Exhibit
4.2




 





 


 


NuCO2 FUNDING
LLC,


NuCO2 LLC,


NuCO2 SUPPLY LLC and


NuCO2 IP LLC


each as Co-Issuer


 


 


and


 


 


U.S. BANK NATIONAL ASSOCIATION,


as Trustee, Administrative Agent and Securities
Intermediary


 


 






 


 


BASE INDENTURE


 


Dated as of May 28, 2008


 






 


 


Asset Backed Notes


(Issuable in Series)


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS
  AND INCORPORATION BY REFERENCE

  	
  1

  
	
  Section 1.1

  	
  Definitions

  	
  1

  
	
  Section 1.2

  	
  Cross-References

  	
  1

  
	
  Section 1.3

  	
  Accounting and Financial Determinations; No
  Duplication

  	
  2

  
	
  Section 1.4

  	
  Rules of Construction

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE II THE NOTES

  	
  3

  
	
  Section 2.1

  	
  Designation and Terms of Notes

  	
  3

  
	
  Section 2.2

  	
  Notes Issuable in Series

  	
  4

  
	
  Section 2.3

  	
  Series Supplement for Each Series

  	
  7

  
	
  Section 2.4

  	
  Execution and Authentication

  	
  8

  
	
  Section 2.5

  	
  Registrar and Paying Agent

  	
  9

  
	
  Section 2.6

  	
  Paying Agent to Hold Money in Trust

  	
  10

  
	
  Section 2.7

  	
  Noteholder List

  	
  11

  
	
  Section 2.8

  	
  Transfer and Exchange

  	
  12

  
	
  Section 2.9

  	
  Persons Deemed Owners

  	
  13

  
	
  Section 2.10

  	
  Replacement Notes

  	
  13

  
	
  Section 2.11

  	
  Treasury Notes

  	
  14

  
	
  Section 2.12

  	
  Book-Entry Notes

  	
  15

  
	
  Section 2.13

  	
  Definitive Notes

  	
  16

  
	
  Section 2.14

  	
  Cancellation

  	
  17

  
	
  Section 2.15

  	
  Principal and Interest

  	
  17

  
	
  Section 2.16

  	
  Tax Treatment

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE III SECURITY

  	
  18

  
	
  Section 3.1

  	
  Grant of Security Interest

  	
  18

  
	
  Section 3.2

  	
  Certain Rights and Obligations of the Co-Issuers
  Unaffected

  	
  22

  
	
  Section 3.3

  	
  Performance of Collateral Documents

  	
  23

  
	
  Section 3.4

  	
  Stamp, Other Similar Taxes and Filing Fees

  	
  24

  
	
  Section 3.5

  	
  Authorization to File Financing Statements

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV REPORTS

  	
  25

  
	
  Section 4.1

  	
  Reports and Instructions to Trustee

  	
  25

  
	
  Section 4.2

  	
  Annual Noteholders’ Tax Statement

  	
  28

  
	
  Section 4.3

  	
  Rule 144A Information

  	
  28

  
	
  Section 4.4

  	
  Reports, Financial Statements and Other Information
  to Noteholders

  	
  28

  
	
  Section 4.5

  	
  Transaction Manager

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE V ALLOCATION
  AND APPLICATION OF COLLECTIONS

  	
  30

  
	
  Section 5.1

  	
  Concentration Account

  	
  30

  



 

















 


TABLE OF CONTENTS


(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 5.2

  	
  Securitization
  Entity Accounts

  	
  32

  
	
  Section 5.3

  	
  Senior Note
  Interest Reserve Account

  	
  36

  
	
  Section 5.4

  	
  Cash Trap
  Reserve Account

  	
  37

  
	
  Section 5.5

  	
  Contributions
  Reserve Account

  	
  38

  
	
  Section 5.6

  	
  Termination
  Amount Reserve Account

  	
  38

  
	
  Section 5.7

  	
  Other Accounts

  	
  39

  
	
  Section 5.8

  	
  Collection
  Account

  	
  41

  
	
  Section 5.9

  	
  Collection
  Account Administrative Accounts

  	
  41

  
	
  Section 5.10

  	
  Trustee as
  Securities Intermediary

  	
  43

  
	
  Section 5.11

  	
  Establishment of
  Series Accounts

  	
  45

  
	
  Section 5.12

  	
  Collections and
  Investment Income

  	
  45

  
	
  Section 5.13

  	
  Application of
  Collections on Payment Dates

  	
  47

  
	
  Section 5.14

  	
  Application of
  Funds

  	
  51

  
	
  Section 5.15

  	
  Determination of
  Monthly Interest

  	
  60

  
	
  Section 5.16

  	
  Determination of
  Monthly Principal

  	
  60

  
	
  Section 5.17

  	
  Prepayment of
  Principal

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI DISTRIBUTIONS

  	
  60

  
	
  Section 6.1

  	
  Distributions in
  General

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII REPRESENTATIONS AND WARRANTIES

  	
  61

  
	
  Section 7.1

  	
  Existence and
  Power

  	
  61

  
	
  Section 7.2

  	
  Company and
  Governmental Authorization

  	
  62

  
	
  Section 7.3

  	
  No Consent

  	
  62

  
	
  Section 7.4

  	
  Binding Effect

  	
  62

  
	
  Section 7.5

  	
  Litigation

  	
  63

  
	
  Section 7.6

  	
  No ERISA Plan

  	
  63

  
	
  Section 7.7

  	
  Tax Filings and
  Expenses

  	
  63

  
	
  Section 7.8

  	
  [Reserved]

  	
  64

  
	
  Section 7.9

  	
  Investment
  Company Act

  	
  64

  
	
  Section 7.10

  	
  Regulations T, U
  and X

  	
  64

  
	
  Section 7.11

  	
  Solvency

  	
  64

  
	
  Section 7.12

  	
  Ownership of
  Equity Interests; Subsidiaries

  	
  64

  
	
  Section 7.13

  	
  Security
  Interests

  	
  65

  
	
  Section 7.14

  	
  Related Documents

  	
  66

  
	
  Section 7.15

  	
  Non-Existence of
  Other Agreements

  	
  66

  
	
  Section 7.16

  	
  Compliance with
  Contractual Obligations and Laws

  	
  66

  
	
  Section 7.17

  	
  Other
  Representations

  	
  66

  
	
  Section 7.18

  	
  No Employees

  	
  67

  
	
  Section 7.19

  	
  Insurance

  	
  67

  
	
  Section 7.20

  	
  Environmental
  Matters; Real Property

  	
  67

  
	
  Section 7.21

  	
  Intellectual
  Property

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII COVENANTS

  	
  69

  
	
  Section 8.1

  	
  Payment of Notes

  	
  69

  



 


ii

















 


TABLE OF CONTENTS


(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 8.2

  	
  Maintenance of
  Office or Agency

  	
  69

  
	
  Section 8.3

  	
  Payment and
  Performance of Obligations

  	
  70

  
	
  Section 8.4

  	
  Maintenance of
  Existence

  	
  70

  
	
  Section 8.5

  	
  Compliance with
  Laws

  	
  70

  
	
  Section 8.6

  	
  Inspection of
  Property; Books and Records

  	
  70

  
	
  Section 8.7

  	
  Actions under
  the Collateral Documents and Related Documents

  	
  71

  
	
  Section 8.8

  	
  Notice of
  Defaults and Other Events

  	
  73

  
	
  Section 8.9

  	
  Notice of
  Material Proceedings

  	
  73

  
	
  Section 8.10

  	
  Further Requests

  	
  73

  
	
  Section 8.11

  	
  Further
  Assurances

  	
  73

  
	
  Section 8.12

  	
  Liens

  	
  75

  
	
  Section 8.13

  	
  Other
  Indebtedness

  	
  75

  
	
  Section 8.14

  	
  No ERISA Plan

  	
  75

  
	
  Section 8.15

  	
  Mergers

  	
  76

  
	
  Section 8.16

  	
  Asset
  Dispositions

  	
  76

  
	
  Section 8.17

  	
  Acquisition of
  Assets

  	
  77

  
	
  Section 8.18

  	
  Dividends,
  Officers’ Compensation, etc.

