance policies covering the Vehicle(s) and all such insurance policies shall be endorsed to protect Lessee, Lessor and any
other person having an interest in the Vehicle(s), as their interests may appear. Any insurance policy carried by Lessee
covering the Vehicle(s) shall afford primary coverage, and any insurance policy or policies carried by Lessor to protect its own
interests shall provide only coverage secondary thereto unless such insurance was procured by Lessor for the specific purpose
of affording primary coverage with respect to the Vehicle(s).
b.
Prior to delivery of each Vehicle, Lessee shall provide Lessor with adequate proof of insurance in the
manner required by Lessor. Lessor shall be under no duty to examine certificates furnished by Lessee or to advise Lessee in
the event the insurance furnished by Lessee is not in compliance with this Agreement.
c.
Lessee or insurer will provide Lessor 30 days prior written notice in the event the insurance should be
materially altered or cancelled, and Lessor may (but shall not be obligated to) secure necessary insurance protection at
Lessee's expense.
d.
Lessee, Lessor, and their agents and employees shall comply with all the terms and conditions of said
insurance, including the immediate reporting of all accidents to Lessor and the insurer, and doing all things necessary or proper
to protect or preserve the other party's rights as a named insured in said insurance policies.
4.
TAXES, LICENSING, REGISTRATION
Lessee shall pay the cost of all licensing and registration of the Vehicle(s) in Lessor's name, and any renewals
thereof. Lessee shall pay all other taxes and governmental assessments, fees and charges imposed on or in connection with
the Vehicle(s), including personal property taxes and any applicable sales or use tax. Lessor shall pay and bear all income
taxes on the rent payable hereunder.
5.
DELIVERY AND RETURN OF VEHICLE(S)
Delivery and return of the Vehicle(s) shall be at Lessor's place of business. Lessee agrees to return each Vehicle at
the end of its lease term, or any extension thereof, or upon earlier termination of this Lease, in the same condition as when
delivered, ordinary wear and tear accepted, and to pay as additional rent Lessor's cost of repairing or replacing any damage to a
Vehicle not included in ordinary wear and tear. Damage and repairs not considered ordinary wear and tear shall include, but
not be limited to, nicks, dents, tears, burns or discoloration in the upholstery, cracked glass, dented bumpers, engine or
transmission damage, faulty or incomplete body repairs, and other damage which reduces a Vehicle's value. Lessee shall be
liable to Lessor for any reduction in a Vehicle's value due to any of the foregoing conditions or items. Lessee and Lessor, or
their agents, shall inspect each returned Vehicle and provide a jointly signed report on the condition of the Vehicle. Upon
termination of this Lease with respect to a Vehicle, Lessee shall provide Lessor with an accurate written odometer statement for
the Vehicle. Lessee shall be subject to fine or imprisonment for failing to complete the disclosure or for making a false
statement.
6.
DEFAULT AND EARLY TERMINATION
a.
With respect to each Vehicle, Lessee may not terminate this Agreement prior to the expiration of the term
hereof for said Vehicle without Lessor's express written consent. If this Agreement is terminated with respect to one or more
Vehicles prior to the expiration of the stated lease term(s) for such Vehicle(s) for any reason, or if Lessee fails to pay in full when
due any rent due hereunder, or defaults in the performance of any of the other terms, conditions or covenants contained herein,
or if Lessee dies, ceases to exist, or becomes the subject of any bankruptcy, insolvency or receivership proceedings, or if any
Vehicle is levied upon or encumbered by Lessee in any way, or if Lessor's rights in any Vehicle are prejudiced in any way, or if
Lessor in good faith deems itself insecure, or if any guarantor of Lessee's obligations hereunder becomes the subject of any
bankruptcy, insolvency, or receivership proceeding, then, in the case of any such event or events, Lessor shall have the right to
take immediate possession of all of the Vehicles, wherever found, with or without process of law, and Lessee expressly
authorizes Lessor and its agents to enter on any premises where the Vehicles may be found for the purpose of repossessing the
Vehicles and expressly waives any further interest in the Vehicles and any right of action arising out of such entry and
repossession. Upon repossession of the Vehicle(s) by Lessor, Lessee's right to possession and use of the Vehicle(s) shall
terminate, but such repossession shall not constitute termination of this Agreement as to the Vehicle(s) unless Lessor expressly
so notifies Lessee in writing.
b.
