Exhibit 10.21


 


REPLACEMENT MANAGEMENT AGREEMENT


 


REPLACEMENT MANAGEMENT AGREEMENT (this “Agreement”), dated as of May 28,
2008, by and among NuCO2, Inc., a Florida corporation (“NuCO2”) in its capacity as the “Master Manager”
of the Co-Issuers and as manager of the Employee Company (as defined below)
(the “Employee Company Manager”),
Alvarez & Marsal North America LLC, a Delaware limited liability
company (the “Replacement Manager”), NuCO2 Funding LLC, a
Delaware limited liability company (the “Master Issuer”),
each other Co-Issuer, NuCO2 Management LLC, a Delaware limited liability
company (the “Employee Company”) as itself
and in its capacity as the “Transaction Manager”, U.S. Bank National
Association, a national banking association (“U.S.
Bank”), acting hereunder in its capacity as “Trustee” under the
Indenture (as defined below) and not in its individual capacity for the benefit
of the Secured Parties and U.S. Bank, acting hereunder as “Administrative Agent”
under the Indenture and not in its individual capacity (the “Administrative Agent”).


 


PRELIMINARY STATEMENT


 


WHEREAS, the Co-Issuers have entered into an
Indenture, dated as of the date hereof (as amended, modified or otherwise
supplemented, the “Indenture”) with the Trustee
and the Administrative Agent pursuant to which the Co-Issuers may issue from
time to time one or more series of notes (the “Notes”),
in each case in accordance with a series supplement thereto;


 


WHEREAS, NuCO2 in its capacity as the Master Manager provides certain services to the
Co-Issuers, and as the Employee Company Manager provides certain services to
Employee Company;


 


WHEREAS, the Employee Company in its capacity as the
Transaction Manager provides certain services to the Co-Issuers;


 


WHEREAS, it is a condition of the issuance of the
Notes that the Co-Issuers and Employee Company engage the Replacement Manager
to perform the monitoring, advisory, management and other services described
herein;


 


WHEREAS, the Co-Issuers and Employee Company wish to
engage the Replacement Manager to provide the monitoring, advisory, management
and other services described herein, and the Replacement Manager has indicated
that it is willing to be so engaged.


 


NOW, THEREFORE, in consideration of the premises and
of the mutual covenants herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


1.                                       Definitions; Representations;
Effectiveness.  (a) Capitalized terms used but not
defined herein shall have the meanings given to them in Annex A
to the Indenture.


 

















 


(b)                                 The Replacement Manager hereby
represents, warrants and covenants, for its own part as Replacement Manager
hereunder and with respect to this Agreement:


 


(i)                                     It is a duly organized, validly existing
limited liability company in good standing under the laws of the state of its
organization.  It has full limited
liability company power, authority and legal right to execute, deliver and
perform its obligations under this Agreement.


 


(ii)                                  The execution and delivery of this
Agreement and the performance by the Replacement Manager of its duties
hereunder have been duly authorized by all necessary action on its part.


 


(iii)                               The execution and delivery of this
Agreement will not (i) conflict with any provision of the certificate of
formation of the Replacement Manager or the operating agreement of the
Replacement Manager, (ii) violate or result in a breach of any material
contract to which the Replacement Manager is a party or (iii) violate any
law to which the Replacement Manager is subject.


 


(iv)                              This Agreement constitutes a legal, valid
and binding obligation of the Replacement Manager, enforceable against the
Replacement Manager in accordance with its terms.


 


(v)                                 The Replacement Manager has the requisite
degree of expertise and resources to enable it to perform its duties and
obligations under this Agreement.


 


(vi)                              In performing its duties and obligations
under this Agreement the Replacement Manager shall exercise a degree of
diligence, skill and care that an ordinarily careful and prudent person would
in performing back-up and other services comparable to those that the
Replacement Manager has agreed to provide under this Agreement and shall devote
such time and resources as are necessary to enable it to perform such services.


 


(c)                                  Except as otherwise set forth herein,
this Agreement shall become effective on the date hereof and the Replacement
Manager shall render the services specified herein during the term of this
Agreement.


 


(d)                                 Upon the date of the receipt by the
Replacement Manager of written notice from the Administrative Agent (acting at
the direction of the Control Party) to the Replacement Manager to the effect
that an Early Amortization Event, Master Manager Default, Transaction Manager Default
or Employee Company Manager Default has occurred (such date, a “Warm Back-Up Services Effective Date”),
Section 3 of this Agreement shall become effective and the Replacement
Manager shall promptly render the services specified in Section 3 of this
Agreement until the date that the Replacement Manager receives written notice
from the Administrative Agent (acting at the direction of 


 


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the Control Party) that such Early Amortization Event, Master Manager
Default, Transaction Manager Default or Employee Company Manager Default is no
longer continuing as of a specified date or the Hot Back-Up Services Effective
Date has occurred (such date, a “Warm Back-Up Services
Termination Date” and the period from a Warm Back-Up Services
Effective Date to and including a Warm Back-Up Services Termination Date, a “Warm Back-Up Services Period”).


 


(e)                                  Upon the date of receipt of written
notice by the Replacement Manager from the Administrative Agent (acting at the
direction of the Control Party) to the Replacement Manager to the effect that
(x)(i) the Three-Month DSCR for any Payment Date is less than 1.20 times, (ii) an
Event of Default has occurred and is continuing or (iii) any of the Master
Manager, the Employee Company Manager or the Transaction Manager has resigned
and has not been replaced with a party reasonably acceptable to the Control
Party, and (y) the Administrative Agent (acting at the direction of the
Control Party) intends to exercise its rights to engage the services of the
Replacement Manager under Section 4 hereof (a “Hot
Back-Up Services Effective Date”), Section 4 of this
Agreement shall become effective and the Replacement Manager shall promptly
render the services specified in Section 4 of this Agreement until the
date that the Replacement Manager receives written notice from the
Administrative Agent (acting at the direction of the Control Party) that such
Services are terminated (such date, a “Hot Back-Up Services
Termination Date” and the period from a Hot Back-Up Services
Effective Date to and including a Hot Back-Up Services Termination Date, a “Hot Back-Up Services Period”).