  	
  77

  
	
  Section 8.19

  	
  Legal Name,
  Location Under Section 9-301 or 9-307

  	
  77

  
	
  Section 8.20

  	
  Charter
  Documents

  	
  78

  
	
  Section 8.21

  	
  Investments

  	
  78

  
	
  Section 8.22

  	
  No Other
  Agreements

  	
  79

  
	
  Section 8.23

  	
  Bulk Gases
  Business; Other Business

  	
  79

  
	
  Section 8.24

  	
  Maintenance of
  Separate Existence

  	
  79

  
	
  Section 8.25

  	
  Covenants
  Regarding the Securitization IP

  	
  81

  
	
  Section 8.26

  	
  Contributions

  	
  82

  
	
  Section 8.27

  	
  Real Property
  Leases

  	
  82

  
	
  Section 8.28

  	
  No Employees

  	
  82

  
	
  Section 8.29

  	
  Insurance

  	
  82

  
	
  Section 8.30

  	
  Litigation

  	
  83

  
	
  Section 8.31

  	
  Environmental

  	
  83

  
	
  Section 8.32

  	
  Enhancements

  	
  83

  
	
  Section 8.33

  	
  Interest Rate
  Hedges; Derivatives Generally

  	
  83

  
	
  Section 8.34

  	
  Additional
  Securitization Entity

  	
  84

  
	
  Section 8.35

  	
  Subordinated
  Note Repayments

  	
  84

  
	
  Section 8.36

  	
  Registration
  under Securities Laws

  	
  85

  
	
  Section 8.37

  	
  Control Party

  	
  85

  
	
  Section 8.38

  	
  Other Accounts

  	
  85

  
	
  Section 8.39

  	
  Transaction with
  NuCO2 and Affiliates

  	
  85

  
	
  Section 8.40

  	
  Investment
  Company Act

  	
  85

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX REMEDIES

  	
  85

  
	
  Section 9.1

  	
  Early
  Amortization Events

  	
  85

  
	
  Section 9.2

  	
  Events of
  Default

  	
  86

  



 


iii

















 


TABLE OF CONTENTS


(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 9.3

  	
  Rights of the
  Control Party and Trustee upon Event of Default

  	
  89

  
	
  Section 9.4

  	
  Waiver of
  Appraisal, Valuation, Stay and Right to Marshaling

  	
  92

  
	
  Section 9.5

  	
  Limited Recourse

  	
  92

  
	
  Section 9.6

  	
  Optional
  Preservation of the Collateral

  	
  93

  
	
  Section 9.7

  	
  Waiver of Past
  Events

  	
  93

  
	
  Section 9.8

  	
  Control by the
  Control Party

  	
  93

  
	
  Section 9.9

  	
  Limitation on
  Suits

  	
  94

  
	
  Section 9.10

  	
  Unconditional
  Rights of Noteholders to Receive Payment

  	
  94

  
	
  Section 9.11

  	
  The Trustee
  May File Proofs of Claim

  	
  94

  
	
  Section 9.12

  	
  Undertaking for
  Costs

  	
  95

  
	
  Section 9.13

  	
  Restoration of
  Rights and Remedies

  	
  95

  
	
  Section 9.14

  	
  Rights and
  Remedies Cumulative

  	
  95

  
	
  Section 9.15

  	
  Delay or
  Omission Not Waiver

  	
  96

  
	
  Section 9.16

  	
  Waiver of Stay
  or Extension Laws

  	
  96

  
	
   

  	
   

  	
   

  
	
  ARTICLE X THE TRUSTEE AND THE ADMINISTRATIVE AGENT

  	
  96

  
	
  Section 10.1

  	
  Duties of the
  Trustee and the Administrative Agent

  	
  96

  
	
  Section 10.2

  	
  Rights of the
  Trustee and the Administrative Agent

  	
  100

  
	
  Section 10.3

  	
  Individual
  Rights of the Trustee

  	
  102

  
	
  Section 10.4

  	
  Notice of Events
  of Default and Defaults

  	
  102

  
	
  Section 10.5

  	
  Compensation and
  Indemnity

  	
  102

  
	
  Section 10.6

  	
  Replacement of
  the Trustee or the Administrative Agent

  	
  103

  
	
  Section 10.7

  	
  Successor
  Trustee or Successor Administrative Agent by Merger, etc.

  	
  105

  
	
  Section 10.8

  	
  Eligibility Disqualification

  	
  105

  
	
  Section 10.9

  	
  Appointment of
  Co-Trustee or Separate Trustee

  	
  105

  
	
  Section 10.10

  	
  Representations
  and Warranties of the Trustee and the Administrative Agent

  	
  107

  
	
  Section 10.11

  	
  Trustee and
  Administrative Agent Communications

  	
  107

  
	
  Section 10.12

  	
   

  	
  107

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI DISCHARGE OF INDENTURE

  	
  107

  
	
  Section 11.1

  	
  Termination of
  the Co-Issuers’ Obligations

  	
  107

  
	
  Section 11.2

  	
  Application of
  Trust Money

  	
  110

  
	
  Section 11.3

  	
  Repayment to the
  Co-Issuers

  	
  110

  
	
  Section 11.4

  	
  Reinstatement

  	
  111

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII AMENDMENTS

  	
  111

  
	
  Section 12.1

  	
  Without Consent
  of the Noteholders

  	
  111

  
	
  Section 12.2

  	
  With Consent of
  the Noteholders

  	
  112

  
	
  Section 12.3

  	
  Supplements

  	
  114

  
	
  Section 12.4

  	
  Revocation and
  Effect of Consents

  	
  114

  
	
  Section 12.5

  	
  Notation on or
  Exchange of Notes

  	
  115

  



 


iv

















 


TABLE OF CONTENTS


(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 12.6

  	
  The Trustee to
  Sign Amendments, etc.

  	
  115

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII MISCELLANEOUS

  	
  115

  
	
  Section 13.1

  	
  Notices

  	
  115

  
	
  Section 13.2

  	
  Communication by
  Noteholders With Other Noteholders

  	
  119

  
	
  Section 13.3

  	
  Certificate and
  Opinion as to Conditions Precedent

  	
  119

  
	
  Section 13.4

  	
  Statements
  Required in Certificate

  	
  119

  
	
  Section 13.5

  	
  Rules by
  the Trustee

  	
  119

  
	
  Section 13.6

  	
  Benefits of
  Indenture

  	
  119

  
	
  Section 13.7

  	
  Payment on
  Business Day

  	
  120

  
	
  Section 13.8

  	
  Governing Law

  	
  120

  
	
  Section 13.9

  	
  Successors

  	
  120

  
	
  Section 13.10

  	
  Severability

  	
  120

  
	
  Section 13.11

  	
  Counterpart
  Originals

  	
  120

  
	
  Section 13.12

  	
  Table of
  Contents, Headings, etc.

