Exhibit
10.20


 


	
   

  	
   

  



 


NUCO2 MANAGEMENT LLC,

as Transaction Manager


 


NUCO2 FUNDING LLC,

as Master Issuer


 


and


 


NUCO2 LLC, NUCO2 SUPPLY LLC and NUCO2 IP LLC,

as Issuer Subsidiaries


 






 


TRANSACTION MANAGEMENT AGREEMENT


 






 


Dated as of May 28, 2008


	
   

  	
   

  



 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I.

  	
  DEFINITIONS

  	
  1

  
	
  Section 1.1

  	
  Defined Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
  DUTIES OF THE TRANSACTION
  MANAGER

  	
  2

  
	
  Section 2.1

  	
  Nature of Services

  	
  2

  
	
  Section 2.2

  	
  Transaction Management Fee and Reimbursement of Expenses

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
  TERM OF AGREEMENT

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
  DEPOSIT OF CUSTOMER
  COLLECTIONS

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
  REPRESENTATIONS AND
  WARRANTIES OF THE TRANSACTION MANAGER

  	
  9

  
	
  Section 5.1

  	
  Representations and Warranties

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
  COVENANTS OF THE
  TRANSACTION MANAGER

  	
  12

  
	
  Section 6.1

  	
  Covenants

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
  EVENTS OF DEFAULT

  	
  15

  
	
  Section 7.1

  	
  Transaction Manager Default

  	
  15

  
	
  Section 7.2

  	
  Termination of Transaction Manager

  	
  16

  
	
  Section 7.3

  	
  Appointment of Successor Transaction Manager

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
  MISCELLANEOUS

  	
  17

  
	
  Section 8.1

  	
  Notices

  	
  17

  
	
  Section 8.2

  	
  Entire Agreement

  	
  18

  
	
  Section 8.3

  	
  Severability

  	
  18

  
	
  Section 8.4

  	
  CONSENT TO JURISDICTION

  	
  18

  
	
  Section 8.5

  	
  Waiver of Jury Trial

  	
  19

  
	
  Section 8.6

  	
  Further Assurances

  	
  19

  
	
  Section 8.7

  	
  Amendments; Waivers

  	
  19

  
	
  Section 8.8

  	
  Third Party Beneficiaries

  	
  19

  
	
  Section 8.9

  	
  Successors and Assigns

  	
  20

  
	
  Section 8.10

  	
  No Bankruptcy Petition

  	
  20

  
	
  Section 8.11

  	
  Relationship of Parties

  	
  20

  
	
  Section 8.12

  	
  Limitation on Liability; Indemnity

  	
  20

  
	
  Section 8.13

  	
  Governing Law

  	
  21

  
	
  Section 8.14

  	
  Counterparts

  	
  21

  



 

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 8.15

  	
  Limitation on Payment

  	
  21

  
	
  Section 8.16

  	
  Status of Parties

  	
  21

  
	
  Section 8.17

  	
  Limitations on Authority

  	
  21

  
	
  Section 8.18

  	
  Headings and Captions

  	
  21

  



 


ii

















 


TRANSACTION MANAGEMENT
AGREEMENT


 


This
TRANSACTION MANAGEMENT AGREEMENT (the “Transaction Management Agreement”)
is dated as of May 28, 2008, and is by and among NUCO2 MANAGEMENT LLC, a Delaware limited liability
company (the “Transaction Manager”), NUCO2 FUNDING LLC,
a Delaware limited liability company (the “Master Issuer”), NUCO2 LLC, a Delaware limited liability company (the
“Contract Holder”), NUCO2 SUPPLY LLC, a
Delaware limited liability company (the “Equipment Holder”) and NUCO2 IP LLC, a Delaware limited liability company
(the “IP Holder” and together with Contract Holder and Equipment Holder,
the “Issuer Subsidiaries” and each an “Issuer Subsidiary”).


 


PRELIMINARY STATEMENT


 


WHEREAS,
the Transaction Manager, the Master Issuer and each of the Issuer Subsidiaries
desire to set forth the terms upon which the Transaction Manager will provide
the Transaction Management Services (as defined in Section 2.1(a) below)
and the Transaction Servicing Services (as defined in Section 2.1(c) below)
for the Master Issuer and the Issuer Subsidiaries.


 


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:


 


ARTICLE I.


 


DEFINITIONS


 


Section 1.1.  Defined
Terms.


 


(a)           Except as otherwise expressly provided
herein or unless the context otherwise requires, the capitalized terms used,
but not defined, herein shall have the respective meanings specified in Annex A
of that certain base indenture, dated as of May 28, 2008 by and among the
Master Issuer, the Issuer Subsidiaries and U.S. Bank National Association, as
trustee, administrative agent and securities intermediary, as supplemented
by that certain Series 2008-1 Supplement dated as of the same date
(collectively, the “Indenture”), which is incorporated herein by this reference.  The definitions of such terms are equally
applicable both to the singular and plural forms of such terms.  As used in this Agreement, “Intercompany
Agreement MAE” shall mean a material adverse effect on (i) the
business, assets, liabilities, condition (financial or otherwise), results of
operations or prospects of the Co-Issuers or (ii) the ability of the
Co-Issuers to perform (A) their obligations under any of the Intercompany
Agreements or (B) their obligations under the Customer Contracts (taken as
a whole). As used in
this Agreement, “Intercompany Agreement” shall mean any of this
Agreement, the Employee Services Agreement, the Securitization IP License
Agreement, the First Tier Contribution Agreement, the Delivery and Customer
Services Agreement, the Master Management Agreement, any Second-


 

















 


Tier Contribution
Agreement and any other agreement entered into by and between the Affiliates of
NuCO2 pursuant to or related to the Indenture.


 


(b)           All references
in this instrument to designated “Articles,” “Sections,” “Subsections” and
other subdivisions are to the designated Articles, Sections, Subsections and
other subdivisions of this instrument as originally executed or if amended or
supplemented, as so amended and supplemented. 
The words “herein,” “hereof,” “hereunder” and other words of similar
import refer to this Transaction Management Agreement as a whole and not to any
particular Article, Section, Subsection or other subdivision.  The words “including” and “include” shall be
deemed to be followed by the words “without limitation”.


 


ARTICLE II.


 


DUTIES OF THE TRANSACTION MANAGER


 


Section 2.1.  Nature of
Services.


 


(a)           Transaction
Management Services.  The Master
Issuer and each Issuer Subsidiary (collectively, the “Securitization
Entities” and each a “Securitization Entity”) hereby appoint the
Transaction Manager, as manager, to provide, and the Transaction Manager hereby
accepts such appointment and agrees to perform, all of the following services
(the “Transaction Management Services”) in accordance with the terms of
this Transaction Management Agreement, including the standards set forth in Section 2.1(b) hereof,
for the benefit of the Securitization Entities:


 


(i)            calculating and compiling information required in
connection with any report to be delivered by the Securitization Entities
pursuant to the Related Documents, except for certain reports prepared pursuant
to Section 2.1(c) hereof;


 


(ii)           preparing and filing of all tax returns, tax reports
and any other tax-related statements required to be prepared by any of the
Securitization Entities;


 


(iii)          monitoring industry conditions and advising the
Issuer Subsidiaries regarding the adoption of practices (including revisions to
collection and servicing policies) to meet changing needs of Customers;


 


(iv)          recommending and assisting in the implementation of
quality control standards;


 


(v)           advising the Securitization Entities regarding
business strategy and the continued development and expansion by the Contract
Holder of its Customer base and the products and services offered to such
Customers, including causing adequate capital, to the extent available, to be
expended in connection therewith;


 


2

















 


(vi)          complying with, or causing each of the
Securitization Entities to comply with and to perform, its obligations under
each of the Related Documents and the related Collateral Bulk Gases Business
Documents;


 


(vii)         performing the obligations and exercising the rights
of the Securitization Entities under the Third Party IP License Agreements;
acquiring, developing, maintaining, protecting and enforcing, and undertaking
such other duties and services as may be necessary in connection with, the
Securitization IP on behalf of the Securitization Entities; and taking all
reasonable measures to maintain confidentiality and to prevent non-confidential
disclosures of Know-How included in the Securitization IP and Know-How of each
of the Securitization Entities;


 


(viii)        performing or causing each of the Securitization
Entities to cause to be performed certain administrative services, including
bookkeeping and accounting services, payroll services and other services; and


 


(ix)           performing or causing each of the Securitization
Entities to perform all other matters in managing the Bulk Gases Business not
expressly reserved to the Securitization Entities.