 


(f)                                    The Administrative Agent shall provide
the Master Manager, the Transaction Manager and the Employee Company Manager with
written notice to the effect that a Hot Back-Up Services Period shall have
started or shall have terminated, as applicable.


 


2.                                       Monitoring and Advisory Services. 
The Replacement Manager hereby agrees, commencing on the date hereof, to
render the following services to the Co-Issuers, the Administrative Agent and
the Trustee, for the benefit of the Secured Parties (collectively, the “Monitoring and Advisory Services”):


 


(a)                                  based on the information provided to it
in accordance with the terms of this Agreement, to monitor and evaluate the
performance of the Master Manager under the Master Management Agreement, the
Transaction Manager under the Transaction Management Agreement and of the
Employee Company Manager under the Employee Company LLC Agreement by:


 


(i)                                     reviewing the periodic reports from the
Master Manager, the Transaction Manager and the Employee Company Manager as
described in Section 5 below;


 


(ii)                                  for each of the first three fiscal
quarters of each fiscal year, discussing (by phone) with members of the
Leadership Team of the Master Manager and the Administrative Agent the
performance of the Bulk 


 


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Gases Business and the
Employee Company’s and the Co-Issuers’ evaluation of their compliance with the
terms of the Related Documents; provided that
such discussion shall occur within sixty (60) days of the last day of each such
fiscal quarter (each, a “Quarter”)
of each fiscal year of the Co-Issuers (each a “Quarterly
Call”); and


 


(iii)                               on an annual basis meeting and discussing
(in person) with the Leadership Team and the Administrative Agent the
performance of the Bulk Gases Business and the Employee Company’s and the
Co-Issuers’ evaluation of their compliance with the terms of the Related
Documents; provided that such meeting shall occur
within one-hundred and five (105) days of the last day of each fiscal year of
the Co-Issuers (the “Annual Visit”);


 


(b)                                 to perform a review of the Bulk Gases
Business and the Employee Company’s and the Co-Issuers’ evaluation of their
compliance with the terms of the Related Documents on a quarterly basis (a “Quarterly Replacement Manager Review”)
based upon the corresponding Quarterly Call and the information distributed to
the Replacement Manager pursuant to Section 5 during such Quarter, and to
deliver a written report (each a “Quarterly Replacement
Manager Report”) to the Trustee, the Administrative Agent, the
Master Manager, the Transaction Manager and the Employee Company Manager
summarizing such Quarterly Replacement Manager Review within seventy-five (75)
days of the last day of each of the first three Quarters of each fiscal year of
the Co-Issuers; and


 


(c)                                  to perform a review of the Bulk Gases
Business and the Employee Company’s and the Co-Issuers’ evaluation of their
compliance with the terms of the Related Documents on an annual basis based
upon the Annual Visit and the information distributed to the Replacement
Manager pursuant to Section 5 during such annual period as well as the
Quarterly Replacement Manager Review for the previous three (3) Quarters,
which will examine the performance of the Bulk Gases Business, the evaluation
of the Master Manager’s compliance with the terms of the Master Management
Agreement, the evaluation of the Transaction Manager’s compliance with the
terms of the Transaction Management Agreement, the cash management system of
the Master Manager, the Transaction Manager and the Co-Issuers and the overall
business of the Co-Issuers (“Annual Replacement Manager
Review”) and to deliver a written report to the Trustee, the
Administrative Agent, the Master Manager, the Transaction Manager and the
Employee Company Manager summarizing the Annual Replacement Manager Review
within one-hundred twenty (120) days of the last day of each fiscal year.


 


Delivery of reports, information and documents by the
Replacement Manager pursuant to Sections 2(b) and (c) is for
informational purposes only and the receipt by the recipients of such reports
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Co-Issuers’,
the Master Manager’s, the Transaction Manager’s, the Employee Company Manager’s
or any other entity’s compliance with any of its covenants under any 


 


4

















 


of the Related Documents (as to which the Trustee and
Administrative Agent are entitled to rely on officer’s certificates from such
entities).


 


3.                                       Warm Back-Up Services. 
The Replacement Manager hereby agrees, during each Warm Back-Up Services
Period, to render, in addition to the Monitoring and Advisory Services
described above, the following additional services to the Co-Issuers, Employee
Company, the Administrative Agent and the Trustee, for the benefit of the Secured
Parties (collectively, the “Warm Back-Up Services”):


 


(a)                                  to attend (in-person or telephonically)
those Leadership Team meetings (as an observer) that the Replacement Manager,
in consultation with the Administrative Agent, deems appropriate and useful to
accomplishing its other Warm Back-Up Services (it being agreed by the Master
Manager, the Transaction Manager and the Employee Company Manager shall provide
at least one Business Day’s written (including email) notice of each Leadership
Team meeting pursuant to Section 6(h) below);


 


(b)                                 to perform an in-depth situation analysis
of the Master Manager, the Transaction Manager, the Employee Company Manager
and their respective financial position and of the Bulk Gases Business and the
Co-Issuers, based on information provided to the Replacement Manager pursuant
to Section 5 hereof, that analyzes among other things, (i) the key
drivers of historical performance, (ii) the strategic business plan for
the Bulk Gases Business to determine weaknesses (if any) and viability and (iii) the
causes of poor performance (e.g., pricing, cost structure, leverage);


 


(c)                                  to generate revised projections
(including cash forecasts, income statements and balance sheets) for the Bulk
Gases Business and the Co-Issuers, which projections will be based on (i) variance
analyses and (ii) stress tests to sensitize forecasts and incorporate
changes to the model used by the Rating Agencies in connection with their
issuance of ratings on the Notes;


 


(d)                                 to the degree relevant based on its situation
analysis, to identify alternative suppliers and providers of Contract Services
and Employee Services and suppliers of other services provided under the
Master Management Agreement, the Transaction Management Agreement, and the
Delivery and Customer Services Agreement as directed by the Administrative
Agent (at the direction of the Control Party);


 


