Exhibit 10.23


 


EMPLOYEE SERVICES AGREEMENT


 


This
EMPLOYEE SERVICES AGREEMENT (this “Agreement”) is dated as of May 28,
2008 and is by and between NuCO2 Management
LLC (the “Employee Company”), a Delaware limited liability company, and
NuCO2 Supply LLC (the
“Equipment Holder”), a Delaware limited liability company.


 


RECITALS


 


WHEREAS,
the Equipment Holder has entered into a delivery and customer services
agreement, dated as of May 28, 2008 (the “Delivery and Customer
Services Agreement”), by and between the Equipment Holder and NuCO2 LLC (the “Contract Holder”) whereby the
Equipment Holder agrees to, among other things, (A) perform all of the
Contract Holder’s obligations under contracts (“Customer Contracts”)
with third party customers (“Customers”) for, among other things, (i) the
delivery of liquid and high pressure carbon dioxide and other gases (“Bulk
Gases”) and related tanks and other equipment (“Customer Equipment”),
(ii) the replacement, maintenance and servicing of such Customer Equipment
and (iii) products and services related to the foregoing (collectively,
the “Delivery Services”); and (B) service and collect payments due
on all Customer Contracts and Contract Revenue Streams that the Contract Holder
owns and will own, including without limitation, (i) work with delinquent
Customers and pursue remedies against defaulting Customers, (ii) maintain
relationships with Customers by providing Customers with quality resources to
satisfy inquiries and deal with emergency issues related to Bulk Gases and their
Customer Equipment, and (iii) expand the number of Customer Contracts
through new Customer Contracts with existing Customers and new Customers (the
foregoing, “Customer Services”) and (iv) provide ancillary services
to Customers in connection with Bulk Gases and Customer Equipment as the need
may arise from time to time (“Ancillary Services” together with Delivery
Services, Customer Services and other services described in the Delivery and
Customer Services Agreement, the “Contract Services”);


 


WHEREAS,
the Employee Company is engaged in the business of performing services similar
to the Customer Services and to that end employs personnel that have the
requisite skills, experience, licensing and permits to enable the Employee
Company to perform such services (each, an “Employee”); and


 


WHEREAS,
the Equipment Holder desires to engage the Employee Company to, among other
things, provide Employees to the Equipment Holder necessary for the Equipment
Holder to perform the Contract Services under the Delivery and Customer
Services Agreement and the Employee Company is willing to do so pursuant to the
terms of this Agreement.


 


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NOW,
THEREFORE, for 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 NuCO2 Funding LLC (the “Master Issuer”), NuCO2 IP LLC, the Contract Holder, the Equipment
Holder and the Administrative Agent and Trustee, as supplemented by that
certain Series 2008-1 Supplement (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 Delivery and Customer
Services Agreement, the Securitization IP License Agreement, the Contribution
Agreements, the Transaction Management Agreement, the Master Management
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 supplement, as so amended and
supplemented.  The words “herein,” “hereof,”
“hereunder” and other words of similar import refer to this 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.


 


EMPLOYEE SERVICES


 


Section 2.1. 
Employee Services.  The
Employee Company hereby agrees to diligently and timely (i) provide the Equipment
Holder with the services of all Employees necessary for the Equipment Holder to
perform the Contract Services under the Delivery and Customer Services
Agreement in accordance with the terms thereof; (ii) in consultation with
the Equipment Holder, monitor the personnel needs of the Equipment Holder and
adjust the number and type of Employees as may be necessary from time to 


 


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time; and (iii) pay all Employee Wages and Benefits (the services
in clauses (i) through (iii) collectively, the “Employee Services”).


 


Section 2.2. 
Performance Standard.


 


(a)           The Employee Company agrees
to provide the Employee Services using that standard of care (i) (A) as
has been employed by the Master Manager prior to the date hereof in the
management, hiring, development and compensation (including benefits, bonuses
and other perquisites) of its Employees and (B) to the extent of changed
circumstances, practices, technologies, strategies or implementation methods,
procedures and degrees of care, that is at least equal or superior to that
employed by third parties generally recognized as competent managers of the
business of delivering services similar to the Employee Services, (ii) as
would enable the Equipment Holder to comply in all material respects with all
of the Contract Services and (iii) in compliance in all material respects
with all applicable requirements of law.