  	
  120

  
	
  Section 13.13

  	
  No Bankruptcy
  Petition Against the Securitization Entities

  	
  121

  
	
  Section 13.14

  	
  Recording of
  Indenture

  	
  121

  
	
  Section 13.15

  	
  Waiver of Jury
  Trial

  	
  121

  
	
  Section 13.16

  	
  Waivers by the
  Co-Issuers

  	
  122

  
	
  Section 13.17

  	
  Submission to
  Jurisdiction; Waivers

  	
  124

  
	
   

  	
   

  	
   

  
	
  ANNEXES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Annex A

  	
  Base Indenture Definitions List

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Weekly Manager’s Certificate

  	
   

  
	
  Exhibit B

  	
  Monthly Manager’s Certificate

  	
   

  
	
  Exhibit C-1

  	
  Form of Grant of Security Interest in Trademarks

  	
   

  
	
  Exhibit C-2

  	
  Form of Grant of Security Interest in Patents

  	
   

  
	
  Exhibit C-3

  	
  Form of Grant of Security Interest in Copyrights

  	
   

  
	
  Exhibit D-1

  	
  Form of Supplemental Grant of Security Interest in Trademarks

  	
   

  
	
  Exhibit D-2

  	
  Form of Supplemental Grant of Security Interest in Patents

  	
   

  
	
  Exhibit D-3

  	
  Form of Supplemental Grant of Security Interest in Copyrights

  	
   

  
	
  Exhibit E

  	
  Form of Compliance Certificate

  	
   

  
	
  Exhibit F

  	
  Form of Information Request Certification

  	
   

  
	
  Exhibit G

  	
  Form of Quarterly Customer
  Contracts Report

  	
   

  
				



 


SCHEDULES


 


	
  Schedule 7.3

  	
  -

  	
  Consents

  
	
  Schedule 7.6

  	
  -

  	
  Plans

  
	
  Schedule 7.7

  	
  -

  	
  Proposed Tax

  



 


v

















 


TABLE OF CONTENTS


(Continued)


 


	
   

  	
   

  	
  Page

  



 


	
  Schedule 7.13(a)

  	
  -

  	
  Non-Perfected
  Liens

  
	
  Schedule 7.19

  	
  -

  	
  Insurance

  
	
  Schedule 8.11

  	
  -

  	
  Liens

  
	
  Schedule 8.29

  	
  -

  	
  Insurance

  
	
  Schedule 10.1(a)

  	
  -

  	
  Administrative
  Agent

  



 


vi














 


BASE INDENTURE, dated as
of May 28, 2008, by and among 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”), NuCO2 IP LLC, a Delaware limited liability company (the
“IP Holder” and together with the Master Issuer, the Contract Holder and
the Equipment Holder, collectively, the “Co-Issuers” and each, a “Co-Issuer”),
each as a Co-Issuer, and U.S. BANK NATIONAL ASSOCIATION, a national banking
association, as trustee (in such capacity, the “Trustee”),
administrative agent (in such capacity, the “Administrative Agent”) and
as securities intermediary.


 


W I T N E S S E T H:


 


WHEREAS, the Co-Issuers
have duly authorized the execution and delivery of this Base Indenture to
provide for the issuance from time to time of one or more series of asset
backed notes (the “Notes”), issuable as provided in this Base Indenture;
and


 


WHEREAS, all things
necessary to make this Base Indenture a legal, valid and binding agreement of
the Co-Issuers, in accordance with its terms, have been done, and the
Co-Issuers propose to do all the things necessary to make the Notes, when
executed by the Co-Issuers and authenticated and delivered by the Trustee
hereunder and duly issued by the Co-Issuers, the legal, valid and binding
obligations of the Co-Issuers as hereinafter provided;


 


NOW, THEREFORE, for and
in consideration of the premises and the receipt of the Notes by the
Noteholders, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Noteholders (in accordance with the priorities set
forth herein and in any Series Supplement), as follows:


 


ARTICLE I


 


DEFINITIONS AND
INCORPORATION BY REFERENCE


 


Section 1.1             Definitions.


 


Capitalized terms used
herein (including the preamble and the recitals hereto) shall have the meanings
assigned to such terms in the Base Indenture Definitions List attached hereto
as Annex A (the “Base Indenture Definitions List”), as such
Base Indenture Definitions List may be amended, supplemented or otherwise
modified from time to time in accordance with the provisions hereof.


 


Section 1.2             Cross-References.


 


Unless otherwise
specified, references in the Indenture and in each other Related Document to
any Article or Section are references to such Article or Section of
the Indenture or such other Related Document, as the case may be, and unless
otherwise 


 

















 


specified, references in
any Article, Section or definition to any clause are references to such
clause of such Article, Section or definition.


 


Section 1.3             Accounting and Financial
Determinations; No Duplication.


 


Where the character or
amount of any asset or liability or item of income or expense is required to be
determined, or any accounting computation is required to be made, for the
purpose of the Indenture or any other Related Document, such determination or
calculation shall be made, to the extent applicable and except as otherwise
specified in the Indenture or such other Related Document, in accordance with
GAAP.  All accounting determinations and
computations in this Indenture or under any other Related Documents shall be
made without duplication.


 


Section 1.4             Rules of Construction.


 


In the Indenture and the
other Related Documents, unless the context otherwise requires:


 


(a)           the singular includes the plural and
vice versa;


 


(b)           reference to any Person includes such
Person’s successors and assigns but, if applicable, only if such successors and
assigns are permitted by the Indenture and the applicable Related Document, as
the case may be, and reference to any Person in a particular capacity only
refers to such Person in such capacity;


 


(c)           reference to any gender includes the
other gender;


 


(d)           reference to any Requirement of Law
means such Requirement of Law as amended, modified, codified or reenacted, in
whole or in part, and in effect from time to time;


 


(e)           “including” (and with correlative
meaning “include”) means including without limiting the generality of any
description preceding such term;


 


(f)            with respect to the determination of
any period of time, except as otherwise specified, “from” means “from and
including” and “to” means “to but excluding”; and


 


(g)           references to any agreement or
document are to it as amended, supplemented, restated and otherwise modified
from time to time and to any successor document.


 


2

















 


ARTICLE II


 


THE NOTES


 


Section 2.1             Designation and Terms of Notes.


 


(a)           Each Series of Notes shall be
substantially in the form specified in the applicable Series Supplement
and shall bear, upon its face, the designation for such Series to which it
belongs as selected by the Co-Issuers, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
hereby or by the applicable Series Supplement and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may, consistently herewith, be determined to be appropriate
by the Authorized Officers of the Co-Issuers executing such Notes, as evidenced
by execution of such Notes by such Authorized Officers.  All Notes of any Series shall, except as
specified in the applicable Series Supplement, be equally and ratably
entitled as provided herein to the benefits hereof without preference, priority
or distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Base
Indenture and any applicable Series Supplement.  The aggregate principal amount of Notes which
may be authenticated and delivered under this Base Indenture is unlimited.  The Notes of each Series shall be issued
in the denominations set forth in the applicable Series Supplement.


 


(b)           With respect to any Variable Funding
Note Purchase Agreement entered into by the Co-Issuers in connection with the
issuance of any Variable Funding Senior Notes, whether or not any of the
following shall have been specifically provided for in the applicable provision
of the Indenture Documents, the following shall be true (except to the extent
that the Series Supplement with respect to such Class of Notes shall
provide otherwise):


 


(i)            for purposes of any
provision of any Indenture Document relating to any vote, consent, direction or
the like to be given by such Class on any date, any commitments to extend
credit under such Variable Funding Note Purchase Agreement that are not drawn
as of such date shall be treated as if they were fully drawn and outstanding as
Outstanding Principal Amount, without duplication as among different Subclasses
so as to ensure that for such purpose the Outstanding Principal Amount does not
exceed the maximum aggregate amount of such commitments; and


 


(ii)           for purposes of any
provisions of any Indenture Document relating to termination, discharge or the
like, such Class shall continue to be deemed Outstanding unless and until
all commitments to extend credit under such Variable Funding Note Purchase
Agreement have been terminated thereunder.


 


3

















 


Section 2.2             Notes Issuable in Series.


 


(a)           The Notes may be issued in one or
more Series.  Each Series of Notes
shall be created by a Series Supplement.