 


The
list of Transaction Management Services may be amended from time to time by
mutual agreement of the Transaction Manager, the Master Manager and the
Securitization Entities; provided, that any amendment to reduce the scope of
existing Transaction Management Services shall require the prior consent of the
Control Party.


 


(b)           Transaction
Manager’s Standard of Performance for Transaction Management Services.  The Transaction Manager shall perform the Transaction Management Services in a
manner that (i)(A) is in accordance with the practices of NuCO2 Inc. immediately prior to the Closing Date and
(B) to the extent of changed circumstances, practices, technologies,
strategies or implementation methods, procedures and degrees of care, is at
least equal or superior to that employed by third parties generally recognized
as competent managers of businesses and assets of a nature reasonably similar
to those managed hereunder; (ii) would enable the Transaction Manager to
cause compliance by the Securitization Entities in all material respects with
all of the duties and obligations of the Securitization Entities under the
Related Documents and the Collateral Bulk Gases Business Documents; (iii) is
in compliance in all material respects with the Customer Contracts, Third Party
IP License Agreements, Delivery Truck Leases, Real Estate Leases, Supply
Contracts and other agreements and arrangements with Customers and other
parties; and (iv) is in compliance in all material respects with all
applicable Requirements of Law (collectively, the “Transaction Management
Standard”).  To the extent that the
Transaction Management Standard is modified as a result of a change described
in sub-clause (i)(B) of the definition thereof, such change will be
described in the next following Monthly Manager’s Certificate.


 


(c)           Transaction
Servicing Services.  The
Securitization Entities hereby appoint the Transaction Manager, as manager, to
provide, and the Transaction Manager hereby accepts such appointment and agrees
to perform, all of the following services (the “Transaction Servicing 


 


3

















 


Services”, together
with the Transaction Management Services, the “Transaction Services”) in
accordance with the standards set forth in Section 2.1(d) hereof,
as agent for and on behalf of the Securitization Entities:


 


(i)             establishing and maintaining
all deposit and other accounts required under, and in compliance with, the
Indenture Documents and taking all actions required of the Co-Issuers and/or
the Transaction Manager in connection with such accounts under the Indenture
Documents;


 


(ii)            calculating and compiling
financial information required in connection with each report or financial
statement to be delivered by the Co-Issuers or the Transaction Manager pursuant
to the Indenture, and requesting information from the Administrative Agent,
Trustee or other relevant party as may be necessary for such reports;


 


(iii)           preparing, executing and
delivering the Weekly Manager’s Certificate, the Monthly Manager’s Certificate,
each Noteholders’ Statement, each Quarterly Customer Contracts Report and each
Compliance Certificate, in reasonable detail as required by the Indenture, and
all directions for payments among the Co-Issuers, the Employee Company, in its
individual capacity and in its capacity as Transaction Manager and third
parties in accordance with the terms of the Related Documents;


 


(iv)           preparing each renewal
notice of the term for this Transaction Management Agreement, the Master
Management Agreement, the Delivery and Customer Services Agreement and the
Employee Services Agreement for execution by the party with the right of
renewal;


 


(v)            preparing and delivering
drawing notices with respect to advances under any Notes, and advising the
Co-Issuers of the conditions to such advances to be satisfied and assembling
and delivering all required deliverable items in satisfaction of such
conditions;


 


(vi)           managing all aspects of the
Co-Issuers’ rights and servicing all of the Co-Issuers’ obligations under the
e-payables and purchase card program currently existing with Bank of America
and each replacement therefor;


 


(vii)          performing such other
activities as are customarily performed by financial servicers; and


 


(viii)        performing such
other matters reasonably incidental to the foregoing.


 


(d)           Transaction
Manager’s Standard of Performance for Transaction Servicing Services.  The Transaction Manager shall perform the
Transaction Servicing Services (i) using a standard of care that (A) has
heretofore been employed by NuCO2 Inc. in the
servicing of its revolving financing facilities and term note issuances and (B) to
the extent of changed circumstances, practices, technologies, strategies or
implementation methods, procedures and degrees of care, is at least equal or
superior to that employed by third parties generally recognized as competent
servicers engaged in the business of delivering services similar to the
Transaction Servicing Services; (ii) would enable the Co-Issuers to comply
in all material respects with all of the Indenture Documents; and (iii) is
in compliance in all material respects with all applicable Requirements of Law
(collectively, the “Transaction Servicing Standard”).  


 


4

















 


To
the extent that the
Transaction Servicing Standard is modified as a result of a change described in
sub-clause (i)(B) of the definition thereof, such change shall be
described in the next following Monthly Manager’s Certificate.


 


(e)           Discretionary
Powers.  The Transaction Manager shall
exercise all discretionary powers involved in connection with the Transaction Services, subject to the
terms hereof, and shall be required to, except as may otherwise be provided
herein, pay at its sole cost and expense all costs and expenses incurred in
connection therewith that may be necessary or advisable for the carrying out of
the transactions contemplated by this Transaction Management Agreement.  The Transaction Manager may, for its own
account, seek the assistance of other Persons in carrying out any and all of
its duties hereunder and may enter into sub-management agreements in connection
therewith; provided, that the Transaction Manager will at all times remain
liable for the performance of the Transaction Services provided herein.


 


(f)            No Financial
Liability.  No
provision of this Transaction Management Agreement will require the Transaction
Manager to expend or risk its funds or otherwise incur any financial liability
in the performance of any of its rights or powers hereunder, if the Transaction
Manager has reasonable grounds for believing that repayment of such funds, or
adequate indemnity against such risk or liability, is not compensated by the
payment of the Transaction Management Fee or for the reimbursement of expenses
and is otherwise not reasonably assured or provided to it.  Further, the Transaction Manager will not be
obligated to perform any services not enumerated or otherwise contemplated
under this Transaction Management Agreement, unless the Transaction Manager
determines that it is more likely than not that it will be reimbursed for all
of its expenses incurred in connection with such performance.


 


(g)           Approvals.  Subject to the last paragraph of Section 2.1(a),
the Transaction Manager shall consult with and obtain approval from the Master
Issuer, Contract Holder, Equipment Holder or IP Holder, as the case may be, for
any action that is not within the scope of the Transaction Services.  The Transaction Manager shall not have any authority to
(A) enter into on behalf of a Securitization Entity (or cause such
Securitization Entity to enter into) (1) any contract in violation of any
provisions of the Related Documents or (2) any amendment, modification,
supplement or waiver, or consent under, any of the Related Documents, unless so
authorized by the written direction of such Securitization Entity, (B) enter
into any transaction requiring the prior approval of all or any Member of a
Securitization Entity under such Securitization Entity’s Organizational
Documents, (C) take any action pursuant to this Transaction
Management Agreement on behalf of the Securitization Entities which is
inconsistent with, or would cause any of the Securitization Entities to be in
breach of, a provision of any of the Related Documents or any Requirements of
Law.  Notwithstanding the foregoing, to the extent not
expressly delegated to the Transaction Manager hereunder, the Member of each
Securitization Entity retains full power and authority (subject to Section 6(c) of
the Replacement Management Agreement) to direct the management of such
Securitization Entity in accordance with its Organizational Documents and the
laws of the State of Delaware.


 


(h)           Principal Place
of Business.  All
activities hereunder by the Transaction Manager shall be conducted from the
Transaction Manager’s principal place of business identified in Section 8.1
hereof, or at such other location, provided the Securitization Entities,
the Rating 


 


5

















 


Agencies,
the Trustee, the Administrative Agent and the Replacement Manager are provided
30 days’ prior written notice with respect to such other location.