Upon the occurrence of one or more of the events described in subparagraph 6(a), above, Lessor, in
addition to any other remedies then available, shall have the right to recover from Lessee the following (the "Termination Value")
with respect to each Vehicle returned to or recovered by Lessor: (i) the total of the unpaid monthly rent payments required under
this Agreement, discounted to present value as of the date of early termination or default hereunder, utilizing as the discount
factor the prime interest rate quoted on the delivery date for such Vehicle by BMO Harris Bank, N.A., or its successor, plus (ii)
REV. 0113
Vehicle Lease Agreement
Page 2 of 4
Initials ____ _
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the Estimated Residual Value as shown on the applicable Schedule A for the Vehicle, plus (iii) any collision damage, or
damages for excess wear or use and other charges provided for in this Agreement, plus (iv) all costs of repossession, storing,
repairing, and selling or leasing the Vehicle, including disposition fees and reasonable attorney's fees, plus (v) interest at 18%
per annum on all of the foregoing from the date of early termination or default, less (vi) the net proceeds from the sale of the
Vehicle, if sold, or if leased, the present value of the rent under such lease attributable to the unexpired term of this Agreement
for the Vehicle, and less (vii) any payments received by Lessor under any insurance policy on the Vehicle that has not been
applied to repair or replace the Vehicle. In the event of one or more of the events or occurrences described in subparagraph
6(a), above, Lessor shall be entitled to retain any amount realized on the sale or other disposition of the Vehicle(s) in excess of
the Termination Value.
c.
Upon the early termination of this Lease with respect to a Vehicle with Lessor's consent or at the end of the
initial term or any extended term hereof with respect to a Vehicle, Lessor shall have the right to recover the Termination Value
from Lessee (computed without regard to clause (vi) of subparagraph 6(b), above), and Lessee shall receive any gain and bear
any loss incurred on the sale of the Vehicle. The gain or loss on the sale of the Vehicle shall be the surplus or deficiency
realized in the computation of the Termination Value under subparagraph 6(b), above. Upon the return of the Vehicle to Lessor
under this subparagraph, Lessor shall obtain a bona fide wholesale cash offer for the Vehicle and shall notify Lessee of the offer
and the resulting gain or loss that would result from the acceptance of such offer. Lessee shall notify Lessor within 3 business
days thereafter that it will either accept the sale of the Vehicle to the third party and accept the resulting gain (or bear the
resulting loss, as the case may be), or will otherwise purchase the Vehicle from Lessor for the Termination Value (computed
without regard to clause (vi) of subparagraph 6(b) above). If Lessee fails to make any election within 3 business days of such
notice, or fails to purchase the Vehicle and pay Lessor the Termination Value for the Vehicle within that time, Lessor may accept
such offer and charge or credit Lessee as appropriate. Any amount due to Lessor as a result of any termination shall be due as
soon as the amount is determined.
d.
If a Vehicle is lost, stolen or so damaged that it cannot, in Lessor's judgment, be economically repaired, this
Lease shall terminate effective thirty (30) days from the date of notice by Lessee to Lessor of the loss, theft or damage, and
Lessee shall pay Lessor the Termination Value on the effective date of termination, less the proceeds from any insurance
settlement paid to Lessor.
•
e.
Lessor's agreement to the early termination of this Lease with respect to a Vehicle or Lessor's acceptance
or repossession of a Vehicle prior to the end of the lease term shall not be construed to be a waiver of this Section 6 unless
Lessor expressly agrees to such waiver in writing.
f.
If Lessee fails to accept delivery of the Vehicle(s), Lessee agrees to pay a restocking fee.
g.
Upon the termination of this Lease for any reason, Lessor shall have the sole and exclusive right to
determine whether the Vehicle(s) should, at Lessee's expense, be reconditioned, repaired and/or transported to another area
prior to, or for the purpose of, being sold at wholesale or auctioned.
7.
USE OF THE VEHICLE(S)
a.
Lessee shall permit only safe, careful, licensed and authorized drivers to operate the Vehicle(s). Lessee
agrees, upon written notice from Lessor specifying any excessive collision claims or any indication of any other incompetence
by or of any driver, that Lessee will immediately take such action as is necessary to correct such conditions.
b.
The Vehicle(s) shall not be used for hire or public transportation, and use of the Vehicle(s) shall be confined
to the United States and Canada. Each Vehicle shall be garaged principally at the place set forth on Schedule A for such
Vehicle and shall not be removed to any other area unless Lessee obtains the prior written consent of Lessor. Lessee shall not
permit any Vehicle to be used in violation of any federal, state or municipal statutes, laws, ordinances, rules or regulations or
contrary to the provisions of any applicable insurance policy, and Lessee shall indemnify and hold Lessor harmless from any
and all fines, forfeitures, damages or penalties resulting from violation of such laws, ordinances, rules, regulations or policy.
c.