 


(b)           Subject to the provisos appearing at
the end of this subclause (b), so long as each of the certifications described
in clause (vi) below are true and correct as of the applicable Series Closing
Date, Notes of a new Series may from time to time be executed by the
Co-Issuers and delivered to the Trustee for authentication and thereupon the
same shall be authenticated and delivered by the Trustee upon the receipt by
the Trustee of a Company Request at least ten (10) Business Days (except
in the case of the issuance of the Initial Series of Notes) in advance of
the related Series Closing Date and upon performance or delivery by the
Co-Issuers to the Trustee, and receipt by the Trustee, of the following:


 


(i)            a Company Order
authorizing and directing the authentication and delivery of the Notes of such
new Series by the Trustee and specifying the designation of such new
Series, the Initial Principal Amount (or the method for calculating the Initial
Principal Amount) of such new Series to be authenticated and the Note Rate
(or the method for calculating the Note Rate) with respect to such new Series;


 


(ii)           a Series Supplement
satisfying the criteria set forth in Section 2.3 to be executed by
the Co-Issuers and the Trustee and specifying the Principal Terms of such new
Series;


 


(iii)          if (A) such
new Series of Notes are Senior Notes (which Senior Notes will generally be
pari  passu with all other Senior Notes in accordance with Section 6.1(b)),
Rating Agency Confirmation Letters (x) confirming a rating of at least “Baa2”
if rated by Moody’s and “BBB” if rated by S&P or by Fitch, as applicable,
with respect to such new Series of Senior Notes and (y) confirming
each applicable rating from the applicable Rating Agency with respect to each
other Series of Notes then Outstanding, and (B) such new Series of
Notes are Subordinated Notes (which may include Subordinated Notes, on which
the interest is senior to the interest payable on certain existing Subordinated
Notes, or Subordinated Notes which are subordinated or pari passu to
other existing Subordinated Notes), Rating Agency Confirmation Letters (x) confirming
a rating of at least “Ba2” if rated by Moody’s and “BB” if rated by S&P or
by Fitch, as applicable, with respect to such new Series of Subordinated
Notes and (y) confirming each applicable rating from the applicable Rating
Agency with respect to each other Series of Notes then Outstanding;


 


(iv)          any related
Enhancement Agreement entered into in connection with such issuance and
executed by each of the parties thereto in compliance with Section 8.32,
provided that the entry into any Enhancement Agreement shall require the
satisfaction of the Rating Agency Condition with respect to each Series of
Notes Outstanding;


 


4

















 


(v)           any related Interest
Rate Hedge Agreement entered into in connection with such issuance and executed
by each of the parties thereto in compliance with Section 8.33, provided
that the entry into any Interest Rate Hedge Agreement, other than Permitted
Hedges, shall require the satisfaction of the Rating Agency Condition with
respect to each Series of Notes Outstanding;


 


(vi)          an Officer’s
Certificate dated as of the applicable Series Closing Date to the effect
that:


 


(A)          no Early Amortization
Event, Cash Trapping Period, Master Manager Default, Transaction Manager
Default, or Event of Default (x) has occurred and is continuing or (y) shall
occur as a result of the issuance of the new Series of Notes;


 


(B)           all conditions
precedent with respect to the authentication and delivery of such new Series of
Notes provided in this Base Indenture, the related Series Supplement and,
if applicable, the related Note Purchase Agreement and any other related note
purchase agreement executed in connection with the issuance of such new Series of
Notes have been satisfied or waived; and


 


(C)           each of the parties
to the Related Documents with respect to such new Series of Notes has
covenanted and agreed in the Related Documents that, prior to the date which is
one year and one day after the payment in full of the latest maturing Note, it
shall not institute against, or join with any other Person in instituting,
against any Securitization Entity, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings, under any federal
or state bankruptcy or similar law;


 


(vii)         a Tax Opinion dated
the applicable Series Closing Date; provided, however, that,
if there are no Notes Outstanding, only the opinions set forth in clauses (b) and
(c) of the definition of Tax Opinion are required to be given in
connection with the issuance of such new Series of Notes;


 


(viii)        an Opinion of
Counsel, subject to the assumptions and qualifications stated therein, and in a
form reasonably acceptable to the initial purchasers under the applicable Note
Purchase Agreement, dated the applicable Series Closing Date,
substantially to the effect that:


 


(A)          all of the
instruments described in this Section 2.2(b) furnished to the
Trustee conform to the requirements of this Base Indenture and the related Series Supplement
and the new Series of Notes is permitted to be authenticated by the
Trustee pursuant to the terms of this Base Indenture and the related Series Supplement;


 


(B)           the related Series Supplement
has been duly authorized, executed and delivered by the Co-Issuers;


 


5

















 


(C)           such new Series of
Notes has been duly authorized and executed and, when authenticated and
delivered in accordance with the provisions of this Base Indenture and the
related Series Supplement, shall constitute valid, binding and enforceable
obligations of the Co-Issuers entitled to the benefits of this Base Indenture
and the related Series Supplement, subject, in the case of enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors’ rights generally and to general principles of equity;


 


(D)          the Lien and the
security interests created by the Base Indenture on the Collateral remain
perfected as required by the Base Indenture, and such Lien and security
interests extend to any assets transferred to the Securitization Entities in
connection with the issuance of such new Series of Notes;


 


(E)           the
non-consolidation opinion delivered on the Closing Date is reaffirmed after
giving effect to the issuance of such new Series of Notes;


 


(F)           if any new assets
are being transferred to the Securitization Entities in connection with the
issuance of such new Series of Notes, a true sale or true contribution
opinion with respect to the transfer of such assets;


 


(G)           the related Series Supplement
is a legal, valid and binding agreement of the Co-Issuers, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors’ rights generally and to
general principles of equity; and


 


(ix)           such other
documents, instruments, certifications, agreements or other items as the
initial purchaser of the new Series of Notes may reasonably require.


 


; provided that no
new Series of Notes issued after the Closing Date may be issued with a Series Scheduled
Maturity Date that will occur prior to the Series 2008-1 Adjusted
Repayment Date (as defined in the Series 2008-1 Supplement) in effect from
time to time; provided  further, to the extent of any Required
Amortization Amounts payable in connection with any new Series of Notes
issued after the Closing Date, that the related Series Supplement shall
specify that such Required Amortization Amounts be paid solely pursuant to clause
eleventh of the Priority of Payments.


 


(c)           Upon satisfaction, or waiver by the
initial purchasers under the applicable Note Purchase Agreement (which waiver
shall be in writing),  as applicable,
of the conditions set forth in Section 2.2(b), the Trustee shall
authenticate and deliver, as provided above, such Series of Notes upon
execution thereof by the Co-Issuers.


 


6

















 


(d)           With regard to any new Series of
Notes issued pursuant to Section 2.2(b) that constitutes
Senior Debt, the proceeds from such issuance may be used at any time prior to
the Series Adjusted Repayment Date for the Initial Series of Notes to
repay either Senior Debt or Subordinated Debt; provided, however,
that at any time on or after the Series Adjusted Repayment Date for the
Initial Series of Notes the proceeds from such issuance may only be used
to repay Subordinated Debt if all Senior Debt has been repaid prior to such
issuance as provided for in Section 8.35.


 


(e)           With regard to any new Series of
Notes issued pursuant to this Section 2.2 that constitutes
Subordinated Debt, the proceeds from such issuance may be used at any time
prior to the Series Adjusted Repayment Date for the Initial Series of
Notes to repay either Senior Debt or Subordinated Debt; provided, however,
that at any time on or after the Series Adjusted Repayment Date for the
Initial Series of Notes no Series of Subordinated Notes may be issued
under this Base Indenture unless the proceeds from such issuance are used to
repay Senior Debt or all Outstanding Classes of Senior Debt have been
refinanced prior to such issuance.


 


Section 2.3             Series Supplement for Each
Series.