 


(b)           Subject to paragraph (c) below
and the other terms of this Agreement, the Employee Company shall have the
right to exercise reasonable discretion in connection with the performance and
delivery of the Employee Services.  The
Employee Company shall pay all costs and expenses incurred in connection
therewith that may be necessary or advisable for the carrying out of the
transactions contemplated by this Agreement. 
The Employee Company may, for its own account, seek the assistance of
other parties in carrying out its duties hereunder and enter into separate
agreements therefor, provided that the Employee Company will at all times
remain primarily liable for its duties and obligations hereunder.


 


(c)           The Employee Company shall
consult with and obtain written approval from the Equipment Holder for any
action it may propose to take in connection with the Employees in their
performance of Contract Services that is not within the ordinary course of the
Contract Holder’s or the Equipment Holder’s business or expressly permitted
under the Customer Contracts or the agreed upon terms with a Customer with
respect to any Ancillary Services. 
Neither party hereunder shall take any action pursuant to this Agreement
which is inconsistent with, or would cause the other party to default under,
violate or otherwise breach any provision of a Customer Contract or the
Transaction Documents to which such Person is a party.


 


Section 2.3. 
Independent Contractor.   Subject to Section 2.4 below, the
relationship between the Equipment Holder and the Employee Company is that of
independent contractors and nothing in this Agreement shall be construed (i) to
give either party the right or power to direct or control the daily activities
of the other party, (ii) to constitute the parties as principal and agent,
employer and employee, partners, joint venturers, co-owners otherwise as participants
in a joint undertaking, or (iii) to allow either party (a) to create
or assume any obligation on behalf of the other party for any purpose
whatsoever (other than an Authorized Signatory exercising Authorized Powers) or
(b) to represent to any third party that such party has any right or power
to enter into any binding obligation on the other party’s behalf (other than an
Authorized Signatory exercising Authorized Powers).


 


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Section 2.4. 
Management of Employees.  While performing Contract Services on behalf
of the Equipment Holder pursuant to this Agreement, the Employees shall at all
times be and remain employees of the Employee Company, but the Equipment Holder
shall have the right to manage the performance by the Employees of the Employee
Services on behalf of the Equipment Holder.


 


Section 2.5. 
Authorized Signatories.   The Equipment Holder agrees to maintain and,
from time to time upon consultation with the Contract Holder and the Master
Manager, update a list (the “Authorized Signatory List”) of (i) Employees
that are authorized to execute agreements, certificates, instruments and other
documents on behalf of the Equipment Holder and/or the Contract Holder (each,
an “Authorized Signatory”) and (ii) the types of agreements,
certificates, instruments and other documents that such Authorized Signatory is
authorized to execute on behalf of the Equipment Holder and/or the Contract
Holder (with respect to each Authorized Signatory, its “Authorized Powers”).   The Equipment Holder hereby grants a power
of attorney  to each Authorized Signatory
on the Authorized Signatory List for the Authorized Powers specified therein.  The Employee Company hereby agrees to cause
each Employee that is an Authorized Signatory to only exercise his or her power
of attorney within the scope of the Authorized Powers granted to such
Employee.  Notwithstanding the foregoing,
the Equipment Holder (i) may modify or revoke its grant of power of
attorney with respect to any Authorized Signatory at any time and (ii) with
respect to Authorized Powers relating to the Contract Holder, shall modify or
revoke its grant of power attorney with respect to any Authorized Signatory as
directed by the Contract Holder.


 


ARTICLE
III.


 


DEPOSIT OF CUSTOMER
COLLECTIONS


 


Section 3.1. 
Customer Collections.  The Employee Company acknowledges and agrees
that all such Customer Collections shall be the property of the Contract
Holder.  All Customer Collections
received by the Employee Company or any Employee shall be deposited by the
Employee Company into the Concentration Account within two Business Days after
actual knowledge of receipt thereof.


 


ARTICLE
IV.


 


EMPLOYEE SERVICES FEE


 


Section 4.1. 
Employee Services Fee.  In
consideration of the Employee Company’s agreement to perform the Employee
Services, the Equipment Holder hereby agrees to pay to the Employee Company (A) on
any date prior to September 1, 2008 (with at least 3 Business Days’ prior
notice), the Set Up Fee and (B) on each Weekly Allocation Date, an amount
equal to the Employee Services Fee.  For
each Weekly Allocation Date, the “Employee Services Fee” shall equal the
sum of (i) $152,675 (adjusted, based on CPI, on the first Weekly
Allocation Date in June of each year commencing in 2009), plus 17.2% of the related Adjusted
Customer Collections, (ii)(A) if an Early Amortization Event does not
exist and is not continuing, $64,805 (adjusted, 


 


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based on CPI, on the first Weekly Allocation Date in June of each
year commencing in 2009), plus 3.1% of the related Adjusted Customer Collections
or (B) if an Early Amortization Event has occurred and is continuing, $0
and (iii) all amounts required to be paid to in respect of employee
benefits and sales commissions.  The “Set
Up Fee” shall be an amount equal to $1,700,000 or such lower amount
specified by the Employee Company to the Equipment Holder.