 


(i)            Registration
and Enforcement of the Securitization IP.  In furtherance of its duties hereunder, the
Transaction Manager shall perform the following duties, including,


 


(i)            As attorney-in-fact for IP Holder, the Transaction
Manager shall prosecute and maintain the applications and registrations held by
IP Holder and any future registrations resulting or derivative therefrom in the
United States, including by assuring the continued use of the applicable
Securitization IP as required by applicable Requirements of Law with the
exception of such Securitization IP that is no longer used in, or of benefit to
the business of the IP Holder or any of its licensees.  Nonetheless, ownership of the Securitization
IP and all goodwill generated by use of the Securitization IP by the
Transaction Manager shall inure to the benefit of IP Holder.  As between the Transaction Manager, on the
one hand, and the Securitization Entities, on the other hand, all Securitization
IP, including all After-Acquired IP Assets and all rights of the IP Holder
under the Third Party IP License Agreements, shall be owned or held exclusively
and separately by the IP Holder.  Nothing
herein shall be deemed to vest in the Transaction Manager any right, title or
interest, including any ownership interest, in or to the Securitization
IP.  The Transaction Manager shall assign
and transfer, and hereby does irrevocably assign, transfer, convey and relinquish
to the IP Holder all right, title and interest in and to any Securitization IP
that the Transaction Manager may acquire or develop and will take all measures
required or reasonably requested by the IP Holder to record any such
assignments at the Transaction Manager’s sole cost and expense.  All use of the Securitization IP hereunder,
and any goodwill arising from the use of the Trademarks included in the
Securitization IP hereunder, shall inure solely to the benefit of the IP
Holder, and the Transaction Manager agrees to execute any and all documents
that may be submitted to the Transaction Manager reasonably necessary to carry
out the intention of this covenant.  This
covenant shall survive termination of this Transaction Management Agreement for
any reason.  The Transaction Manager also
agrees that any Third Party IP License Agreement included in the After-Acquired
IP Assets shall be entered into in the name of the IP Holder and not the
Transaction Manager.


 


(ii)           The Transaction Manager shall neither assert nor
assist any third party in asserting any independent rights in the
Securitization IP (or any other designations confusingly similar thereto) in
the Territory for any goods or services. 
IP Holder shall provide written notice to the Transaction Manager if it
intends to abandon any applications for the registration of any Trademark.  The Transaction Manager acknowledges the
critical importance of exercising quality control over the nature and quality
of the goods and services offered under the Securitization IP in order to
preserve 


 


6

















 


the continued integrity and validity of the Securitization IP and to
protect the goodwill associated with the Securitization IP.  The Transaction Manager shall exercise
quality control over the use of the Securitization IP (including with respect
to the use of the Securitization IP by any sub-licensee) to a degree reasonably
necessary to maintain such quality.  The
Transaction Manager acknowledges the quality of the products heretofore sold or
provided under the Securitization IP and adopts and shall enforce the standards
of such quality.  The Transaction Manager
shall comply, and shall require all sub-licensees to comply, with all notice
and marking Requirements of Law or regulation applicable to or necessary for
the protection of the Securitization IP. 
The Transaction Manager and IP Holder shall notify each other promptly
after learning of a possible infringement of the Securitization IP or of any
imitation, unauthorized possession, knowledge, or use of the Securitization IP
or of any claim by a third party that the Securitization IP may be infringing
on the rights of a third party.


 


(iii)          The Transaction Manager shall be responsible for the
protection, policing and defense of the Securitization IP and shall take all
reasonable steps in this regard, including preparing and following up on demand
and notice letters and addressing third-party infringement of the
Securitization IP.


 


(iv)          IP Holder hereby authorizes the Transaction Manager
to institute legal proceedings against any third party that is reasonably
believed to be infringing the Securitization IP.  Furthermore, the Transaction Manager shall
defend any action brought by a third party against either IP Holder or the
Transaction Manager, or both, seeking to invalidate or otherwise challenging
the validity of any of the Securitization IP. 
The Transaction Manager shall bear all costs related to bringing or
defending any such action which shall be reimbursed to the Transaction Manager
by IP Holder as Operating Expenses.  The
Transaction Manager shall not settle or compromise any claim or action relating
to the Securitization IP without the prior consent of IP Holder.  IP Holder shall be entitled to any and all
settlement amounts, damages, license fees, and costs recovered or required to
be paid relating to the Securitization IP.


 


(v)           The IP Holder and the Transaction Manager expressly
agree that, to the fullest extent allowed by law, all Copyrights included in
any After-Acquired IP Assets created as a result of the Transaction Manager’s
services hereunder shall be considered a “work made for hire,” as that term is
defined in Section 101 of the United States Copyright Act, as amended, and
shall vest in the IP Holder as author. 
Any right, title and interest in and to the After-Acquired IP Assets,
whether copyrightable or not, including any works which may be deemed by
competent authority not to be “works made for hire” created pursuant to this
Transaction Management Agreement, are hereby assigned by the Transaction
Manager to the IP Holder.  The
Transaction Manager shall, at its own expense,


 


7














 


execute, and secure the execution or other written authorization from
the applicable authors retained by the Transaction Manager, of all Copyrights
or other transfer or conveyance of ownership in any such After-Acquired IP
Assets transferred to the IP Holder pursuant to this Transaction Management
Agreement.


 


(j)                                     License Grant.  (i) 
IP Holder grants to the Transaction Manager a non-exclusive, license in
and right to use the Securitization IP to the extent reasonably necessary for
the Transaction Manager to perform its obligations hereunder.  The Transaction Manager shall use the
Securitization IP licensed pursuant to this Section 2.1(j) subject
to the terms of the Related Documents and any other agreements relating to the
Securitization IP.  The foregoing license
grant shall extend to the Transaction Manager’s employees, agents and, solely
to the extent the same are permitted to perform obligations of the Transaction
Manager hereunder, independent contractors. 
Such license shall terminate on the date this Transaction Management
Agreement is terminated.  The fee for
such license shall be an amount equal to $25,000 payable to IP Holder on the
date hereof.


 


(ii)  The Transaction 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 Transaction
Management Agreement.  The Transaction
Manager acknowledges that it shall not acquire or claim adversely to the IP
Holder any right, title or interest in and to any of the Securitization IP or
any of the goodwill related thereto.  The
Transaction Manager acknowledges that each and every use of the Securitization
IP by the Transaction Manager under this Transaction Management Agreement and
any and all goodwill resulting from the Transaction Manager’s use of the
Securitization IP shall at all times inure to the benefit of the IP Holder, and
the Transaction Manager agrees to execute any and all documents that may be
submitted to the Transaction Manager reasonably necessary to carry out the
intention of this covenant.  This
covenant shall survive termination of this Transaction Management Agreement for
any reason.


 


Section 2.2.  Transaction
Management Fee and Reimbursement of Expenses.


 


(a)                                  As compensation
for the performance of the Transaction Management Services and the Transaction Servicing Services, the
Transaction Manager, or any Person operating on its behalf, shall be entitled
to receive and accrue to its benefit, the Transaction Management Fee.  The Transaction Management Fee will be
adjusted annually based on the CPI.  In
addition, the Transaction Manager, or any Person operating on its behalf, shall
be entitled to reimbursement of all expenses incurred by the Transaction
Manager.  The Transaction Management Fee and any
reimbursement of expenses shall be payable to the Transaction Manager, or any
Person operating on its behalf, solely pursuant to the terms hereof, and only
to the extent amounts are available for payment under, Section 5.13
of the Base Indenture.