 


In conjunction with the
issuance of a new Series, the parties hereto shall execute a Series Supplement,
which shall specify the relevant terms of such new Series of Notes, which
may include, without limitation:


 


(a)           its name or designation;


 


(b)           the Initial Principal Amount with
respect to such Series;


 


(c)           the Note Rate with respect to such Series and
the applicable Default Rate;


 


(d)           the Series Closing Date;


 


(e)           the Series Scheduled Maturity
Date, if any;


 


(f)            the Series Legal Final Maturity
Date;


 


(g)           each Rating Agency rating such
Series;


 


(h)           the name of the Clearing Agency, if
any;


 


(i)            the names of the Collection Account
Administrative Accounts and any other Series Accounts to be used with
respect to such Series and the terms governing the operation of any such
account and the use of moneys therein;


 


(j)            the method of allocating amounts
deposited into any Collection Account Administrative Account with respect to
such Series;


 


7

















 


(k)           whether the Notes of such Series shall
be issued in multiple Classes or Subclasses and the rights and priorities of
each such Class or Subclass;


 


(l)            any deposit of funds to be made in
any Base Indenture Account or any Series Account on the Series Closing
Date;


 


(m)          whether the Notes of such Series may
be issued in bearer form and any limitations imposed thereon;


 


(n)           whether the Notes of such Series include
Senior Notes and/or Subordinated Notes;


 


(o)           whether the Notes of such Series include
Variable Funding Senior Notes or Variable Funding Subfacilities issued pursuant
to a Variable Funding Note Purchase Agreement;


 


(p)           the terms of any related Enhancement
and the Enhancement Provider thereof, if any;


 


(q)           the terms of any related Interest
Rate Hedge and the Interest Rate Hedge Provider thereof, if any; and


 


(r)            any other relevant terms of such Series of
Notes that do not change the terms of any Series of Notes Outstanding and
that do not prevent the satisfaction of the Rating Agency Condition with
respect to each Series of Notes Outstanding with respect to the issuance
of such new Series (all such terms, the “Principal Terms” of such
Series).


 


Section 2.4             Execution and Authentication.


 


(a)           The Notes shall, upon issue pursuant
to Section 2.2, be executed on behalf of the Co-Issuers by an
Authorized Officer of each Co-Issuer and delivered by the Co-Issuers to the
Trustee for authentication and redelivery as provided herein.  The signature of each such Authorized Officer
on the Notes may be manual or facsimile. 
If an Authorized Officer of any Co-Issuer whose signature is on a Note
no longer holds that office at the time the Note is authenticated, the Note shall
nevertheless be valid.


 


(b)           At any time and from time to time
after the execution and delivery of this Base Indenture, the Co-Issuers may
deliver Notes of any particular Series (issued pursuant to Section 2.2)
executed by the Co-Issuers to the Trustee for authentication, together with one
or more Company Orders for the authentication and delivery of such Notes, and
the Trustee, in accordance with such Company Order and this Base Indenture,
shall authenticate and deliver such Notes.


 


(c)           No Note shall be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose unless
there appears on such Note a certificate of authentication substantially in the
form provided for below, duly executed by the Trustee by the manual or facsimile
signature of a Trust Officer (and by the applicable non-U.S. 


 


8

















 


listing agent if (i) the Notes of the Series to
which such Note belongs are listed on a non-U.S. stock exchange and (ii) the
applicable rules and regulations governing the listing of such Notes on
such non-U.S. stock exchange require such authentication by such non-U.S.
listing agent).  Such signatures on such
certificate shall be conclusive evidence, and the only evidence, that the Note
has been duly authenticated under this Base Indenture.  The Trustee may appoint an authenticating
agent acceptable to the Co-Issuers to authenticate Notes.  Unless limited by the term of such
appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so.  Each reference in
this Base Indenture to authentication by the Trustee includes authentication by
such authenticating agent.  The Trustee’s
certificate of authentication shall be in substantially the following form:


 


This is one of the Notes of a Series issued under the within
mentioned Indenture.


 


	
   

  	
  U.S. Bank
  National Association, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


(d)           Each Note shall be dated and issued
as of the date of its authentication by the Trustee or authenticating agent.


 


(e)           Notwithstanding the foregoing, if any
Note shall have been authenticated and delivered hereunder but never issued and
sold by the Co-Issuers, and the Co-Issuers shall deliver such Note to the
Trustee for cancellation as provided in Section 2.14 together with
a written statement to the Trustee (which need not comply with Section 13.3
and need not be accompanied by an Opinion of Counsel) stating that such Note
has never been issued and sold by the Co-Issuers, for all purposes of the
Indenture such Note shall be deemed never to have been authenticated and
delivered hereunder and shall not be entitled to the benefits of the Indenture.


 


Section 2.5             Registrar and Paying Agent.


 


(a)           The Co-Issuers shall (i) maintain
an office or agency where Notes may be presented for registration of transfer
or for exchange (the “Registrar”) and (ii) appoint a paying agent
(which shall satisfy the eligibility criteria set forth in Section 10.8(a))
(the “Paying Agent”) at whose office or agency Notes may be presented for
payment.  The Registrar shall keep a
register of the Notes (including the name and address of each such Noteholder)
and of their transfer and exchange (the “Note Register”).  The Trustee shall indicate in its books and
records the commitment of each Noteholder (in respect of Variable Funding
Senior Notes) and the principal amount owing to each Noteholder from time to
time.  The Co-Issuers may appoint one or
more co-registrars and one or more additional paying agents.  The term “Paying Agent” shall include any
additional paying agent and the term “Registrar” shall include any
co-registrars.  The Co-Issuers may change
the Paying Agent or the Registrar without prior 


 


9

















 


notice to any Noteholder.  The Co-Issuers shall notify the Trustee in
writing of the name and address of any Agent not a party to this Base
Indenture.  The Trustee is hereby
initially appointed as the Registrar and the Paying Agent and shall send copies
of all notices and demands received by the Trustee (other than those sent by
the Co-Issuers to the Trustee and those addressed to the Co-Issuers) in
connection with the Notes to the Co-Issuers.


 


(b)           The Co-Issuers shall enter into an
appropriate agency agreement with any Agent not a party to this Base
Indenture.  Such agency agreement shall
implement the provisions of this Base Indenture that relate to such Agent.  If the Co-Issuers fail to maintain a
Registrar or Paying Agent, the Trustee hereby agrees to act as such, and shall
be entitled to appropriate compensation in accordance with this Base Indenture
until the Co-Issuers shall appoint a replacement Registrar or Paying Agent, as
applicable.


 


Section 2.6             Paying Agent to Hold Money in
Trust.


 


(a)           The Co-Issuers shall cause the Paying
Agent (if the Paying Agent is not the Trustee) to execute and deliver to the
Trustee an instrument in which the Paying Agent shall agree with the Trustee
(and if the Trustee is the Paying Agent, it hereby so agrees), subject to the
provisions of this Section 2.6, that the Paying Agent shall:


 


(i)            hold all sums held
by it for the payment of amounts due with respect to the Notes in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;


 


(ii)           give the Trustee
notice of any default by any Co-Issuer of which it has Actual Knowledge in the
making of any payment required to be made with respect to the Notes;


 


(iii)          at any time during
the continuance of any such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by the Paying Agent;


 


(iv)          immediately resign
as the Paying Agent and forthwith pay to the Trustee all sums held by it in trust
for the payment of Notes if at any time it ceases to meet the standards
required to be met by a Trustee hereunder at the time of its appointment; and


 


(v)           comply with all
requirements of the Code and other applicable tax law with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.


 


(b)           The Co-Issuers may at any time, for
the purpose of obtaining the satisfaction and discharge of the Indenture or for
any other purpose, by Company Order direct the Paying Agent to pay to the
Trustee all sums held in trust by the Paying Agent,


 


10














 


such sums to be held by the Trustee in trust upon the
same terms as those upon which the sums were held in trust by the Paying
Agent.  Upon such payment by the Paying
Agent to the Trustee, the Paying Agent shall be released from all further
liability with respect to such money.