(e)                                  to develop a plan (a “Transition  Plan”)
pursuant to which, based on the Replacement Manager’s situation analysis and
the situation at hand, the Replacement Manager will identify one or more
Persons that would be suitable to serve as a successor Master Manager
under the Master Management Agreement, a successor Transaction Manager under
the Transaction Management Agreement or a successor Employee Company Manager
(as the case may be). In developing the Transition Plan, the Replacement
Manager will also be permitted to identify (A) personnel, if any, at the
Master Manager, which it will recommend to be transferred to the Replacement
Manager to provide the Hot Back-Up Services and to assist in the transfer of
accounting, receivables, payables, finance, payroll and other financial
services to the Replacement Manager; and (B) individuals (i) from NuCO2’s existing Leadership Team, to the extent the
Replacement 


 


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Manager determines to recommend the retention
of all or part of the existing members of NuCO2’s Leadership Team, (ii) from its own organization, to the extent
the Replacement Manager determines to recommend the appointment of certain
executives from within its own organization, or (iii) from any other
organization, to the extent the Replacement Manager determines to recommend the
retention or appointment of certain persons not affiliated with either NuCO2’s existing Leadership Team or the Replacement
Manager’s own organization, in each case, to assist the Replacement Manager,
any successor Master Manager or successor Employee Company Manager (as the case
may be) in providing the necessary “Services” under this Agreement. Any
Transition Plan may include, but is not limited to, a recommendation to (i) terminate
NuCO2’s position as Master
Manager under the Master Management Agreement or Employee Company Manager (as
the case may be) or the Employee Company’s position as Transaction Manager
under the Transaction Management Agreement or (ii) re-engage NuCO2 to serve as
Master Manager under the Master Management Agreement or Employee Company
Manager (as the case may be) or re-engage the Employee Company to serve as Transaction
Manager under the Transaction Management Agreement.  The Administrative Agent will provide such
Transition Plan to the Control Party (in the manner described in the
Indenture).


 


4.                                       Hot Back-Up Services. 
The Replacement Manager hereby agrees, during each Hot Back-Up Services
Period, to render, in addition to the Monitoring and Advisory Services and the
Warm Back-Up Services, the following additional services to the Co-Issuers,
Employee Company, the Administrative Agent and the Trustee, for the benefit of
the Secured Parties (collectively, the “Hot Back-Up Services”):


 


(a)                                  to implement the Transition Plan,
including to assist the Control Party in selecting one or more Persons to serve
as a successor Master Manager, Transaction Manager and/or Employee Company
Manager; and


 


(b)                                 if so requested by the Administrative
Agent (as directed by the Control Party), to provide, directly or indirectly,
any or all of the following: (i) the Master Management Services set forth
under the Master Management Agreement, (ii) the Transaction Management
Services, (iii) the Transaction Servicing Services set forth under the
Transaction Management Agreement and (iv) the services (the “Manager Services”) of the Employee
Company Manager under the Employee Company LLC Agreement; provided,
however, that:


 


(i)                                     the Replacement Manager shall not be
required to recommend and assist in implementing quality control standards
unless, in its reasonable judgment, such a service is required;


 


(ii)                                  the Replacement Manager shall only be
required to use commercially reasonable efforts to cause each of the
Securitization Entities and the Employee Company to comply with and to perform
its respective obligations under each of the Related Documents to which it is a
party;


 


6

















 


(iii)                               Master Management Services, Transaction
Management Services, Transaction Servicing Services and Manager Services shall
not include any provisions arising from modifications or supplements to the
Master Management Agreement, the Transaction Management Agreement or the
Employee Company LLC Agreement after the date hereof, unless agreed to by the
Replacement Manager;


 


(iv)                              the Replacement Manager shall only be
required to provide the Transaction Management Services (and any correlative
Master Management Services) set forth in Section 2.1(a)(vii) and (ix) and
Sections 2.1(c)(vii) and (viii) of the Transaction Management
Agreement as it deems necessary in its reasonable judgment;


 


(v)                                 such Master Management Services,
Transaction Management Services, Transaction Servicing Services and Manager
Services shall be provided by the Replacement Manager, as modified by and
otherwise subject to the terms hereof, including without limitation Section 5,
Section 6 and Section 10;


 


(vi)                              for purposes of providing the Manager
Services, the Replacement Manager shall be the “manager” of the Employee
Company within the meaning of the Delaware Limited Liability Act, as amended
from time to time;


 


(vii)                           in addition to any discretionary powers
provided herein, the Replacement Manager shall have the right to exercise all
discretionary powers in rendering the Master Management Services, Transaction
Management Services, Transaction Servicing Services and Manager Services as is
afforded to the Transaction Manager, Master Manager or Employee Company Manager
under the Transaction Management Agreement, Master Agreement or Employee
Company LLC Agreement, respectively; and


 


(viii)                        with respect to any obligations to
provide any Transaction Servicing Services, the Replacement Manager shall only
be obligated to use its commercially reasonable efforts to cause the
Securitization Entities and the Employee Company to perform the Transaction
Servicing Services (to the extent that it can cause such Persons to act or
refrain from acting) and shall not be required to provide such Transaction
Servicing Services itself.


 


(c)                                  Notwithstanding anything to the contrary
herein, the Replacement Manager shall have no obligation to provide any
Services, including Hot Back-Up Services, unless the Co-Issuers shall have
complied with the insurance requirements set forth in the Replacement
Management Fee Letter, dated as of the date hereof (the “Fee
Letter”), between the Co-Issuers and the Replacement Manager.


 


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5.                                       Information.


 


(a)                                  The Master Manager, the Transaction
Manager and the Employee Company Manager each hereby agrees, as soon as is
available, to provide the Replacement Manager with the information listed on
Schedule A hereto or referred to in Sections 2, 3 and 4 and any other
information reasonably requested by the Replacement Manager that is necessary
for it to perform the Monitoring and Advisory Services, the Warm Back-Up
Services and the Hot Back-Up Services (collectively, the “Services”);
provided, however,
that, in connection with its performance of the Monitoring and Advisory
Services, the Replacement Manager shall not require the Master Manager, the
Transaction Manager or the Employee Company Manager to produce reports or
information that the Master Manager, the Transaction Manager or the Employee
Company Manager does not at the time of the request produce or have or which
would be unreasonably expensive or burdensome to prepare or
produce.