Lessee shall not alter or tamper with a Vehicle's odometer or speedometer. If Lessor determines that the
odometer or speedometer on a Vehicle has been tampered with or set back, it may arrange for the sale of the Vehicle in accord
with all of the terms of Section 6 hereof as if this Lease had been prematurely terminated. Lessor may arrange for said sale at
any time during or at the end of the lease term regardless of when said alteration or tampering is discovered by Lessor. If said
alteration or tampering with the speedometer or odometer of the Vehicle(s) is discovered by Lessor or others subsequent to the
return of the Vehicle(s) by Lessee to Lessor, Lessee shall, forthwith upon demand, indemnify hold harmless and pay Lessor
such out-of-pocket losses and expenses as Lessor shall incur as a result thereof, including but not limited to attorney's fees and
other cost of defending any action or claim which may be made against Lessor.
REV. 0113
Vehicle Lease Agreement
Page 3 of 4
Initials ____ _
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8.
DAMAGES AND INDEMNIFICATION
a.
Lessor shall not be responsible to Lessee, its agents, servants, employees, or others for any loss of
business or other damage caused by any interruption of the service or use herein to be furnished by Lessor, or for time
lost in repairing or replacing any Vehicle, nor for any loss, injury, or damage arising out of or relating to Lessor's failure to
deliver any Vehicle by reason of strikes or other causes beyond Lessor's control, nor for any other losses or damages
sustained by Lessee or others hereunder, except as specifically provided in Lessor's undertaking in this Agreement. It is
expressly agreed that Lessor assumes no liability or responsibility for any acts or omissions of Lessee, its agents or
employees, or for any property of Lessee, its agents or employees, or any other person's property damaged, lost or stolen
in or from the Vehicle(s) or for damage to anyone's person or property caused by defects in the Vehicle(s), such liability to
be borne by Lessee who expressly agrees to assume such liability and responsibility.
b.
Lessee shall defend, indemnify and hold harmless Lessor and Lessor's officers, employees and
agents from and against any damage, loss, theft, or destruction of the Vehicle(s), and against all losses, liabilities,
damages, injuries, claims, demands, costs and expenses of every kind and nature, (whether or not covered by insurance
or the manufacturer's warranty) including legal fees and disbursements, arising out of and in connection with the use,
condition or operation of the Vehicle(s) during the lease term, regardless of whether the same arise or are discovered
during or after the lease term.
9.
GENERAL AND MISCELLANEOUS
a.
This instrument constitutes the entire Agreement between the parties hereto and shall be binding on
the parties hereto and their heirs, executors, administrators, legal representatives, successors and assigns. Lessor is
authorized, but not required, to apply to the payment of any sums due Lessor hereunder as rent or otherwise, any security
deposit or other sum of money belonging to Lessee which may come into Lessor's possession. This Agreement may not
be amended or altered in any manner except in writing signed by both parties. No forbearance to exercise any rights or
privileges under this Agreement or waiver of any breach of any of its terms shall be construed as a continuing waiver of
any such terms, rights or privileges, but the same shall remain in full force and effect the same as if no such forbearance
or waiver had occurred. Lessee shall pay all costs and attorney's fees incurred by Lessor in the enforcement of this
Lease.
b.
Neither this Agreement nor any interest herein may be assigned by Lessee nor may the right to use
the Vehicle(s) be sublet, or leased to others. This Lease or any rent due or to become due may be assigned by Lessor
without consent of Lessee, but subject to the rights of Lessee hereunder.
c.
This Agreement shall be interpreted under and governed by the laws of the State of Wisconsin. If any
provision hereof or the application of any provision to any person or circumstances is held invalid or unenforceable, the
remainder hereof and the application of such provision to other persons or circumstances shall remain valid and
enforceable.
d.
Any notice given by one party to the other under this Agreement should be sent in writing addressed
to the other party at his address as set out herein, or at such other address as may have been furnished in writing for such
purpose. Any notice(s) sent by either party shall be considered effective (i) upon delivery if by hand or by overnight
courier; or (ii) three days after mailing, if by certified or registered mail to the receiving party.
e.
Time is the essence of this Agreement.
f.
Interest will not be paid on any security deposit.
Security deposits will not be segregated from
Lessor's other funds.
IN WITNESS WHERl;QF, the parties hereto have executed this Agreement on the~ day of
~e:.<Z~""i 20_\_,......
Daniel T. Ewald, Manager
REV. 0113
L::SEE:b;M~
Kevin Klemz
Title: EVP, Chief Legal Officer & Secretary
Vehicle Lease Agreement
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