 


ARTICLE
V.


 


TERM OF AGREEMENT


 


Section 5.1. 
Term.   The term of this Agreement shall commence on
the date hereof (the “Effective Date”) and, except as provided in Article VIII,
expire on the last day of each calendar month thereafter; provided, however,
that the Equipment Holder may renew this Agreement for the following calendar
month if it gives the Employee Company prior written notice of such election (which notice will be included in the
Monthly Manager’s Certificate which the Equipment Holder will provide to the
Transaction Manager for further delivery on the Equipment Holder’s behalf, as
provided in Section 4.1(b) of the Base Indenture).  Should the Equipment Holder fail to provide a
written notice of renewal, it may, at any time prior to the end of the next
calendar month, deliver a notice to the Employee Company that it wishes to
reinstate this Agreement, in which case this Agreement shall be deemed to have
been renewed for such calendar month. 
The Employee Company may terminate this Agreement any time following the
date that the Indenture has been satisfied and discharged in accordance with
the terms thereof.


 


ARTICLE
VI.


 


FORCE MAJEURE


 


Section 6.1. 
Failure to perform. 
Failure of either party to perform any of its obligations under the
provisions of this Agreement by reason of any of the following events (each, a “Force
Majeure Event”) shall not constitute a breach of this Agreement: strikes,
picket lines, boycott efforts, fires, floods, freezes, hail, accidents, war
(whether or not declared), revolution, riots, insurrections, acts of God, acts
of government, acts of the public enemy, scarcity or rationing of gasoline or
other fuel, inability to obtain materials or labor, or causes which are
reasonably beyond the control of the party subject to such events (the “Non-Performing
Party”).  In the event of a Force
Majeure Event, the Non-Performing Party shall immediately notify the other
party in writing and shall use its best efforts to limit and mitigate the
adverse consequences arising out of such Force Majeure Event.


 


ARTICLE
VII.


 


CONFIDENTIALITY


 


Section 7.1. 
Confidential Information.  Except as set forth in this Article VII
or as the parties hereto may otherwise agree in writing, the parties shall keep
strictly 


 


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confidential the terms and conditions of this
Agreement and any and all information received from the other party hereunder
and that is non-public or proprietary, or is otherwise designated as
confidential by such party (collectively, “Confidential Information”)
and, in addition, shall not use, disclose, make available, disseminate or
communicate the same to any third party (except on a like confidential basis to
their respective professional advisors and consultants with a need to know),
except to the extent necessary for the purpose of carrying out the activities
authorized by this Agreement and except to the Indenture Trustee, the
Administrative Agent, the Rating Agencies, their respective legal counsel and
representatives in connection with their duties or rights under the
Indenture.  The parties shall use their
best efforts to cause their respective Affiliates and employees to observe the
provisions of this Article VII. 
Confidential Information may be disclosed by a party to comply with any
law, governmental regulation or order of a court or administrative agency
having jurisdiction over the subject matter or, in the opinion of its counsel,
to comply with the requirements of any stock exchange on which the shares of
such party are listed; provided, however, that (1) the
disclosing party shall take all reasonable measures to impose an obligation to
maintain the confidentiality of the Confidential Information disclosed and (2) if
legally permissible and reasonably possible, the non-disclosing party shall be
notified of any Confidential Information to be disclosed prior to any such
disclosure; otherwise, prompt notice of such disclosure shall be given to the
non-disclosing party after any such disclosure.


 


Section 7.2. 
Exceptions.  The
obligations set out in this Article VII shall not apply to information
which:


 


(a)           the disclosing party can show
to the reasonable satisfaction of the non-disclosing party was already in its
possession at the time the disclosure other than as a result of disclosure by,
or acquisition from, the disclosing party or any of the disclosing party’s
Affiliates;


 


(b)           was disclosed to the
disclosing party by a third party who did not acquire it in confidence from the
non-disclosing party or any of the non-disclosing party’s Affiliates; or


 


(c)           is available to the general
public or becomes so available without fault on the part of the disclosing
party, it’s Affiliates or their respective officers, directors, employees,
agents or representatives or any persons acting on their behalf.