 


(b)                                 Power of Attorney.  Subject to Section 6(c) of the
Replacement Management Agreement, so long as this Transaction
Management Agreement is in effect, each of the Master Issuer and each Issuer
Subsidiary hereby irrevocably constitutes and appoints the Transaction Manager,
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 Issuer, Contract Holder, Equipment Holder and IP Holder,
respectively, and in the name of the Master Issuer, 


 


8

















 


Contract Holder, Equipment Holder or IP
Holder, respectively, or in its own name, from time to time in the Transaction
Manager’s discretion, for the purpose of providing the Transaction Services in
accordance with the terms of this Transaction Management Agreement, and will
execute the power of attorney in the form attached hereto as Exhibit A,
which power of attorney shall terminate with respect to the Transaction Manager
in the event that the Transaction Manager’s rights under this Transaction
Management Agreement are terminated as provided for herein but shall be
effective for each successor Transaction Manager.


 


ARTICLE III.


 


TERM
OF AGREEMENT


 


The term of this Transaction Management
Agreement shall commence on the date hereof (the “Effective Date”) and,
except as provided in Article VII, shall expire on the last day of
each calendar month thereafter; provided, however, that the
Securitization Entities may renew this Transaction Management Agreement for the
following calendar month if they give the Transaction Manager prior written
notice of such election (which notice will be included in the Monthly Manager’s
Certificate which the Co-Issuers will provide to the Transaction Manager for
further delivery on the Co-Issuers’ behalf, as provided in Section 4.1(b) of
the Base Indenture).  Should the
Securitization Entities fail to deliver a written notice of renewal, the
Securitization Entities may, at any time prior to the end of the next calendar
month, deliver a notice to the Transaction Manager that they wish to reinstate
this Transaction Management Agreement, in which case this Transaction
Management Agreement shall be deemed to have been renewed for such calendar
month.  The Transaction Manager may
terminate this Transaction Management Agreement any time following the date
that the Indenture has been satisfied and discharged in accordance with the
terms thereof.


 


ARTICLE IV.


 


DEPOSIT
OF CUSTOMER COLLECTIONS


 


The Transaction Manager acknowledges and
agrees that all Customer Collections shall be the property of the Contract
Holder.  All Customer Collections
received by the Transaction Manager shall be deposited by the Transaction
Manager into the Concentration Account within two Business Days after receipt
thereof.


 


ARTICLE V.


 


REPRESENTATIONS
AND WARRANTIES OF THE TRANSACTION MANAGER


 


Section 5.1.  Representations
and Warranties.  The Transaction
Manager represents and warrants to and in favor of the Master Issuer and each
Issuer Subsidiary that as of the Effective Date:


 


(a)                                  Organization,
Power, Qualification.  The
Transaction Manager is a limited liability company duly organized, validly
existing and in good standing under the laws of Delaware, has the power, legal
right and authority to own its properties and to carry on its 


 


9

















 


business as now being and hereafter proposed
to be conducted and is duly qualified and is in good standing and authorized to
do business in each jurisdiction in which the character of its properties or
the nature of its business requires such qualification or authorization and the
failure to be so qualified would, individually or in the aggregate, have an
Intercompany Agreement MAE.


 


(b)                                 Authorization,
Enforceability.  The
Transaction Manager has the power, and has taken all necessary action to
authorize it to execute, deliver and perform this Transaction Management
Agreement in accordance with its terms and to consummate the transactions
contemplated hereby.  This Transaction
Management Agreement has been duly executed and delivered by the Transaction
Manager and is a legal, valid and binding obligation of the Transaction
Manager, enforceable in accordance with its terms, subject, as to enforcement
of remedies, to any applicable bankruptcy, insolvency or other similar law
affecting the enforcement of creditors’ rights and secured parties generally,
and subject to the limitation that the availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding therefor may be brought.


 


(c)                                  Non-Contravention.  The execution, delivery and performance of
this Transaction Management Agreement in accordance with its terms and the
consummation of the transactions contemplated hereby by the Transaction Manager
do not and will not (i) require any consent or approval of any Person,
except for consents and approvals that have already been obtained, (ii) violate
any Requirements of Law, (iii) conflict with, result in a breach of, or
constitute a default under its Organization Documents, as the same may have
been amended or restated, or conflict with, result in a breach of or constitute
a default under (with or without notice or lapse of time or both) any indenture,
agreement or other instrument, to which the Transaction Manager is a party or
by which it or any of its properties or assets may be bound, which conflict,
breach or default would have an Intercompany Agreement MAE, or (iv) result
in or require the creation or imposition of any Lien upon or with respect to
any property now owned or hereafter acquired by the Transaction Manager except
the Lien in favor of the Noteholders under the Indenture.


 


(d)                                 No Litigation.  There is no pending action, suit, proceeding or
investigation, against or affecting the Transaction Manager before any court,
administrative agency, arbitrator or governmental body or, to the best
knowledge of the Transaction Manager, any threatened action or proceeding,
against or affecting the Transaction Manager before any of the foregoing which,
if decided adversely to the Transaction Manager, would have an Intercompany
Agreement MAE.  The Transaction Manager
is not subject to any material order of any court, governmental authority or
agency or arbitration board or tribunal.


 


(e)                                  Governmental
Regulation.  No consent,
order or other action of, or filing with, any Governmental Authority is
required by the Transaction Manager in connection with the execution, delivery
and performance of this Transaction Management Agreement, except those that
have been obtained or made or where the failure to so obtain or make would not
have an Intercompany Agreement MAE.


 


(f)                                    Investment
Company.  The Transaction Manager is not
an “investment company” within the meaning of the Investment Company Act.


 


10

















 


(g)                                 Bankruptcy.  The Transaction Manager is not a debtor in a
bankruptcy case.


 


(h)                                 Absence of
Default.  The Transaction Manager is in
compliance with all of the provisions of its Organizational Documents, as the
same may have been amended or restated (or comparable constitutive documents)
and no event has occurred, or failed to occur, which has not been remedied or
waived, the occurrence or nonoccurrence of which constitutes, or which with the
passage of time or giving of notice or both would constitute, (i) a
Transaction Manager Default or (ii) a default by the Transaction Manager
under any agreement or other instrument, or any judgment, decree or order to
which the Transaction Manager is a party or by which the Transaction Manager or
any of its properties or assets may be bound, which default would have an
Intercompany Agreement MAE.


 


(i)                                     Taxes.  The Transaction Manager has timely filed all
tax returns (federal, state and local) which are required to be filed and has
paid all taxes related thereto where the failure to do so would have an
Intercompany Agreement MAE.  There has
been no waiver of any statutes of limitation in respect of taxes or agreement
to any extension of time with respect to a tax assessment or deficiency of the
Transaction Manager; there is no claim, audit, action, suit or proceeding
against or with respect to the Transaction Manager in any tax; the Transaction
Manager has not received from any taxing authority any formal or informal (i) notice
indicating an intent to open an audit or other review, (ii) request for
information related to tax matters or (iii) notice of deficiency or
proposed adjustment for any amount of tax proposed, asserted or assessed by any
taxing authority against the Transaction Manager.


 


(j)                                     Defaults.  The Transaction Manager has no knowledge of
any Transaction Manager Default or Indenture Event of Default or any event
which the Transaction Manager reasonably believes will result in the occurrence
of an Indenture Event of Default or Transaction Manager Default.


 


(k)                                  Subsidiaries.  There are no corporations, partnerships,
limited liability companies, joint ventures or other business entities in which
the Transaction Manager owns, of record or beneficially, a direct or indirect
equity interest or contract or agreement, contingent or otherwise, to acquire
the same.


 


(l)                                     Insurance. The Transaction Manager has the insurance set forth
on Schedule 5.1(l) hereto, with financially sound insurers, and
such insurance provides coverage against such risks and on such amounts
(subject to deductibles) as is customary for business operations of the type
conducted by the Transaction Manager.


 


(m)                               No ERISA Plan. 
Neither the Transaction Manager nor any corporation or trade, business,
organization or other entity (whether or not incorporated) that would be
treated together with any Securitization Entity as a single employer under Section 414(b),
(c), (m) or (o) of the Code or Section 4001(a)(14) of ERISA has
established, maintains, contributes to, or has any liability in respect of (or
has in the past six years established, maintained, contributed to, or had any
liability in respect of) any Plan.  No
corporation or trade, business, organization or other entity (whether or not
incorporated) that is a member of a Controlled Group which includes the
Transaction Manager has any contingent liability with respect to any
post-retirement welfare 


 


11

















 


benefits under a Welfare Plan, other than liability for continuation
coverage described in Part 6 of Subtitle B of Title I of ERISA or other
applicable continuation of coverage laws.