 


(c)           Subject to applicable laws with
respect to escheat of funds, any money held by the Trustee or the Paying Agent
in trust for the payment of any amount due with respect to any Note and
remaining unclaimed for two years after such amount has become due and payable
shall be discharged from such trust and be paid to the Co-Issuers upon delivery
of a Company Request.  The Holder of such
Note shall thereafter, as an unsecured general creditor, look only to the
Co-Issuers for payment thereof (but only to the extent of the amounts so paid
to the Co-Issuers), and all liability of the Trustee or the Paying Agent with
respect to such trust money paid to the Co-Issuers shall thereupon cease; provided,
however, that the Trustee or the Paying Agent, before being required to
make any such repayment, may, at the expense of the Co-Issuers, cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in New York City,
and in a newspaper customarily published on each Business Day and of general
circulation in London (and in the capital city of the related stock exchange
where the related Series of Notes has been listed), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than thirty (30) days from the date of such publication, any unclaimed
balance of such money then remaining shall be repaid to the Co-Issuers.  The Trustee may also adopt and employ, at the
expense of the Co-Issuers, any other commercially reasonable means of
notification of such repayment.


 


Section 2.7             Noteholder List.


 


(a)           The Trustee shall furnish or cause to
be furnished by the Registrar to the Co-Issuers, the Master Manager, the Paying
Agent or any Variable Funding Administrative Agent, (i) on each Payment
Date, and (ii) within five (5) Business Days after receipt by the
Trustee of a request therefor from the Co-Issuers, the Master Manager, the
Paying Agent or such Variable Funding Administrative Agent, respectively, in
writing, the names and addresses of the Noteholders of each Series as of
the most recent Record Date for payments to such Noteholders.  Unless otherwise provided in the applicable Series Supplement,
holders of Notes of any Series having an aggregate Outstanding Principal
Amount of not less than 10% of the aggregate Outstanding Principal Amount of
such Series (the “Applicants”) may apply in writing to the Trustee,
and if such application states that the Applicants desire to communicate with
other Noteholders of such Series or any other Series with respect to
their rights under the Indenture or under the Notes and is accompanied by a
copy of the communication which such Applicants propose to transmit, then the
Trustee, after having been adequately indemnified by such Applicants for its
costs and expenses, shall afford or shall cause the Registrar to afford such
Applicants access during normal business hours to the most recent list of
Noteholders held by the Trustee and shall give the Co-Issuers notice that such
request has been made, within five (5) Business Days after the receipt of
such application. Such list shall be as of a date no more than forty-five (45)
days prior to the date of receipt of such Applicants’ request.  Every Noteholder, by receiving and holding a 


 


11

















 


Note, agrees with the Trustee that none of the
Trustee, the Registrar or any of their respective agents shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Noteholders hereunder, regardless of the source from which
such information was obtained.


 


(b)           The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Noteholders of each Series of Notes.  If the Trustee is not the Registrar, the
Co-Issuers shall furnish to the Trustee at least seven (7) Business Days
before each Payment Date and at such other time as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Noteholders of each Series of Notes.


 


Section 2.8             Transfer and Exchange.


 


(a)           Upon surrender for registration of
transfer of any Note at the office or agency of the Registrar, if the
requirements of Section 2.8(f) and Section 8-401(a) of
the New York UCC are met, the Co-Issuers shall execute and, after the
Co-Issuers have executed, the Trustee shall authenticate and deliver to the
Noteholder, in the name of the designated transferee or transferees, one or
more new Notes, in any authorized denominations, of the same Series and Class (and,
if applicable, Subclass) and a like original aggregate principal amount of the
Notes so transferred. At the option of any Noteholder, Notes may be exchanged
for other Notes of the same Series and Class in authorized
denominations of like original aggregate principal amount of the Notes so
exchanged, upon surrender of the Notes to be exchanged at any office or agency
of the Registrar maintained for such purpose. 
Whenever Notes of any Series are so surrendered for exchange, if
the requirements of Section 2.8(f) and Section 8-401(a) of
the New York UCC are met, the Co-Issuers shall execute, and after the
Co-Issuers have executed, the Trustee upon receipt of a Company Order shall
authenticate and deliver to the Noteholder, the Notes which the Noteholder
making the exchange is entitled to receive.


 


(b)           Every Note presented or surrendered
for registration of transfer or exchange shall be (i) duly endorsed by, or
be accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing with a medallion signature guarantee and (ii) accompanied
by such other documents as the Trustee may require.  The Co-Issuers shall execute and deliver to
the Trustee or the Registrar, as applicable, Notes in such amounts and at such
times as are necessary to enable the Trustee to fulfill its responsibilities
under the Indenture and the Notes.


 


(c)           All Notes issued upon any
registration of transfer or exchange of the Notes shall be the valid
obligations of the Co-Issuers, evidencing the same indebtedness, and entitled
to the same benefits under the Indenture, as the Notes surrendered upon such
registration of transfer or exchange.


 


(d)           The preceding provisions of this Section 2.8
notwithstanding, (i) the Trustee or the Registrar, as the case may be,
shall not be required to register the 


 


12

















 


transfer or exchange of any Note of any Series for
a period of fifteen (15) days preceding the due date for payment in full of the
Notes of such Series and (ii) no assignment or transfer of a Note or
any commitment in respect thereof shall be effective until such assignment or
transfer shall have been recorded in the Note Register and in the books and
records of the Trustee, as applicable, pursuant to Section 2.5.


 


(e)           Unless otherwise provided in the
applicable Series Supplement, no service charge shall be payable for any
registration of transfer or exchange of Notes, but the Co-Issuers or the
Registrar may require payment by the Noteholder of a sum sufficient to cover
any Tax or governmental charge that may be imposed in connection with any
transfer or exchange of Notes.


 


(f)            Unless otherwise provided in the
applicable Series Supplement, registration of transfer of Notes containing
a legend relating to the restrictions on transfer of such Notes (which legend
shall be set forth in the applicable Series Supplement) shall be effected
only if the conditions set forth in such applicable Series Supplement are
satisfied.  Notwithstanding any other
provision of this Section 2.8 and except as otherwise provided in Section 2.12,
the typewritten Note or Notes representing Book-Entry Notes for any Series may
be transferred, in whole but not in part, only to another nominee of the
Clearing Agency for such Series, or to a successor Clearing Agency for such Series selected
or approved by the Co-Issuers or to a nominee of such successor Clearing
Agency, only if in accordance with this Section 2.8 and Section 2.12.


 


(g)           If the Notes of any Series are
listed on a non-US stock exchange, the Trustee or the applicable non-US listing
agent, as the case may be, shall send to the Co-Issuers upon any transfer or
exchange of any such Note information reflected in the copy of the register for
the Notes maintained by the Registrar or the applicable non-US listing agent,
as the case may be.


 


Section 2.9             Persons Deemed Owners.


 


Prior to due presentment
for registration of transfer of any Note, the Trustee, any Agent and the
Co-Issuers may deem and treat the Person in whose name any Note is registered
(as of the day of determination) as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such Note and for
all other purposes whatsoever, whether or not such Note is overdue, and none of
the Trustee, any Agent or any Co-Issuer shall be affected by notice to the
contrary.


 


Section 2.10           Replacement Notes.