 


The
obligations set out in this Article VII shall continue to apply for a
period of 2 years after the discharge and satisfaction of the Indenture
pursuant to the terms thereof.


 


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ARTICLE
VIII.


 


TERMINATION


 


Section 8.1. 
Notice of Termination.   The Equipment Holder may terminate this
Agreement with or without cause at any time by giving at least 10 Business Days’
prior written notice to the Employee Company.


 


Section 8.2.  Default.  The Equipment Holder may terminate this
Agreement by giving written notice to the Employee Company upon the occurrence of
any of the following events:


 


(a)           the Employee Company shall
fail, within two Business Days after actual knowledge of 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


 


(b)           default in the performance,
or breach, of any covenant of the Employee Company in this Agreement (not
referenced in clause (a) above), and continuance of such default or breach
for a period of 30 days after the earlier of (i) the date on which an
officer of the Employee Company first has actual, personal knowledge of such
default or breach and (ii) the date on which written notice, specifying in
reasonable detail such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder shall have been
given to the Employee Company; or


 


(c)           a failure of any
representation or warranty of the Employee Company in this 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 Employee Company first has actual, personal knowledge
of such failure and (ii) the date on which written notice, specifying in
reasonable detail, such failure and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder shall have been given to
the Employee Company; or


 


(d)           the entry of a decree or
order for relief by a court having jurisdiction in respect of the Employee
Company 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
Employee Company or of any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Employee Company or the
continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days; or


 


(e)           the commencement by the
Employee Company 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 Employee Company
to the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator, or other similar official of the Employee
Company or any 


 


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substantial part of its
property or the making by the Employee Company of an assignment for the benefit
of creditors or the failure by the Employee Company generally to pay its debts
as such debts become due or the taking of action by the Employee Company in
furtherance of any of the foregoing; or


 


(f)            a final non-appealable
judgment shall be entered by any court against the Employee Company 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
Employee Company, exceeds (i) $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 8.3. 
Procedures on Termination.  Upon the expiration or earlier termination of
this Agreement for any reason, all the Employee Company’s rights hereunder
shall automatically revert to the Equipment Holder and the Employee Company
shall no longer be entitled to receive any payments hereunder, except for
services performed in accordance with the terms of this Agreement prior to the
date of such expiration or earlier termination. 
Further, the Employee Company agrees that, upon any such expiration or
termination of this Agreement, it shall:


 


(a)           execute any and all
documents which are deemed necessary by the Equipment Holder in order to
implement this provision and hereby grants to the Equipment Holder an
irrevocable power-of-attorney for the purpose of executing and delivering, and
the power to execute and deliver, all necessary and appropriate documents and
instruments on behalf of the Employee Company with respect thereto;


 


(b)           promptly deliver to the
Equipment Holder, or its designated assignee, all tangible Confidential
Information and all other materials, records, documents, files and other
information pertinent to the servicing of the Customers, whether in written or
in electronic form which it may have in its possession; and


 


(c)           to the extent applicable, provide reasonable
cooperation to the Equipment Holder and any party designated by the Equipment
Holder as replacing the Employee Company in the provision of Employee Services.


 


ARTICLE
IX.


 


REPRESENTATIONS AND
COVENANTS OF THE EMPLOYEE COMPANY


 


Section 9.1. 
Representations and Warranties.  The Employee Company represents
and warrants to the Equipment Holder that all of the following representations
and warranties are true and correct as of the Effective Date:


 


(a)           Organization, Power,
Qualification.  The
Employee Company 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 


 


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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
Employee Company has the power, and has taken all necessary action to authorize
it to execute, deliver and perform this Agreement in accordance with its terms
and to consummate the transactions contemplated hereby.  This Agreement has been duly executed and
delivered by the Employee Company and is a legal, valid and binding obligation
of the Employee Company, 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 Agreement in accordance with its terms and the consummation of the
transactions contemplated hereby by the Employee Company 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, or (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 Employee Company 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.


 


(d)           Litigation.  There is no pending action, suit, proceeding
or investigation, against or affecting the Employee Company before any court,
administrative agency, arbitrator or governmental body or, to the best
knowledge of the Employee Company, any threatened action or proceeding, against
or affecting the Employee Company before any of the foregoing which, if decided
adversely to the Employee Company, would have an Intercompany Agreement
MAE.  The Employee Company is not subject
to any 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 Employee Company in
connection with the execution, delivery and performance of this 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 Employee Company is not an “investment
company” within the meaning of the Investment Company Act.