 


ARTICLE VI.


 


COVENANTS
OF THE TRANSACTION MANAGER


 


Section 6.1.  Covenants.  So long as this Transaction Management
Agreement remains in effect:


 


(a)                                  Annual Accountants’ Reports. 
As soon as available, the Transaction Manager shall furnish, or cause to
be furnished, to the Trustee, the Administrative Agent and the Rating Agencies
the Annual Accountants’ Reports received from the Master Manager pursuant to Section 6.1(b) of
the Master Management Agreement.


 


(b)                                 Notices.  The
Transaction Manager will give prompt notice in a manner consistent with Section 8.1
hereof (A) to the Trustee and the Administrative Agent of (i) an
Indenture Event of Default of which the Transaction Manager has actual
knowledge, (ii) a Transaction Manager Default of which the Transaction
Manager has actual knowledge, and (iii) any event of which the Transaction
Manager has actual knowledge that the Transaction Manager reasonably believes
will result in the occurrence of an Indenture Event of Default or Transaction
Manager Default if not cured or waived within any relevant grace period (such
notice, a “Notice of Default”) and (B) to the applicable Rating
Agencies, with respect to any amendment to this Transaction Management
Agreement, other than clerical or administrative amendments.


 


(c)                                  Company
Existence; Governing Documents.  The Transaction Manager will keep in full
force and effect its existence and rights as a limited liability company under
the laws of its state of organization and will obtain and preserve its
qualification to do business in each jurisdiction in which such qualification
is or shall be necessary to protect the validity and enforceability of this
Transaction Management Agreement.  The
Transaction Manager shall maintain its existence separate and distinct from the
Master Issuer and the Issuer Subsidiaries.


 


(d)                                 Modification of
Customer Contract Origination Practices.  The Transaction Manager agrees that
immediately prior to the Effective Date, one of NuCO2 Inc.’s
objectives was the development and maintenance of relationships with Customers
pursuant to Customer Contracts that are (i) written and (ii) of a
long term nature.  The Transaction
Manager agrees to cause the Equipment Holder or the Contract Holder to maintain
the practice, with respect to all or a substantial portion of new and existing
Customer Contracts, of (i) having written Customer Contracts and (ii) unless
the Transaction Manager determines, in accordance with the Transaction
Management Standard, that it is not commercially reasonable or practicable to
do so, having Customer Contracts of a long term nature.  Nothing in this Section 6.1(d) shall
prohibit the Transaction Manager from allowing (subject to the Transaction
Management Standard) the Contract Holder or the Equipment Holder, on a case by
case basis, to originate individual new Customer Contracts of a short term
nature or modify individual existing Customer Contracts to shorten the term
thereof.


 


12

















 


(e)                                  Requirements of
Law.  If the grant by the Master
Issuer, the Contract Holder, the Equipment Holder and the IP Holder of the
first priority perfected security interests under the Indenture, or any portion
or aspect thereof, requires any further approval, perfection or compliance with
any Requirements of Law or administrative rule, or shall be prohibited under or
in violation of any Requirements of Law or administrative rule, the Transaction
Manager agrees to cause the Master Issuer, the Contract Holder, the Equipment
Holder and the IP Holder, as applicable, to do all things and, at its expense,
to take all action reasonably necessary or advisable to obtain all such
approvals and to accomplish such perfection or compliance, and/or expeditiously
to remove any prohibition and cure any violation, so as to effectuate to the
fullest extent permissible by law the entire security interest granted under the
Indenture.


 


(f)                                    No Liens.  The Transaction Manager shall not create,
incur, assume or suffer to exist any Lien upon or with respect to any property
or assets of any kind of the Master Issuer, the Contract Holder, the Equipment
Holder and the IP Holder other than the Lien of the Indenture and any other
Related Documents and Permitted Liens.


 


(g)                                 Inspection.  At any time and from time to time, the
Transaction Manager shall permit the Master Issuer, the Contract Holder, the
Equipment Holder, the IP Holder, the Administrative Agent, or their respective
agents or representatives, during regular business hours and upon five Business
Days’ prior written notice (but not more often than two times in any twelve
month period so long as no Transaction Manager Default has occurred and is
continuing):  (i) to examine and
make copies of and abstracts from the books and records (financial and
corporate) of the Transaction Manager, insofar as they relate to the assets of
the Issuer Subsidiaries or its duties hereunder as Transaction Manager, (ii) to
visit the offices and properties of the Transaction Manager for the purpose of
examining such books and records and to discuss matters relating thereto and to
the performance of the Transaction Manager under this Transaction Management
Agreement with any of the officers or employees of the Transaction Manager
having knowledge of such matters and (iii) to monitor the quality of
products and services marketed under or in connection with the Securitization
IP.


 


(h)                                 Securitization
IP Notices.  The
Transaction Manager shall notify the IP Holder and the Trustee promptly (i) if
it knows or reasonably believes that any pending application for registration
or recording of a material Trademark or a registration or recording of a
material Trademark may become forfeited, abandoned or dedicated to the public,
or of any material adverse determination or development (including any
proceeding in the PTO or any court or tribunal in any country); and (ii) of
any claim by a third party that the Trademarks may be materially infringing on
the rights of a third party in the United States.


 


In the event that any material Securitization
IP is infringed, misappropriated, diluted or violated by a third party, the
Transaction Manager shall notify the IP Holder and the Trustee promptly after
the Transaction Manager has actual knowledge of such circumstance.


 


(i)                                     The Transaction
Manager Not To Resign; No Assignment.


 


(i)                                     The Transaction Manager
shall not resign from the duties and obligations hereby imposed on it except
upon a determination by the Master Issuer and each Issuer Subsidiary that by
reason of a change in applicable legal 


 


13

















 


requirements, the continued performance by the Transaction Manager of
its duties under this Transaction Management Agreement would cause it to be in
material violation of such legal requirements (i.e., requirements pursuant to
law or regulation, rather than contractual), said determination to be evidenced
by an opinion of counsel to such effect.


 


(ii)                                  The Transaction Manager may
not assign this Transaction Management Agreement, without the prior written
consent of the Master Issuer and each Issuer Subsidiary.


 


(iii)                               Except as provided in this Section 6.1(i) or
in Sections 7.2 and 7.3, the duties and obligations of the
Transaction Manager under this Transaction Management Agreement shall continue
until this Transaction Management Agreement shall have been terminated as
provided in Articles III and VII, and shall survive the exercise
by the Master Issuer, the Contract Holder, the Equipment Holder or the IP
Holder of any right or remedy under this Transaction Management Agreement, or
the enforcement by the Master Issuer, the Contract Holder, the Equipment Holder
or  the IP Holder of any provision of
this Transaction Management Agreement. 
The Transaction Manager shall continue to serve as Transaction Manager
hereunder until such time as a successor shall be appointed and assume the
duties of Transaction Manager hereunder.


 


(j)                                     Insurance. The
Transaction Manager shall maintain, or cause the Master Issuer and the Issuer
Subsidiaries to maintain, as applicable, with financially sound insurers,
insurance coverages customary for business operations of the type conducted in
respect of the transactions contemplated by the Related Documents and the
assets of the Issuer Subsidiaries.  The
Transaction Manager shall annually provide to the Trustee, the Administrative
Agent and the Replacement Manager evidence that the insurance required to be
maintained by the Transaction Manager, the Master Issuer and the Issuer
Subsidiaries hereunder is in full force and effect, by not later than July 31
of each calendar year.  The Transaction
Manager shall forward to the Trustee, within 5 Business Days of receipt, any notices
received indicating that any insurance maintained by the Master Issuer and the
Issuer Subsidiaries will lapse.