 


(b)                                 The Replacement Manager shall only be
required to review the information provided by the Master Manager, the
Transaction Manager and the Employee Company Manager pursuant to this Section 5
and its obligation to report any inconsistencies shall be limited to those
determinable from such information.


 


(c)                                  The Master
Manager, the Transaction Manager, the Employee Company Manager, the Co-Issuers,
the Trustee, on behalf of the Secured Parties, and the Administrative Agent,
agree that, in rendering the Services, the Replacement Manager shall have the
right to rely on the truth, completeness, accuracy and factual content of all conversations, reports and other
information that the Replacement Manager (i) may receive from the Master
Manager, the Transaction Manager, the Employee Company Manager or the
Administrative Agent as contemplated herein and from any other parties to the
Related Documents, including any successor Master Manager, the Transaction
Manager or Employee Company Manager or other third party (“Third Party”) or (ii) believed to be genuine and made by the
proper person and upon the advice or opinion of counsel or other experts
selected by the Replacement Manager. The Replacement Manager shall not be
liable for an error of judgment made in good faith by an officer of the
Replacement Manager, unless it shall be proven that the Replacement Manager was
grossly negligent in ascertaining the pertinent facts.  The Replacement Manager shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
entitlement order, approval or other paper or document; provided, however, that
if in the reasonable judgment of the Replacement Manager, an investigation is
advisable then the Replacement Manager shall make, or shall cause a third
party to make, such investigation. 
For the avoidance of doubt, the parties hereto agree that the
Replacement Manager shall have the right to rely on the truth of any representation
on the part of the Administrative Agent to the effect that the Administrative
Agent is acting at the direction of the Control Party, and the Replacement
Manager shall not have to independently confirm the truth of such
representation.


 


(d)                                 The Replacement Manager shall have no
liability for the acts or omissions of the Master Manager, the Transaction
Manager, the Employee Company Manager or any Third Party or for the inaccuracy
of any data provided, produced or 


 


8

















 


supplied by the Master Manager, the Transaction Manager, the Employee
Company Manager or (except as provided under Section 17) such Third Party.
If any error exists in any information provided to the Replacement Manager and
such errors cause or materially contribute to the Replacement Manager making a
continuing error, the Replacement Manager shall have no liability for such
continued errors.


 


6.                                       Cooperation.


 


(a)                                  The Master
Manager, the Transaction Manager and the Employee Company Manager each
covenants to cooperate with the Replacement Manager in the performance of the
Services and to use its best efforts to facilitate the Transition Plan.  The Replacement Manager covenants to
cooperate with the Master Manager, the Transaction Manager and the Employee
Company Manager in the performance of the Services and to use its best efforts
to facilitate the Transition Plan.  The parties hereto acknowledge that
Replacement Manager’s ability to provide the Services may be impaired by the
Master Manager’s, the Transaction Manager’s or the Employee Company Manager’s
refusal or inability to cooperate with the Replacement Manager or to deliver
the information required to be delivered to the Replacement Manager pursuant to
Section 5.


 


(b)                                 Upon the
termination of the Master Manager, the Transaction Manager and/or the Employee
Company Manager in accordance with the Master Management Agreement, the
Transaction Management Agreement and the Employee Company LLC Agreement, as the
case may be, and this Agreement, such party shall, in accordance with the terms
of the Master Management Agreement, the Transaction Management Agreement and/or
the Employee Company LLC Agreement (as the case may be), (i) continue to
cooperate with the Replacement Manager in the conduct of the Services and the
implementation of the Replacement Manager Plan until a successor Master
Manager, Transaction Manager or Employee Company Manager (as the case may be)
is identified and (ii) cooperate in the transition to the Replacement
Manager, with the objective of mitigating interruption or adverse impact on the
provision of Services.  Thereafter, each
of the Master Manager, the Transaction Manager and the Employee Company Manager
will cooperate fully with the Replacement Manager and otherwise promptly take
all actions required to assist in effecting a complete disentanglement from the
Master Manager, the Transaction Manager or the Employee Company Manager, as the
case may be, and will follow any commercially reasonable directions that may be
provided by the Replacement Manager or the Administrative Agent (at the
direction of the Control Party).  Each of
the Master Manager, the Transaction Manager and the Employee Company Manager
will provide all appropriate information and assistance regarding the
terminated services required for disentanglement, including data conversion and
migration, interface specifications, and related professional services.  Each of the Master Manager, the Transaction
Manager and the Employee Company Manager will provide for the prompt and
orderly conclusion of all work, as the Replacement Manager and the
Administrative Agent (at the direction of the Control Party) may direct,
including completion or partial completion of projects, documentation of all
work in progress, and other measures to assure an orderly transition to the
Replacement Manager.  The Replacement
Manager shall cooperate with the Master Manager, the Transaction Manager and
the Employee Company Manager with respect to the foregoing.


 


9

















 


During this period, the
Master Manager will continue to be entitled to payment of its fees under the
Master Management Agreement, except pursuant to the last sentence of Section 7
hereof, and the Transaction Manager will continue to be entitled to payment of
its fees under the Transaction Management Agreement. Upon the Replacement
Manager’s assumption of the obligation to perform all Services of the Master
Manager, the Transaction Manager or the Employee Company Manager, as the case
may be, the Master Manager, the Transaction Manager and the Employee Company
Manager will be entitled to reimbursement of its actual costs by the Co-Issuers
and the Employee Company for the provision of any of the foregoing
disentanglement.


 


(c)                                  For any and all periods in which the
Replacement Manager is required to provide Master Management Services, the
Transaction Management Services, the Transaction Servicing Services or Manager
Services pursuant to Section 4, each of NuCO2,
the Co-Issuers and the Employee Company hereby irrevocably constitutes and
appoints the Replacement Manager and any officer thereof with full power of
substitution, as its true and lawful attorney-in-fact with full power and
authority to act in the place and stead of the Master Manager, Employee Company
Manager, Master Issuer, Employee Company, NuCO2 LLC (“Contract Holder”),
NuCO2 Supply LLC (“Equipment
Holder”), NuCO2 IP LLC (“IP Holder”),
or Transaction Manager, respectively, and in the name of the Master Manager,
Employee Company Manager, Master Issuer, Employee Company, Contract Holder,
Equipment Holder, IP Holder, or Transaction Manager, respectively, or in its
own name, from time to time in the Replacement Manager’s discretion, for the
purpose of providing Master Management Services, the Transaction Management
Services, Transaction Servicing Services or Manager Services pursuant to Section 4
in accordance with the terms of this Agreement, and will execute the power of
attorney in the form attached hereto as Exhibit A.