 


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(g)           Bankruptcy.  The Employee Company is not a debtor in a
bankruptcy case.


 


(h)           Delivery and Contract
Services Agreement.  The
Employee Company acknowledges and agrees that it has received and reviewed the
Delivery and Customer Services Agreement and the documents required to be
delivered by the Contract Holder to the Equipment Holder thereunder and it
understands the scope of the Employee Services required and represents and
warrants that it has the expertise and resources to perform the Employee
Services.


 


(i)            Employment Laws, Rules and Regulations. 
The Employee Company represents and warrants that, to the best of its
knowledge, it has complied, and will continue to comply, in all material
respects with all applicable federal, state and local laws, rules, regulations
and ordinances applicable to the Employees, their employment by the Employee
Company and their services hereunder.


 


ARTICLE
X.


 


REPRESENTATIONS OF THE
EQUIPMENT HOLDER


 


Section 10.1. 
Representations and Warranties.  The Equipment Holder represents and warrants
to the Employee Company that all of the following representations and
warranties are true and correct as of the Effective Date:


 


(a)           Organization, Power,
Qualification.  The
Equipment Holder 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 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 could,
individually or in the aggregate, have an Intercompany Agreement MAE.


 


(b)           Authorization,
Enforceability.  The
Equipment Holder has the power, and has taken all necessary action to authorize
it to execute, deliver and perform this Agreement in accordance with its terms
and to consummate the transactions contemplated hereby.  This Agreement has been duly executed and
delivered by the Equipment Holder and is a legal, valid and binding obligation
of the Equipment Holder, 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 Agreement in accordance with its terms and the consummation of the
transactions contemplated hereby by the Equipment Holder do not and will not (i) require
any consent or approval of any Person, except for consents and approvals that
have already been


 


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obtained, (ii) violate
any Requirements of Law, or (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 Equipment Holder 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.


 


(d)           Litigation.  There is no pending action, suit, proceeding
or investigation, against or affecting the Equipment Holder before any court,
administrative agency, arbitrator or governmental body or, to the best knowledge
of the Equipment Holder, any threatened action or proceeding, against or
affecting the Equipment Holder before any of the foregoing which, if decided
adversely to the Equipment Holder, would have an Intercompany Agreement MAE.  The Equipment Holder is not subject to any
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 Equipment Holder in
connection with the execution, delivery and performance of this 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 Equipment Holder is not an “investment
company” within the meaning of the Investment Company Act.


 


(g)           Bankruptcy.  The Equipment Holder is not a debtor in a
bankruptcy case.


 


ARTICLE
XI.


 


SECURITIZATION IP LICENSE


 


Section 11.1. 
Securitization IP License.


 


(a)           Pursuant to the terms and
conditions of the Securitization IP License Agreement, the Equipment Holder
grants to the Employee Company a non-exclusive royalty free sub-license in, and
right to use, the Securitization IP in connection with the Permitted Uses (as
defined in the Securitization IP License Agreement) to the extent reasonably
necessary or useful for the Employee Company to perform its obligations
hereunder.  Such sub-license shall
terminate on the earlier of the date this Agreement is terminated or the date
the Securitization IP License Agreement expires or is terminated.


 


(b)           The Employee Company
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 Employee Company acknowledges that the IP
Holder is the owner or the licensee of the Securitization IP and that the
Contract Holder granted a sub-license to the Equipment Holder and the Equipment
Holder is granting a sub-license to the Employee Company in accordance with and
subject to the Securitization IP License Agreement.  The Employee Company acknowledges that it
shall not acquire or claim 


 


11

















 


adversely to the IP Holder
or the Contract Holder the right, title or interest in and to any of the
Securitization IP or any of the goodwill related thereto.  The Employee Company acknowledges that each
and every use of the Securitization IP by the Employee Company under this
Agreement and any and all goodwill resulting from the Employee Company’s use of
the Securitization IP shall at all times inure to the benefit of the IP Holder
and the Employee Company agrees to execute any and all documents that may be
submitted to the Employee Company reasonably necessary to carry out the
intention of this covenant.  This
covenant shall survive termination of this Agreement for any reason.


 


(c)           The Employee Company shall
promptly notify the Equipment Holder and the Contract Holder of any apparent
infringement of, or challenge to the Employee Company’s use of, or adverse
claim of rights to, the Securitization IP, and the Employee Company shall not,
unless required to do so under Requirements of Law (and then only to such
extent), communicate with any Person other than the IP Holder, the Contract
Holder, the Equipment Holder and their respective counsel or the Employee
Company’s counsel in connection with any such infringement, challenge or claim.