 


(k)                                  Taxes.  The Transaction Manager shall, and shall
cause the Master Issuer, the Contract Holder, the Equipment Holder and the IP
Holder to, (i) pay all Taxes when due or payable, together with any
interest or penalty, addition to tax or additional amount imposed thereon or in
connection therewith, (ii) file, when due, all tax returns, statements,
reports or forms required to be filed with any taxing authority and (iii) except
for consolidated tax returns, not become, or permit itself to become, liable
for the Taxes of any other Person or entity, whether by contract, operation of
law or otherwise.


 


(l)                                     Maintain
Business.  The
Transaction Manager shall cause the Contract Holder, the Equipment Holder and
the Employee Company to be primarily engaged in the Bulk Gases Business.


 


14

















 


(m)                               Information. 
All written information, reports and other papers and data furnished by
the Transaction Manager hereunder shall be, at the time the same is so
furnished, true and correct in all material respects.


 


(n)                                 Default.  The
Transaction Manager shall not willfully cause the Securitization Entities to
default under the Related Documents.


 


ARTICLE VII.


 


EVENTS
OF DEFAULT


 


Section 7.1.  Transaction
Manager Default.  Each of the
following shall constitute a “Transaction Manager Default”:


 


(a)                                  the Transaction
Manager shall fail to deliver (i) the Manager’s Certificates, the
Noteholders’ Statement and the Compliance Certificate within one Business Day
after the date that such report is due or (ii) any other report required
to be delivered by the Transaction Manager under the Related Documents within
five Business Days after the date that such report is due; or


 


(b)                                 the Transaction
Manager shall fail within two Business Days after receipt thereof, to remit or
cause to be remitted to the Concentration Account, or as otherwise directed by
the Contract Holder, any Customer Collections received by it; or


 


(c)                                  default in the
performance, or breach, of any covenant of the Transaction Manager in this
Transaction Management Agreement (not referenced in clause (b) above), and
where such default or breach continues for a period of 30 days after the
earlier of (i) the date on which an officer of the Transaction Manager
first has actual, personal knowledge of such default or breach and (ii) the
date on which a Notice of Default, specifying in reasonable detail, such
default or breach and requiring it to be remedied shall have been given to the
Transaction Manager; or


 


(d)                                 a failure of
any representation or warranty of the Transaction Manager in this Transaction
Management Agreement to be true and correct in all material respects as and
when made, which, if susceptible of being cured, remains uncured 30 days after
the earlier of (i) the date on which an officer of the Transaction Manager
first has actual, personal knowledge of such failure  and (ii) the date on which a Notice of
Default, specifying in reasonable detail, such failure and requiring it to be
remedied shall have been given to the Transaction Manager; or


 


(e)                                  the entry of a
decree or order for relief by a court having jurisdiction in respect of the
Transaction Manager in an involuntary case under the federal bankruptcy laws,
as now or hereafter in effect, or any other present or future federal or state
bankruptcy, insolvency or similar law, or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Transaction Manager or of any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Transaction Manager and the
continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days; or


 


15

















 


(f)                                    the
commencement by the Transaction Manager of a voluntary case under the federal
bankruptcy laws, as now or hereafter in effect, or any other present or future
federal or state bankruptcy, insolvency or similar law, or the consent by the
Transaction Manager to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Transaction Manager or any substantial part of its property or
the making by the Transaction Manager of an assignment for the benefit of
creditors or the failure by the Transaction Manager generally to pay its debts
as such debts become due or the taking of action by the Transaction Manager in
furtherance of any of the foregoing; or


 


(g)                                 a final
non-appealable judgment shall be entered by any court against the Transaction
Manager (i) for the payment of money the uninsured portion of which,
together with the uninsured portion of all other outstanding final
non-appealable judgments against the Transaction Manager, exceeds $15,000,000
in the aggregate and either (A) such judgment is not discharged within the
period of 30 days after entry thereof or (B) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment shall not
be in effect or (ii) for equitable or injunctive relief that has an
Intercompany Agreement MAE.


 


Section 7.2.  Termination
of Transaction Manager.


 


(a)                                  In the event of
a Transaction Manager Default or at any time during a Hot Back-Up Services
Period (as defined in the Replacement Management Agreement), the Securitization
Entities shall have all rights and remedies against the Transaction Manager as
may exist at law or in equity, and in such event or period, as applicable, any
Securitization Entity (at the direction of the Control Party or the Replacement
Manager) may by notice then given in writing to the Transaction Manager (a “Transaction
Manager Termination Notice”), terminate all or any part of the rights and
obligations of the Transaction Manager under this Transaction Management
Agreement.


 


(b)                                 After receipt
by the Transaction Manager of a Transaction Manager Termination Notice, on the
date that a successor Transaction Manager shall have been appointed by the
Securitization Entities pursuant to Section 7.3, all authority and power
of the Transaction Manager under this Transaction Management Agreement shall
pass to and be vested in such successor Transaction Manager (a “Transaction
Management Transfer”).  The
Transaction Manager agrees to cooperate with the Securitization Entities and
the successor Transaction Manager in effecting the termination of the
responsibilities and rights of the Transaction Manager to conduct the Transaction
Services hereunder, including, without limitation, the transfer to such
successor Transaction Manager of all authority of the Transaction Manager to
conduct the Transaction Services.  The
Transaction Manager shall promptly (x) assemble all of the Transaction
Manager’s documents (including copies of all Customer Contracts), instruments
and other records (including files, licenses, rights, copies of all relevant
computer programs and any necessary licenses for the use thereof, related
material, computer tapes, disks, cassettes and data) that are necessary or
desirable to enable the successor Transaction Manager to effect the immediate
performance of the Transaction Services hereunder, with or without the
participation of the Master Issuer, the Issuer Subsidiaries or the Transaction
Manager, and (y) either (i) deliver all of the foregoing documents,
instruments and other records to the successor Transaction Manager at a place
designated by it or (ii) grant a license to (x) occupy and use the
premises 


 


16

















 


where all of the foregoing documents,
instruments and other records are located and (y) access such documents,
instruments and other records.


 


(c)                                  Within 30 days
of termination of this Transaction Management Agreement for any reason, the
Transaction Manager shall deliver and surrender up to the IP Holder any and all
products, materials or other physical objects containing the Trademarks
included in the Securitization IP or Confidential Information of the IP Holder
and any copies of copyrighted works included in the Securitization IP in the
Transaction Manager’s possession or control, and shall terminate all use of all
Securitization IP, including trade secrets.


 


(d)                                 All costs and
expenses incurred by the Transaction Manager, the successor Transaction
Manager, the Master Issuer and the Issuer Subsidiaries in connection with any
Transaction Management Transfer shall be reimbursed pursuant to the terms, and
to the extent of amounts available for payment under, Section 5.13
of the Base Indenture.


 


(e)                                  The parties
hereto each agree that the successor Transaction Manager shall be selected in
accordance with the terms of the Replacement Management Agreement.  In the event of any conflict between this
Management Agreement and the Replacement Manager Agreement, the Replacement
Management Agreement shall control.


 


Section 7.3.  Appointment
of Successor Transaction Manager.


 


(a)                                 On and after
the date of receipt by the Transaction Manager of a Transaction Manager
Termination Notice pursuant to Section 7.2  or the Transaction Manager’s resignation in
accordance with the terms of this Transaction Management Agreement, the
Transaction Manager shall continue to perform all Transaction Services
hereunder, until (i) in the case of termination the date specified in such
Transaction Manager Termination Notice or, if no such date is specified in such
Transaction Manager Termination Notice or is otherwise specified by the
Securitization Entities (acting at the direction of the Control Party or the
Replacement Manager) or (ii) a date mutually agreed up by the Transaction
Manager and the Securitization Entities, and in the case of resignation, is the
date upon which the predecessor Transaction Manager shall become unable to act
as Transaction Manager, as specified in the notice of resignation.  The Securitization Entities (acting at the
direction of the Control Party or the Replacement Manager) shall as promptly as
possible after the giving of a Transaction Manager Termination Notice or receiving
notice of the Transaction Manager’s resignation, appoint a successor
Transaction Manager.


 


ARTICLE VIII.