 


(d)                                 The Replacement Manager shall not be
liable for any act, or failure to act, by the Employee Company or any
Co-Issuer, with respect to which the Replacement Manager had no authority to
cause or prevent.


 


(e)                                  Effective as of the first day of a Hot
Back-Up Service Period, IP Holder grants to the Replacement Manager a
non-exclusive, royalty-free license in and right to use the Securitization IP
to the extent reasonably necessary for the Replacement Manager to perform its
obligations hereunder.  The foregoing
license grant shall extend to the Replacement Manger’s employees, agents and,
solely to the extent the same are permitted to perform obligations of the
Replacement Manager hereunder, independent contractors.  Such license shall terminate on the earlier
of (i) the date such Hot Back-Up Services Period is terminated or (ii) the
date on which this Agreement is terminated.


 


(f)                                    The Replacement Manager acknowledges that
it is not the owner of the Securitization IP and that its right to use the
Securitization IP is derived solely from this Agreement.  The Replacement Manager acknowledges that it
shall not acquire or claim adversely to IP Holder any right, title or interest
in and to any of the Securitization IP or any of the goodwill related
thereto.  The Replacement Manager
acknowledges that each and every use of the Securitization IP by the
Replacement Manager under this Agreement and any and all goodwill resulting
from the Replacement Manager’s use of the


 


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Securitization IP shall at all times inure to the benefit of IP Holder,
and the Replacement Manager agrees to execute any and all documents that may be
submitted to the Replacement Manager reasonably necessary to carry out the
intention of this covenant.  This
covenant shall survive termination of this Agreement for any reason.


 


(g)           The Replacement Manager shall immediately
notify IP Holder of any apparent infringement of, challenge to the Replacement
Manager’s use of, or adverse claim of rights to, the Securitization IP, and the
Replacement Manager shall not communicate with any person other than IP Holder
and its counsel or the Replacement Manager’s counsel in connection with any
such infringement, challenge or claim.


 


(h)           The Master Manager, the Transaction
Manager and the Employee Company Manager agree to provide the Replacement
Manager with at least one Business Day prior written notice (including by
email) of each Leadership Team meeting.


 


7.             Compensation for Monitoring and Advisory
Services.  As compensation for rendering the Services
hereunder, in addition to the expenses set forth in Section 8, the
Co-Issuers and the Employee Company shall make payments to the Replacement
Manager in accordance with the fee arrangement (the “Replacement
Management Fees”) set forth in the Fee Letter, provided that such payments shall be paid only from amounts
available for such purpose pursuant to the Priority of Payments set forth in Section 5.13
of the Indenture.  Fees incurred as of
any date will be billed promptly by the Replacement Manager to the Co-Issuers
and the Employee Company, but at least on a quarterly basis, and payment
thereof will be the responsibility of the Co-Issuers and the Employee
Company.  The Replacement Management Fees
paid to the Replacement Manager during the Hot Back-Up Services Period may be
amended at any time with the agreement of the Control Party and the Replacement
Manager.  During the Hot Back-Up Services
Period, all or a portion of the Master Management Fee may be paid by the
Transaction Manager to the Replacement Manager, but only to the extent
necessary pursuant to the terms of the Related Documents.  To the extent that the Replacement Manager
declines to provide services pursuant to Section 4(c), it shall be not be
entitled to compensation for such declined services.


 


8.             Reimbursable Costs. 
In consideration of the fees payable hereunder, the Replacement Manager
agrees to bear as non-reimbursable costs, all of the Replacement Manager’s
general overhead and administrative costs and all of the Replacement Manager’s
routine incidental costs incurred by the Replacement Manager in rendering the
Services.  The Co-Issuers and the
Employee Company will reimburse the Replacement Manager for the reasonable and
documented out-of-pocket expenses incurred by the Replacement Manager in
connection with the negotiation, execution and performance of this Agreement
and the Services hereunder, including, without limitation, approved market
research, travel, hotels, meals, long distance telephone calls, overnight
couriers, document duplication and authorized third-party professional fees.


 


11

















 


9.             Term.


 


(a)           The term of this Agreement shall continue
from the date hereof until satisfaction and discharge of the Indenture pursuant
to Article XI thereof, or, if earlier, until terminated as set forth
below.


 


(b)           The Replacement Manager has no right to
resign except that it may resign (x) on thirty (30) days’ prior written
notice to the parties hereto, if the Replacement Manager is prohibited from
acting as Replacement Manager as a matter of law or (y) on not less than
sixty (60) days’ prior written notice to the parties hereto; provided that in each case the Replacement Manager shall not
resign prior to the engagement of a substitute Replacement Manager.


 


(c)           The Replacement
Manager agrees that, if it resigns or is replaced before the Indenture is
terminated, it will cooperate with the transition to a substitute Replacement
Manager.


 


(d)           The
Administrative Agent (at the direction of the Control Party) and, with the
Control Party’s prior written consent, the Co-Issuers and the Employee Company,
will have authority to terminate the Replacement Manager upon not less than two (2) weeks
prior written notice to the Replacement Manager, to each other party hereto and
to each Rating Agency, which termination shall be effective upon the engagement
of a substitute Replacement Manager).


 


(e)           If the Replacement Manager is replaced or if
it resigns, the Co-Issuers and the Employee Company, the Master Manager, the
Transaction Manager and the Employee Company Manager agree to (i) accept
any substitute Replacement Manager designated by the Administrative Agent (at
the direction of the Control Party) and (ii) with written notice to the
applicable Rating Agencies execute a Replacement Management Agreement with
substantially similar terms and conditions to those herein and with similar
duties for the Trustee and the Administrative Agent, or such other terms as may
be reasonably acceptable to the Control Party, the Rating Agencies, the
Co-Issuers (so long as no Event of Default shall have occurred and be
continuing), the Employee Company, the Master Manager (so long as no Master
Manager Default shall have occurred and be continuing), the Transaction Manager
(so long as no Transaction Manager Default shall have occurred and be
continuing) and the Employee Company Manager (so long as no Employee Company
Manager Default shall have occurred and be continuing).