 


(a)           If (i) any mutilated Note is
surrendered to the Trustee, or the Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note and (ii) there
is delivered to the Trustee such security or indemnity as may be required by it
to hold the Co-Issuers and the Trustee harmless then, provided that the
requirements of Section 2.8(f) and Section 8-405 of the
New York UCC are met, the Co-Issuers shall execute and upon receipt by the
Trustee of a Company Request, the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost 


 


13

















 


or stolen Note, a replacement Note; provided, however,
that if any such destroyed, lost or stolen Note, but not a mutilated Note,
shall have become, or within seven (7) days shall be, due and payable,
instead of issuing a replacement Note, the Co-Issuers may instruct the Paying
Agent to pay such destroyed, lost or stolen Note when so due or payable without
surrender thereof.  If, after the
delivery of such replacement Note or payment of a destroyed, lost or stolen
Note pursuant to the proviso to the preceding sentence, a protected purchaser
(within the meaning of Section 8-303 of the New York UCC) of the
original Note in lieu of which such replacement Note was issued presents for
payment such original Note, the Co-Issuers and the Trustee shall be entitled to
recover such replacement Note (or such payment) from the Person to whom it was
delivered or any Person taking such replacement Note from such Person to whom
such replacement Note was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Co-Issuers or the Trustee in connection therewith.


 


(b)           Upon the issuance of any replacement
Note under this Section 2.10, the Co-Issuers may require the
payment by the Holder of such Note of a sum sufficient to cover any Tax or
other governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith.


 


(c)           Every replacement Note issued
pursuant to this Section 2.10 in replacement of any mutilated,
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Co-Issuers, and such replacement Note shall be
entitled to all the benefits of the Indenture equally and proportionately with
any and all other Notes duly issued under the Indenture (in accordance with the
priorities and other terms set forth herein and in each applicable Series Supplement).


 


(d)           The provisions of this Section 2.10
are exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes.


 


Section 2.11           Treasury Notes.


 


In determining whether
the Noteholders of the required Aggregate Outstanding Principal Amount of Notes
or the required Outstanding Principal Amount of any Series or any Class of
any Series of Notes, as the case may be, have concurred in any direction,
waiver or consent, Notes owned, legally or beneficially, by any Co-Issuer or
any Affiliate of any Co-Issuer shall be considered as though they are not
Outstanding, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes of which a Trust Officer has received written notice of such ownership
shall be so disregarded. Absent written notice to a Trust Officer of such
ownership, the Trustee shall not be deemed to have knowledge of the identity of
the individual Note Owners.


 


14

















 


Section 2.12           Book-Entry Notes.


 


(a)           Unless otherwise provided in any
applicable Series Supplement, the Notes of each Class of each Series,
upon original issuance, shall be issued in the form of typewritten Notes
representing Book-Entry Notes and delivered to the depository (or its
custodian) specified in such Series Supplement (the “Depository”)
which shall be the Clearing Agency on behalf of such Series or such
Class.  The Notes of each Class of
each Series shall, unless otherwise provided in the applicable Series Supplement,
initially be registered on the Note Register in the name of the Clearing Agency
or the nominee of the Clearing Agency. 
No Note Owner shall receive a definitive note representing such Note
Owner’s interest in the related Series of Notes, except as provided in Section 2.13.  Unless and until definitive, fully registered
Notes of any Series or any Class of any Series (“Definitive
Notes”) have been issued to Note Owners pursuant to Section 2.13:


 


(i)            the provisions of
this Section 2.12 shall be in full force and effect with respect to
each such Series;


 


(ii)           the Co-Issuers, the
Paying Agent, the Registrar and the Trustee may deal with the Clearing Agency
and the applicable Clearing Agency Participants for all purposes (including the
payment of principal of, premium, if any, and interest on the Notes and the
giving of instructions or directions hereunder or under the applicable Series Supplement)
as the sole Holder of the Notes, and shall have no obligation to the Note
Owners;


 


(iii)          to the extent that
the provisions of this Section 2.12 conflict with any other
provisions of the Indenture, the provisions of this Section 2.12
shall control with respect to each such Class or Series of the Notes;


 


(iv)          the rights of Note
Owners of each such Class or Series of Notes shall be exercised only
through the Clearing Agency and the applicable Clearing Agency Participants and
shall be limited to those established by law and agreements between such Note
Owners and the Clearing Agency and/or the Clearing Agency Participants, and all
references in the Indenture to actions by the Noteholders shall refer to
actions taken by the Clearing Agency upon instructions from the Clearing Agency
Participants, and all references in the Indenture to distributions, notices,
reports and statements to the Noteholders shall refer to distributions,
notices, reports and statements to the Clearing Agency, as registered Holder of
the Notes of such Series for distribution to the Note Owners in accordance
with the procedures of the Clearing Agency; and


 


(v)           whenever the
Indenture requires or permits actions to be taken based upon instructions or
directions of Noteholders evidencing a specified percentage of the Aggregate Outstanding
Principal Amount of Notes or the aggregate Outstanding Principal Amount of a Series or
Class of a Series of Notes, the applicable Clearing Agency shall be
deemed to represent such percentage only to the extent that it has received
instructions to such effect from Note Owners and/or their related Clearing
Agency Participants owning or representing, 


 


15

















 


respectively, such
required percentage of the beneficial interest in the Outstanding Notes or such
Series or such Class of such Series of Notes Outstanding, as the
case may be, and has delivered such instructions in writing to the Trustee.


 


(b)           Pursuant to the Depository Agreement
applicable to a Series, unless and until Definitive Notes of such Series are
issued pursuant to Section 2.13, the initial Clearing Agency shall
make book-entry transfers among the Clearing Agency Participants and receive
and transmit distributions of principal, premium, if any, and interest on the
Notes to such Clearing Agency Participants.


 


(c)           Whenever notice or other
communication to the Noteholders is required under the Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section 2.13,
the Trustee and the Co-Issuers shall give all such notices and communications
specified herein to be given to Noteholders to the applicable Clearing Agency
for distribution to the Note Owners.


 


Section 2.13           Definitive Notes.


 


(a)           The Notes of any Series or Class of
any Series, to the extent provided in the related Series Supplement, upon
original issuance, may be issued in the form of Definitive Notes.  All Variable Funding Senior Notes of any Series shall
be issued in the form of Definitive Notes. 
The applicable Series Supplement shall set forth the legend
relating to the restrictions on transfer of such Definitive Notes and such
other restrictions as may be applicable.


 


(b)           With respect to the Notes of any Series or
Class of any Series issued in the form of typewritten Notes
representing Book-Entry Notes, if (i) (A) the Co-Issuers advise the
Trustee in writing that the Clearing Agency with respect to any such Series of
Notes is no longer willing or able to discharge properly its responsibilities
under the applicable Depository Agreement and (B) the Trustee or the
Co-Issuers are unable to locate a qualified successor, (ii) the
Co-Issuers, at their option, advise the Trustee in writing that they elect to
terminate the book-entry system through the Clearing Agency with respect to any
Series or Class of any Series of Notes Outstanding issued in the
form of Book-Entry Notes or (iii) after the occurrence of an Early
Amortization Event, with respect to any Series of Notes Outstanding, Note
Owners holding a beneficial interest in excess of 50% of the aggregate Outstanding
Principal Amount of such Series of Notes advise the Trustee and the
applicable Clearing Agency through the applicable Clearing Agency Participants
in writing that the continuation of a book-entry system through the applicable
Clearing Agency is no longer in the best interests of such Note Owners, the
Trustee shall notify all Note Owners of such Series, through the applicable
Clearing Agency Participants, of the occurrence of any such event and of the
availability of Definitive Notes to Note Owners of such Series.  Upon surrender to the Trustee of the Notes of
such Series by the applicable Clearing Agency, accompanied by registration
instructions from the applicable Clearing Agency for registration, the
Co-Issuers shall execute and the Trustee shall authenticate, upon receipt of a
Company Order, and deliver an equal aggregate principal amount of Definitive
Notes in accordance with the instructions of the Clearing Agency.  Neither the Co-Issuers nor the Trustee shall
be 


 


16

















 


liable for any delay in delivery of such instructions
and may each conclusively rely on, and shall be protected in relying on, such
instructions.  Upon the issuance of
Definitive Notes of such Series or Class of such Series of Notes
all references herein to obligations imposed upon or to be performed by the
applicable Clearing Agency shall be deemed to be imposed upon and performed by
the Trustee, to the extent applicable with respect to such Definitive Notes,
and the Trustee shall recognize the Holders of the Definitive Notes of such Series or
Class of such Series as Noteholders of such Series or Class of
such Series hereunder and under the applicable Series Supplement.