 


MISCELLANEOUS


 


Section 8.1.                      Notices.  All notices from one party to the other party
shall be in writing and shall be sent to the other party’s address by (a) delivery
by a reputable courier service or by certified mail (return receipt requested)
or (b) by facsimile transmission (or the equivalent transmission providing
written confirmation of receipt at the facsimile number of the addressee) with
a copy sent in either manner described in clause (a), all charges prepaid.  The date of receipt or refusal to accept
shall be the effective date of any such notice.


 


17






 










 


	
  Master Issuer

  NuCO2 Funding LLC

  2800 S.E. Market Place

  Stuart, FL 34997

  Attention: General Counsel

  	
   

  	
  The Transaction Manager

  NuCO2 Management LLC

  2800 S.E. Market Place

  Stuart, FL 34997

  Attention: General Counsel

  
	
   

  	
   

  	
   

  
	
  Contract Holder

  NuCO2 LLC

  2800 S.E. Market Place

  Stuart, FL 34997

  Attention: General Counsel

  	
   

  	
  Equipment Holder

  NuCO2 Supply LLC

  2800 S.E. Market Place

  Stuart, FL 34997

  Attention: General Counsel

  
	
   

  	
   

  	
   

  
	
  IP Holder

  NuCO2 IP LLC

  2800 S.E. Market Place

  Stuart, FL 34997

  Attention: General Counsel

  	
   

  	
  Trustee

  U.S. Bank National Association

  EP-MN-WS3D

  60 Livingston Avenue

  St. Paul, MN 55107

  Attention: Structured Finance/NuCO2

  
	
   

  	
   

  	
   

  
	
  Moody’s

  Moody’s Investors Service, Inc.

  7 World Trade Center

  250 Greenwich Street, 25th Floor

  New York, NY 10007

  Attention: ABS/RMBS Monitoring Department

  Facsimile: 212-553-0573

  	
   

  	
  Fitch

  Fitch, Inc.

  70 W. Madison, Suite 1100

  Chicago, IL 60602

  Attention: ABS Surveillance - New Assets

  Facsimile: 312-368-2069

  



 


Section 8.2.  Entire
Agreement.  This Transaction
Management Agreement and the other Related Documents set forth the entire
agreement and understanding among the parties with reference to the
transactions contemplated hereby and supersede any and all other oral or
written agreements heretofore made.


 


Section 8.3.  Severability.  If any provision of this Transaction
Management Agreement or the application of any provision hereof to any Person
or in any circumstances is held invalid, the remainder of this Transaction
Management 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 Transaction
Management Agreement.


 


Section 8.4.  CONSENT TO
JURISDICTION.


 


EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS
TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN
NEW YORK CITY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
TRANSACTION MANAGEMENT AGREEMENT OR ANY OTHER RELATED DOCUMENT, AND HEREBY IRREVOCABLY
AGREES THAT ALL 


 


18

















 


CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO THE
SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING,
OR DELIVERY, OF COPIES OF SUCH PROCESS TO SUCH PARTY AT ITS ADDRESS SPECIFIED
IN SECTION 8.1 HEREOF.  EACH
PARTY AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.


 


Section 8.5.  Waiver of
Jury Trial.  The parties hereto each
waive their respective rights to a trial by jury of any claim or cause of
action based upon or arising out of or related to this Transaction Management
Agreement, or the transactions contemplated hereby, in any action, proceeding
or other litigation of any type brought by any of the parties against any other
party or parties, whether with respect to contract claims, tort claims, or
otherwise.  The parties hereto each agree
that any such claim or cause of action shall be tried by a court trial without
a jury.  Without limiting the foregoing,
the parties further agree that their respective right to a trial by jury is
waived by operation of this Section 8.5 as to any action,
counterclaim or other proceeding which seeks, in whole or in part, to challenge
the validity or enforceability of this Transaction Management Agreement or any
provision hereof.  This waiver shall
apply to any subsequent amendments, renewals, supplements or modifications to
this Transaction Management Agreement.


 


Section 8.6.  Further
Assurances.  The Transaction Manager
shall furnish to each of the Master Issuer and each Issuer Subsidiary any
further instruments, in form and substance reasonably satisfactory to it, which
it may reasonably require or deem necessary, from time to time, to evidence,
establish, protect, enforce, defend or secure it and any and all of its rights
hereunder.


 


Section 8.7.  Amendments;
Waivers.  Any term, covenant,
agreement or condition of this Transaction Management Agreement may only be
amended with the consent of the Transaction Manager, the Master Issuer and each
Issuer Subsidiary or compliance therewith may be waived (either generally or in
a particular instance and either retroactively or prospectively) by the Master
Issuer and each Issuer Subsidiary and in any such event the failure to observe,
perform or discharge any such covenant, condition or obligation (whether such
amendment is executed or such consent or waiver is given before or after such
failure) shall not be construed as a breach of such covenant, condition or
obligation or as a Transaction Manager Default.


 


Section 8.8.  Third Party Beneficiaries.  Each of the Control Party and the Replacement
Manager is an intended third party beneficiary of this Transaction Management
Agreement and may exercise the rights of the Transaction Manager and each of
the Co-Issuers, and enforce the obligations of the Transaction Manager and each
of the Co-Issuers hereunder, in each case 


 


19

















 


without the consent of
either the Transaction Manager or any of the Co-Issuers, provided that such
action shall be in accordance with the terms of the Replacement Management
Agreement.


 


Section 8.9.  Successors
and Assigns.  This Transaction
Management Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto.  All agreements, statements, representations
and warranties made by the Transaction Manager herein or in any certificate or
other instrument delivered by the Transaction Manager or on its behalf under
this Transaction Management Agreement shall be considered to have been relied
upon by the Master Issuer and each Issuer Subsidiary and shall survive the
execution and delivery of this Transaction Management Agreement.  The Transaction Manager acknowledges and agrees that
the rights of the Securitization Entities hereunder will be pledged to the
Trustee pursuant to the Indenture.


 


Section 8.10.  No
Bankruptcy Petition.  The Transaction
Manager by entering into this Transaction Management Agreement covenants and
agrees that, prior to the date which is one year and one day after the full
satisfaction and discharge of the Indenture in accordance with the terms
thereof, it will not institute against, or join any other Person in instituting
against the Master Issuer or any Issuer Subsidiary any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any federal or state bankruptcy or similar law.


 


Section 8.11.  Relationship
of Parties.  Except as provided in Section 8.15
of this Agreement, nothing contained in this Transaction Management Agreement
is intended to create, or shall in any event or under any circumstance be
construed as creating, a partnership, joint venture, tenancy-in-common, joint
tenancy, agency or other relationship of any nature whatsoever between the
Master Issuer and the Issuer Subsidiaries, on the one hand, and the Transaction
Manager, on the other hand.  The
Transaction Manager acknowledges that (a) the Transaction Manager is
represented by competent counsel and has consulted counsel before executing
this Transaction Management Agreement and (b) it has relied solely on its
own judgment and advisors in entering into the transactions contemplated
hereby.


 


Section 8.12.  Limitation
on Liability; Indemnity.  (a) None
of the members, managers, directors, officers, employees or agents of the
Transaction Manager shall be under any liability to the Master Issuer, the
Contract Holder, the Equipment Holder, the IP Holder, or any other Person for
any action taken or for refraining from the taking of any action taken in good
faith pursuant to this Transaction Management Agreement; provided, however,
that this provision shall not protect the Transaction Manager against any
liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or gross negligence in the performance of its duties hereunder.


 


(b)                                 Notwithstanding the
foregoing, the Transaction Manager hereby agrees to indemnify and hold harmless
each of the Master Issuer, the Contract Holder, the Equipment Holder and the IP
Holder, each successor and assign of the Master Issuer, the Contract Holder,
the Equipment Holder and the IP Holder, as the case may be, and each of their
respective officers, directors, affiliates, agents and representatives from and
against any claim, loss, liability, damage, settlement, cost or other expense
including reasonable attorney’s fees and expenses that arise out of, relate to
or are in connection with any negligent act or any negligent 


 


20

















 


failure to act of the Transaction Manager in the performance of its
duties hereunder or any breach by the Transaction Manager of any
representation, covenant or other provision hereunder.