 


10.           Limitation of Liability.


 


(a)           Assuming performance by the Replacement
Manager of its obligations hereunder, except to the extent finally determined
to have resulted from its own willful misconduct, gross negligence or
fraudulent behavior, the Replacement Manager shall not be liable to the Master
Manager, the Transaction Manager, the Employee Company Manager, the Co-Issuers,
the Employee Company, the Noteholders or any other party-in-interest to this
Agreement, whether a claim be in tort, contract or otherwise.


 


12

















 


(b)           Other than as specifically set forth in
this Replacement Management Agreement, the Replacement Manager shall have no
obligation to supervise, verify, monitor or administer the performance of the
Master Manager, the Transaction Manager or the Employee Company Manager and
shall have no liability for any action taken or omitted by the Master Manager,
the Transaction Manager or the Employee Company Manager.


 


(c)           The status of the Replacement Manager
with respect to the Master Manager, the Transaction Manager, the Employee
Company Manager, the Trustee, the Administrative Agent, the Noteholders, the
Employee Company and the Co-Issuers shall be that of an independent contractor
status.  None of the Replacement Manager’s
employees or agents shall be deemed employees of the Master Manager, the
Transaction Manager, the Employee Company Manager, the Trustee, the
Administrative Agent, the Noteholders, the Employee Company and the Co-Issuers.


 


(d)           The Co-Issuers shall jointly and
severally indemnify, defend and hold harmless the Replacement Manager and its
respective officers, directors, agents and employees from and against any and
all costs, expenses, losses, claims, damages and liabilities to the extent that
such cost, expense, loss, claim, damage or liability arose out of, or was
imposed upon the Replacement Manager as acting as or in the stead of the Master
Manager or Transaction Manager, except to the extent finally determined to have
resulted from the Replacement Manager’s own willful misconduct, gross
negligence or fraudulent behavior.  The
Employee Company shall indemnify, defend and hold harmless the Replacement
Manager and its respective officers, directors, agents and employees from and
against any and all costs, expenses, losses, claims, damages and liabilities to
the extent that such cost, expense, loss, claim, damage or liability arose out
of, or was imposed upon the Replacement Manager as acting as or in the stead of
the Employee Company Manager or Transaction Manager, except to the extent
finally determined to have resulted from the Replacement Manager’s own willful
misconduct, gross negligence or fraudulent behavior.  Each of the Master Manager, the Transaction
Manager and Employee Company Manager further agrees to indemnify, defend and
hold harmless the Replacement Manager and its respective officers, directors,
agents and employees from and against any and all costs, expenses, losses,
claims, damages and liabilities to the extent that such cost, expense, loss,
claim, damage or liability arose out of, or was imposed upon the Replacement
Manager through the gross negligence or misconduct of any Third Party with
respect to the information provided pursuant to Section 5 hereof or
through the Master Manager’s, Transaction Manager’s or Employee Company Manager’s
breach of this Agreement, willful misconduct, gross negligence or fraudulent
behavior, except to the extent finally determined to have resulted from the
Replacement Manager’s own willful misconduct, gross negligence or fraudulent
behavior.


 


(e)           Indemnification under this Section 10
shall include, without limitation, reasonable fees and expenses of counsel and
expenses of litigation. If the indemnifying party has made any indemnity
payments pursuant to this Section 10 and the recipient thereafter collects
any of such amounts from others, the recipient shall promptly repay such
amounts collected to the indemnifying party, together with any interest earned
thereon.


 


13

















 


(f)            The provisions of this Section 10
shall survive the termination of this Agreement.


 


11.           Confidentiality.  “Confidential Information” means
Know-How and any other information treated as confidential and proprietary by
its owner, whether or not designated as confidential, that is disclosed by one
party hereto (“Discloser”), either directly
or indirectly, in writing or orally, to another party hereto (“Recipient”).


 


(a)           Each of the Master Manager, the
Transaction Manager, the Employee Company Manager, the Co-Issuers, the Employee
Company, the Trustee, the Administrative Agent and the Replacement Manager
acknowledges that during the term of this Agreement, a party may receive
Confidential Information from another party. 
Each such party agrees to maintain the Confidential Information in
strict confidence and will not, at any time, use, disseminate or disclose any
Confidential Information to any person or entity other than those of its
employees or representatives who have a “need to know”, who have been apprised
of this restriction.  Recipient shall be
liable for any breach of this Section 11 by any of its employees or
representatives and shall immediately notify Discloser in the event of any loss
or disclosure of any Confidential Information. 
Upon termination of this Agreement, Recipient will return to Discloser,
or at Discloser’s request, destroy all documents and records in its possession
containing the Confidential Information of Discloser; provided
that Recipient may retain copies of the Confidential Information supporting
prior reports delivered pursuant to Section 2 above, subject to the
continuing obligations under this Section 11.  Confidential Information shall not include
information that (i) is already known to Recipient without restriction on
use or disclosure prior to receipt of such information from Discloser; (ii) is
or becomes part of the public domain other than by breach of this Agreement by,
or other wrongful act of, Recipient; (iii) is developed by Recipient
independently of and without reference to any Confidential Information; (iv) is
received by Recipient from a Third Party who Recipient knows is not under any
obligation to Discloser to maintain the confidentiality of such information; or
(v) is required to be disclosed by applicable law, statute, rule, regulation,
subpoena, court order or legal process; provided that
Recipient shall promptly inform Discloser of any such requirement and cooperate
with any attempt by Discloser to obtain a protective order or other similar
treatment.  It shall be the obligation of
Recipient to prove that any exception to the definition of Confidential
Information is applicable.