 


ARTICLE
XII.


 


MISCELLANEOUS


 


Section 12.1. 
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.


 




	
  The
  Employee Company

  NuCO2 Management LLC

  2800 S.E. Market Place

  Stuart, FL 34997

  Attention:
  General Counsel

  	
   

  	
  The
  Equipment Holder

  NuCO2 Supply LLC

  2800 S.E. Market Place

  Stuart, FL 34997

  Attention:
  General Counsel

  






 


Section 12.2. 
Entire Agreement.  This
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 12.3. 
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.


 


12

















 


Section 12.4. 
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 AGREEMENT OR ANY OTHER RELATED
DOCUMENT, AND HEREBY IRREVOCABLY AGREES THAT ALL 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 12.1 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 12.5. 
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 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 12.5 as to any action, counterclaim or
other proceeding which seeks, in whole or in part, to challenge the validity or
enforceability of this Agreement or any provision hereof.  This waiver shall apply to any subsequent
amendments, renewals, supplements or modifications to this Agreement.


 


Section 12.6. 
Further Assurances.  The Employee Company shall furnish the
Equipment Holder with 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 12.7. 
Amendments; Waivers.  Any term, covenant, agreement or condition of
this Agreement may only be amended with the consent of the Employee Company and
the Equipment Holder or compliance therewith may be waived (either generally or
in a particular instance and either retroactively or prospectively) by the
Employee Company and the Equipment Holder 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 default hereunder.


 


13

















 


Section 12.8. 
Successors and Assigns.  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.  All
agreements, statements, representations and warranties made by the Employee
Company herein or in any certificate or other instrument delivered by the
Employee Company or on its behalf under this Agreement shall be considered to
have been relied upon by the Equipment Holder and shall survive the execution
and delivery of this Agreement.  The
Equipment Holder acknowledges and agrees that the rights of the Equipment
Holder hereunder will be pledged to the Trustee pursuant to the Indenture.


 


Section 12.9. 
No Bankruptcy Petition.  Each of the Employee Company and the
Equipment Holder by entering into this 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
Equipment Holder and the Employee Company, respectively, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law.


 


Section 12.10. 
Relationship of Parties.  Except as provided in Section 12.15,
nothing contained in this 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 Equipment Holder on the one hand, and the
Employee Company, on the other hand.  The
Employee Company acknowledges that (a) the Employee Company is represented
by competent counsel and has consulted counsel before executing this Agreement
and (b) it has relied solely on its own judgment and advisors in entering
into the transactions contemplated hereby.


 


Section 12.11.  Limitation on Liability;
Indemnity.


 


(a)           None of the members,
managers, shareholders, directors, officers, employees or agents of the
Employee Company shall be under any liability to the Equipment 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 Agreement; provided, however,
that this provision shall not protect the Employee Company 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 Employee Company hereby agrees to indemnify and hold harmless
the Equipment Holder, each successor and assign of the Equipment Holder, as the
case may be, and each of their respective officers, directors, managers,
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 failure to act of the Employee Company
in the performance of its duties hereunder or any breach by the Employee
Company of any representation, covenant or other provision hereunder.


 


14

















 


This Section 12.11
shall survive termination of this Agreement.


 


Section 12.12. 
Governing Law.


 


THIS 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 12.13. 
Counterparts.  This
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 12.14. 
Limitations on Authority.  Except as expressly set forth herein, the
Employee Holder shall not be authorized to manage the affairs of the Equipment
Holder.  The management, policies, and
operations of the Equipment Holder shall be the responsibility of the Equipment
Holder and officers of the Equipment Holder acting pursuant to and in
accordance with their respective Organizational Documents and other applicable
documents.


 


Section 12.15. 
Headings and Captions.  The
headings or captions in this 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 Agreement or any provisions
thereof.


 


15

















 


IN WITNESS WHEREOF, this 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

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  NuCO2 Inc., its Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Eric M. Wechsler

  
	
   

  	
   

  	
  Name:

  	
  Eric
  M. Wechsler

  
	
   

  	
   

  	
  Title:

  	
  General
  Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NuCO2 Supply LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  NuCO2 Funding LLC, its Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NuCO2 Inc., its Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Eric M. Wechsler

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Eric
  M. Wechsler

  
	
   

  	
   

  	
   

  	
  Title:

  	
  General
  Counsel