 


This Section 8.12 shall survive termination of this
Transaction Management Agreement.


 


Section 8.13.  Governing
Law.


 


THIS TRANSACTION MANAGEMENT AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW, OTHER THAN
SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK.


 


Section 8.14.  Counterparts.  This Transaction Management Agreement may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.


 


Section 8.15.  Limitation
on Payment.  Any and all payments,
including but not limited to fees, expenses and costs, to be made to the
Transaction Manager under this Transaction Management Agreement shall be made
only to the extent of funds available therefor in accordance with Section 5.13
of the Base Indenture.


 


Section 8.16.  Status of
Parties.  The Transaction Manager is
authorized pursuant to this Transaction Management Agreement to act as the
authorized agent of the Master Issuer and the Issuer Subsidiaries for the
purposes set forth in this Transaction Management Agreement.


 


Section 8.17.  Limitations
on Authority.  Except as expressly
set forth herein, the Transaction Manager shall not be authorized to manage the
affairs of the Master Issuer, the Contract Holder, the Equipment Holder or the
IP Holder.  The management, policies, and
operations of the Master Issuer, the Contract Holder, the Equipment Holder and
the IP Holder shall be the responsibility of the Master Issuer, Contract
Holder, the Equipment Holder and the IP Holder, respectively, and officers of
the Master Issuer, the Contract Holder, the Equipment Holder and the IP Holder,
respectively, acting pursuant to and in accordance with their respective
Organizational Documents and other applicable documents.


 


Section 8.18.  Headings
and Captions.  The headings or
captions in this Transaction Management Agreement are inserted for convenience
and identification only and are in no way intended to describe, interpret,
define, or limit the scope, extent, or intent of this Transaction Management
Agreement or any provisions thereof.


 


[Remainder of Page Intentionally Left
Blank]


 


21

















 


IN WITNESS WHEREOF, this Transaction
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 Management LLC, as Transaction Manager

  
	
   

  	
   

  
	
   

  	
  By:

  	
  NuCO2 Inc., its Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Eric M. Wechsler

  
	
   

  	
   

  	
  Name:

  	
  Eric M. Wechsler

  
	
   

  	
   

  	
  Title:

  	
  General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NuCO2
  Funding LLC, as Master Issuer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  NuCO2
  Inc., its Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Eric M. Wechsler

  
	
   

  	
   

  	
  Name:

  	
  Eric M. Wechsler

  
	
   

  	
   

  	
  Title:

  	
  General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NuCO2
  LLC, as Contract Holder

  
	
   

  	
   

  
	
   

  	
  By:

  	
  NuCO2
  Funding LLC, its Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NuCO2
  Inc., its Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Eric M. Wechsler

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Eric
  M. Wechsler

  
	
   

  	
   

  	
   

  	
  Title:

  	
  General
  Counsel

  



 


[SIGNATURE PAGE
CONTINUES]


 

















 


	
   

  	
  NuCO2
  Supply LLC, as Equipment Holder

  
	
   

  	
   

  
	
   

  	
  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 IP Holder

  
	
   

  	
   

  
	
   

  	
  By:

  	
  NuCO2
  Funding LLC, its Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NuCO2
  Inc., its Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Eric M. Wechsler

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Eric
  M. Wechsler

  
	
   

  	
   

  	
   

  	
  Title:

  	
  General
  Counsel

  



 

















 


EXHIBIT A


 


POWER OF ATTORNEY


 


LIMITED POWER OF ATTORNEY (SPECIAL)


 


KNOW ALL MEN BY THESE
PRESENTS, that each of NuCO2 Funding LLC
(the “Master Issuer”),  NuCO2 LLC  (the “Contract Holder”),  NuCO2 Supply
LLC  (the “Equipment Holder”)  and  NuCO2 IP
LLC  (the “IP Holder”)  in its full capacity under
the Transaction Management Agreement (the “Transaction Management Agreement”),
dated as of May 28, 2008, by and between NuCO2 Management
LLC, as transaction manager (the “Transaction Manager”), the Master
Issuer, the Contract Holder, the Equipment Holder and the IP Holder, does
hereby nominate, constitute and appoint the Transaction 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 Transaction Manager to
provide the Transaction Services in accordance with the terms of the Transaction
Management Agreement, giving and granting unto the Transaction 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 Transaction 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 Transaction
Management Agreement.


 


1

















 


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


	
   

  	
  NuCO2
  Funding LLC, as Master Issuer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  NuCO2
  Inc., its Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NuCO2
  LLC, as Contract Holder

  
	
   

  	
   

  
	
   

  	
  By:

  	
  NuCO2
  Funding LLC, its Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NuCO2
  Inc., its Member

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NuCO2
  Supply LLC, as Equipment Holder

  
	
   

  	
   

  
	
   

  	
  By:

  	
  NuCO2
  Funding LLC, its Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NuCO2
  Inc., its Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NuCO2
  IP LLC, as IP Holder

  
	
   

  	
   

  
	
   

  	
  By:

  	
  NuCO2
  Funding LLC, its Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NuCO2
  Inc., its Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 

















 


Schedule 5.1(l)


 


INSURANCE


 


	
  Policy

  	
   

  	
  Primary Insured

  	
   

  	
  Co-Insureds

  
	
  Auto

  	
   

  	
  NuCO2 Supply LLC

  	
   

  	
  NuCO2 Funding
  LLC, NuCO2 Management LLC, NuCO2 IP LLC, NuCO2 LLC, NuCO2 Inc.

  
	
  Workers
  Compensation

  	
   

  	
  NuCO2 Management
  LLC

  	
   

  	
  NuCO2 Funding
  LLC, NuCO2 Supply LLC, NuCO2 IP LLC, NuCO2 LLC, NuCO2 Inc.

  
	
  General Liability

  	
   

  	
  NuCO2 LLC

  	
   

  	
  NuCO2 Funding
  LLC, NuCO2 Management LLC, NuCO2 Supply LLC, NuCO2 IP LLP, NuCO2 Inc.

  
	
  Umbrella

  	
   

  	
  NuCO2 LLC

  	
   

  	
  NuCO2 Funding
  LLC, NuCO2 Management LLC, NuCO2 Supply LLC, NuCO2 IP LLP, NuCO2 Inc.

  
	
  Excess Liability

  	
   

  	
  NuCO2 LLC

  	
   

  	
  NuCO2 Funding
  LLC, NuCO2 Management LLC, NuCO2 Supply LLC, NuCO2 IP LLP, NuCO2 Inc.

  
	
  Punitive Damages
  Wrap

  	
   

  	
  NuCO2 LLC

  	
   

  	
  NuCO2 Funding
  LLC, NuCO2 Management LLC, NuCO2 Supply LLC, NuCO2 IP LLP, NuCO2 Inc.

  
	
  Property

  	
   

  	
  NuCO2 Supply LLC

  	
   

  	
  NuCO2 Funding
  LLC, NuCO2 Management LLC, NuCO2 IP LLC, NuCO2 LLC, NuCO2 Inc.

  
	
  Crime

  	
   

  	
  NuCO2 Management
  LLC

  	
   

  	
  NuCO2 Funding
  LLC, NuCO2 Supply LLC, NuCO2 IP LLC, NuCO2 LLC, NuCO2 Inc.

  
	
  Employment
  Practices

  	
   

  	
  NuCO2 Management
  LLC

  	
   

  	
  NuCO2 Funding
  LLC, NuCO2 Supply LLC, NuCO2 IP LLC, NuCO2 LLC, NuCO2 Inc.

  
	
  D&O (no
  transfer)

  	
   

  	
  NuCO2 Inc.

  	
   

  	
  NuCO2 Funding
  LLC, NuCO2 Management LLC, NuCO2 Supply LLC, NuCO2 IP LLC, NuCO2 LLC,
  Alvarez & Marsal, Inc., Alvarez & Marsal North
  America, LLC