 


(b)           All books, records, documents, papers or
other materials relating to the Co-Issuers’, the Employee Company’s, the Master
Manager’s, Transaction Manager’s or the Employee Company Manager’s business,
intellectual property, customers, suppliers, distributors, products or projects
received by the Replacement Manager from the Co-Issuers, the Employee Company,
the Master Manager, the Transaction Manager or the Employee Company Manager in
the Replacement Manager’s possession, under the Replacement Manager’s control
or containing Confidential Information or other proprietary information or
trade secrets of the Co-Issuers, the Employee Company, the Master Manager, the
Transaction Manager or the Employee Company Manager, including any copies
thereof shall at all times be and remain the property of the Co-Issuers, the
Master Manager, the Transaction Manager or the Employee Company Manager, as the
case may be, and shall be returned immediately to the Co-


 


14

















 


Issuers, the Employee Company, the Master Manager, Transaction Manager
or the Employee Company Manager, as the case may be, upon termination of this
Agreement.


 


(c)           Nothing in this Section 11 shall be
construed as preventing the Co-Issuers, the Employee Company, the Master
Manager, the Transaction Manager or the Employee Company Manager, the Trustee,
the Administrative Agent or the Control Party from pursuing any and all
remedies available to it for the breach or threatened breach of covenants made
in this Section 11, including recovery of money damages or temporary or
permanent injunctive relief.


 


(d)           It is understood that nothing in this
Agreement is intended to preclude the Replacement Manager or its affiliates
from engaging in related types of consulting work with other firms or
organizations, whether in a related business or otherwise; provided
that reasonable and proper professional safeguards are maintained to ensure
that Confidential Information is not made available to such others.


 


12.           No Bankruptcy Petition. 
The Replacement Manager agrees that, prior to the date which is one year
and one day after the payment in full of the latest maturing Note, it will not
institute against, or join any other person in instituting against any
Co-Issuer or the Employee Company, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any federal
or state bankruptcy or similar law.


 


13.           Notices.  All notices
and other communications under this Agreement shall be in writing and shall be
deemed to have been given on the Business Day next following the day when sent
out by telecopy addressed to the party to which such notices is directed at its
address determined herein.  All notices
and other communications under this Agreement shall be given to the parties
hereto at the following addresses:


 


If to any Co-Issuer:


 


c/o NuCO2 Inc.

2800 S.E. Market Place

Stuart, FL 34997

Attention: General Counsel


 


If to the Master Manager:


 


2800 S.E. Market Place

Stuart, FL 34997

Attention: General Counsel


 


15

















 


If to the Transaction Manager:


 


c/o NuCO2 Inc.

2800 S.E. Market Place

Stuart, FL 34997

Attention: General Counsel


 


If to the Employee Company Manager or Employee Company:


 


c/o NuCO2 Inc.

2800 S.E. Market Place

Stuart, FL 34997

Attention: General Counsel


 


If to the
Replacement Manager:


 


Alvarez &Marsal
North America LLC


600 Lexington Avenue

6th Floor

New York, NY 10022


Phone: (212) 759-4433


Fax: (646) 495-3600


Attention: Joseph A.
Bondi


 


If to the Trustee:


 


U.S. Bank National Association

60 Livingston Avenue

EP-MN-WS3D

St. Paul, MN 55107

Fax: (866) 831-7910

Attention: Structured Finance/NuCO2


 


If to the Administrative
Agent:


 


U.S. Bank National Association

1310 Madrid Street, Suite 103

Marshall, MN 56258

Fax: (866) 806-0775

Attention: Joe Andries/NuCO2


 


If to the Rating Agencies:


 


Fitch Ratings


ABS Surveillance - New
Assets


70 W. Madison, Suite 1100


Chicago, IL 60602


 


16

















 


Any
party hereto may change the address to which notices shall be directed by
giving ten (10) days’ notice of such change to the other parties.  Each party sending or delivering a notice of
any kind hereunder shall also provide a copy of the notice in any manner
authorized herein to the Trustee and the Administrative Agent.


 


14.           Entire Agreement. 
This Agreement and the Related Documents, including the Fee Letter, the
Master Management Agreement, the Transaction Management Agreement and the
Employee Company LLC Agreement, set forth the entire agreement and
understanding of the parties relating to the subject matter hereof and
supersede all prior and contemporaneous agreements and understandings, whether
oral or written, relating to the subject matter hereof.


 


15.           Severability. 
If any provision of this Agreement or the application of any provision
hereof to any person or in any circumstances is held invalid, the remainder of
this Agreement and the application of such provision to other persons or
circumstances shall not be affected unless the provision held invalid shall
substantially impair the benefits of the remaining portions of this Agreement.


 


16.           Amendments; Waivers. 
Any term, covenant, agreement or condition of this Agreement may be
amended, modified or waived only by a writing signed by all parties to this
Agreement and consented to by the Administrative Agent (at the direction of the
Control Party).  Unless otherwise specified
in such waiver, a waiver of any right under this Agreement shall be effective
only in the specific instance and for the specific purpose for which it is
given.  No election not to exercise,
failure to exercise or delay in exercising any right, nor any course of dealing
or performance, shall operate as a waiver of any right under this Agreement or
applicable law, nor shall any single or partial exercise of any such right
preclude any other for further exercise thereof or the exercise of any other
right under this Agreement or applicable law.


 


17.           Successors and Assigns; Third Party
Beneficiaries; Sub Contractors; Agents.


 


(a)           This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, that the Replacement Manager may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Master Issuer, the Trustee and the Control Party.


 


(b)           The Control Party is an intended third
party beneficiary of this Agreement and may indirectly (through the
Administrative Agent and the Replacement Manager, each acting in accordance
with the Control Party’s direction) enforce the provisions of this Agreement,
exercise the rights of the Master Manager, the Transaction Manager, the
Employee Company Manager, the Employee Company and the Co-Issuers and enforce
the obligations of the Replacement Manager hereunder without the consent of the
Master Manager, the Transaction Manager, the Employee Company Manager, the
Employee Company or any Co-Issuer.


 


17

















 


(c)           Notwithstanding anything to the contrary
herein, the Replacement Manager may (a) outsource certain specific
functions to a Third Party, and (b) in order to fulfill its obligations as
Replacement Manager hereunder, delegate certain specific functions to any
entity that is directly or indirectly owned by Replacement Manager or any
entity controlling, controlled by or under common control with, Replacement
Manager.  Replacement Manager shall
remain liable for the conduct of any subcontractor, including any Third Party
to which it outsources or otherwise delegates its specific functions, to the
same extent as Replacement Manager’s liability under this Agreement.  Replacement Manager shall be solely
responsible for the compensation due to any such subcontractor for Services
rendered in connection with this Agreement.


 


(d)           The Replacement Manager may execute any
of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, attorneys, custodians or nominees appointed
with due care.


 


18.           Headings.  Headings to
paragraphs of this Agreement are included for convenience of reference only and
shall not constitute a part of this Agreement for any other purpose or in any
way affect the meaning or construction of any provision of this Agreement.  All words used in this Agreement shall be
construed to be of such gender as the circumstances require.


 


19.           Governing Law; Jurisdiction.


 


(a)           THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


(b)           The parties hereto each hereby
irrevocably submit (to the fullest extent permitted by applicable law) to the
non-exclusive jurisdiction of any New York state or federal court sitting
in the borough of Manhattan, New York City, State of New York, over
any action or proceeding arising out of or relating to this Agreement or any
related documents and the parties hereto hereby irrevocably agree that all
claims in respect of such action or proceeding shall be heard and determined in
such New York state or federal court. The parties hereto each hereby
irrevocably waive, to the fullest extent permitted by applicable law, any objection
each may or may not hereafter have, to remove any such action or proceeding,
once commenced, to another court on the grounds of forum
nonconveniens or otherwise.


 


20.           Waiver of Jury Trial. 
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.


 


21.           Counterparts. 
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such separate counterparts
shall together constitute one and the same instrument.


 


18

















 


IN WITNESS WHEREOF, this
Replacement Management Agreement has been executed by the duly authorized
signatories of the parties hereto all as of the day and year first above
written.


 


 


	
   

  	
   

  	
  NuCO2 FUNDING LLC,
  as Co-Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Inc., its
  Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Eric M. Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Eric M. Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  General Counsel

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NuCO2 LLC, as
  Co-Issuer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Funding LLC,
  its Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Inc., its
  Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Eric M. Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Eric M. Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  General Counsel

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NuCO2 SUPPLY LLC,
  as Co-Issuer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Funding LLC,
  its Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Inc., its
  Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Eric M. Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Eric M. Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  General Counsel

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NuCO2 IP LLC, as
  Co-Issuer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Funding LLC,
  its Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Inc., its
  Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Eric M. Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Eric M. Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  General Counsel

  
								



 

















 


	
   

  	
   

  	
  NuCO2  MANAGEMENT LLC, as Transaction Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 INC., its Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Eric M. Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Eric M. Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  General Counsel

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ALVAREZ &
  MARSAL NORTH AMERICA LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Joseph A. Bondi

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Joseph A. Bondi

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION, as Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Edward F. Kachinski

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Edward F. Kachinski

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION, as Administrative Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Edward F. Kachinski

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Edward F. Kachinski

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
								



 














 


Schedule A


 


1.             The Transaction Manager shall provide the Replacement
Manager with all reports, certificates and financial statements delivered or
furnished pursuant to Section IV of the Indenture in the manner set forth
therein.


 


2.             The Transaction Manager shall provide the Replacement
Manager with all reports delivered or furnished pursuant to the Transaction
Management Agreement in the manner set forth therein.


 


3.             The Employee Company Manager shall provide the
Replacement Manager with all reports delivered or furnished pursuant to the
Employee LLC Agreement in the manner set forth therein


 


4.             NuCO2 shall provide the Replacement Manager with the
information contained in any departmental or operating reports provided to the
board of directors of NuCO2, relating
to its operations as the Master Manager and the Employee Company Manager,
including, without limitation, the information contained in any reports with
respect to ongoing litigation, promptly after such reports are provided to the
board of directors of NuCO2.


 


1

















 


EXHIBIT A


 


POWER OF ATTORNEY


 


LIMITED POWER OF ATTORNEY (SPECIAL)


 


KNOW ALL MEN BY THESE PRESENTS, that each of NuCO2, Inc. (“NuCO2”), NuCO2
Funding LLC (“Master Issuer”), NuCO2 Inc. (“Master Manager”),  NuCO2 LLC (“Contract Holder”),  NuCO2 Supply LLC (“Equipment Holder”),  NuCO2 IP LLC (“IP Holder”)  and  NuCO2 Management LLC (“Employee Company”)
in its full capacity under the Replacement Management Agreement (the “Replacement Management Agreement”),
dated as of May 28, 2008, by and between Alvarez & Marsal North
America LLC. (the “Replacement Manager”), Master
Manager, Master Issuer, Contract Holder, Equipment Holder, IP Holder, Employee
Company, the Trustee and the Administrative Agent does hereby nominate,
constitute and appoint the Replacement Manager as its true and lawful
attorney-in-fact for it and in its name, place, stead and for its use and
benefit:


 


To perform any and all acts which may be
necessary or appropriate to enable the Replacement Manager to provide the
Services in accordance with the terms of the Replacement Management Agreement,
giving and granting unto the Replacement Manager full power and authority to do
and perform any and every act necessary, requisite, or proper in connection
with the foregoing and hereby ratifying, approving or confirming all that the
Replacement Manager shall lawfully do or cause to be done by virtue hereof.


 


Capitalized terms used herein but not otherwise
defined shall have the meanings set forth in the Replacement Management
Agreement.


 


1

















 


IN WITNESS WHEREOF, the undersigned has caused this limited
power of attorney to be executed as of this 28 day of May 2008.


 


	
   

  	
   

  	
  NuCO2 FUNDING LLC,
  as Co-Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Inc., its
  Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NuCO2 LLC, as
  Co-Issuer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Funding LLC,
  its Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Inc., its
  Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NuCO2 SUPPLY LLC,
  as Co-Issuer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Funding LLC,
  its Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Inc., its
  Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NuCO2 IP LLC, as
  Co-Issuer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Funding LLC,
  its Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Inc., its
  Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  
								



 


2

















 


	
   

  	
   

  	
  NuCO2  MANAGEMENT LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 INC., its Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


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