 


Section 2.14           Cancellation.


 


The Co-Issuers may at any
time deliver to the Trustee for cancellation any Notes previously authenticated
and delivered hereunder which the Co-Issuers may have acquired in any manner
whatsoever, and all Notes so delivered shall be promptly cancelled by the
Trustee.  The Registrar and the Paying
Agent shall forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. 
The Trustee shall cancel all Notes properly surrendered for registration
of transfer, exchange, payment, replacement or cancellation.  Except as provided in any Variable Funding
Note Purchase Agreement executed and delivered in connection with the issuance
of any Series or any Class of any Series of Notes, the
Co-Issuers may not issue new Notes to replace Notes that they have redeemed or
paid or that have been delivered to the Trustee for cancellation.  All cancelled Notes held by the Trustee shall
be disposed of in accordance with the Trustee’s standard disposition procedures
unless the Co-Issuers shall direct that cancelled Notes be returned to them for
destruction pursuant to a Company Order. 
No cancelled Notes may be reissued.


 


Section 2.15           Principal and Interest.


 


(a)           The principal of and premium, if any,
on each Series of Notes shall be due and payable at the times and in the
amounts set forth in the applicable Series Supplement and in accordance
with the Sections 5.13 and 5.14.


 


(b)           Each Series of Notes shall
accrue interest as provided in the applicable Series Supplement, and such
interest shall be due and payable for such Series on each Payment Date in
accordance with Sections 5.13 and 5.14.


 


(c)           Except as provided in the following
sentence, the Person in whose name any Note is registered at the close of
business on any Record Date with respect to a Payment Date for such Note, or any date on
which payments are permitted to be made as provided for in the Indenture, shall be entitled to receive the
principal, premium, if any, and interest payable on such Payment Date
notwithstanding the cancellation of such Note upon any registration of
transfer, exchange or substitution of such Note subsequent to such Record
Date.  Any interest payable at maturity
of a Note shall be paid to the Person to whom the principal of such Note is
payable.


 


(d)           If the Co-Issuers default in the
payment of interest on the Notes of any Series, such interest, to the extent
paid on any date that is more than five (5) Business 


 


17

















 


Days after the applicable due date, shall, at the
option of the Co-Issuers (with written notice to the Trustee of such election),
cease to be payable to the Persons who were Noteholders of such Series on
the applicable Record Date, and the Co-Issuers shall pay the defaulted interest
in any lawful manner plus, to the extent lawful, interest payable on the
defaulted interest, to the Persons who are Noteholders of such Series on a
subsequent special record date which date shall be at least five (5) Business
Days prior to the date on which such interest is to be paid, at the rate
provided in the applicable Series Supplement and in the Notes of such
Series.  The Co-Issuers shall fix or
cause to be fixed each such special record date and related payment date, and
at least fifteen (15) days before the special record date, the Co-Issuers (or
the Trustee, in the name of and at the expense of the Co-Issuers) shall mail to
Noteholders of such Series a notice that states the special record date,
the related payment date and the amount of such interest to be paid.


 


(e)           Pursuant to the authority of the
Paying Agent under Section 2.6, the Paying Agent shall make all
payments of interest on the Notes net of any applicable withholding taxes and
Noteholders shall be treated as having received as payments of interest any
amounts withheld with respect to such withholding taxes.


 


Section 2.16           Tax Treatment.


 


The Co-Issuers have
structured the Indenture and the Notes have been (or will be) issued with the
intention that the Notes will qualify under applicable tax law as indebtedness
of the Co-Issuers or, if any of the Co-Issuers is disregarded as an entity
separate from its owner, such owner and any entity acquiring any direct or
indirect interest in any Note by acceptance of its Notes (or, in the case of a
Note Owner, by virtue of such Note Owner’s acquisition of a beneficial interest
therein) agrees to treat the Notes (or beneficial interests therein) for all
purposes of federal, state, local and foreign income or franchise Taxes and any
other Tax imposed on or measured by income, as indebtedness of the Co-Issuers
or, if any Co-Issuer is disregarded as an entity separate from its owner, such
owner.


 


ARTICLE III


 


SECURITY


 


Section 3.1             Grant of Security Interest.


 


(a)           Subject to the terms and conditions
of this Indenture, to secure the Obligations, each Co-Issuer hereby pledges,
assigns, conveys, delivers, transfers and sets over to the Trustee, for the
benefit of the Secured Parties, and hereby grants to the Trustee, for the
benefit of the Secured Parties, a security interest in, each Co-Issuer’s right,
title and interest in all of the following property to the extent now owned or
at any time hereafter acquired by such Co-Issuer (collectively, the “Collateral”):


 


(i)            (A) the
Collateral Bulk Gases Business Documents, including, without limitation, all
monies due and to become due to such Co-Issuer under or in connection with the
Collateral Bulk Gases Business Documents, 


 


18

















 


whether payable as
fees, rent, expenses, costs, indemnities, dividends, distributions, insurance
recoveries, damages for the breach of any of the Collateral Bulk Gases Business
Documents, termination payments or otherwise, and all security and supporting
obligations for such amounts payable thereunder and (B) all rights,
remedies, powers, privileges and claims of such Co-Issuer against any other
party under or with respect to the Collateral Bulk Gases Business Documents
(whether arising pursuant to the terms of the Customer Contracts or otherwise
available to such Co-Issuer at law or in equity), including the right to
enforce any of the Collateral Bulk Gases Business Documents and to give or
withhold any and all consents, requests, notices, directions, approvals,
extensions or waivers under or with respect to the Collateral Bulk Gases
Business Documents or the obligations of any party thereunder;


 


(ii)           without limitation
of clause (i) above, the Supply Contracts, the Equipment, the
Delivery Truck Leases, the Real Estate Leases, and all other related assets
such as the (800) number for the Call Center, all related systems, records and
software including, without limitation, all monies due and to become due to
such Co-Issuer under or in connection with any of the foregoing, whether
payable as refunds, rebates, fees, rent, expenses, costs, indemnities,
dividends, distributions, insurance recoveries, damages for the breach of any
agreement, termination payments or otherwise, and all security and supporting
obligations for such amounts payable thereunder and (B) all rights,
remedies, powers, privileges and claims of such Co-Issuer against any other
party under or with respect to any of the foregoing (whether arising pursuant
to the terms of any of the foregoing or otherwise available to such Co-Issuer
at law or in equity), including the right to enforce any of the foregoing and
to give or withhold any and all consents, requests, notices, directions,
approvals, extensions or waivers under or with respect to any of the foregoing
or the obligations of any party thereunder;


 


(iii)          the Collateral
Transaction Documents, including, without limitation, all monies due and to
become due to such Co-Issuer under or in connection with the Collateral
Transaction Documents, whether payable as fees, rent, expenses, costs,
indemnities, insurance recoveries, damages for the breach of any of the
Collateral Transaction Documents or otherwise, all security and supporting
obligations for amounts payable hereunder and thereunder and performance of all
obligations hereunder and thereunder, including, without limitation, (A) all
rights of such Co-Issuer to the Securitization IP under the Securitization IP
License Agreement to which such Co-Issuer is a party and (B) all rights of
such Co-Issuer under the Transaction Management Agreement, all rights of such
Co-Issuer in respect of the Master Management Agreement and all rights of such
Co-Issuer under the Replacement Management Agreement, and in and to all
records, reports and documents in which they have any interest thereunder, and
all rights, remedies, powers, privileges and claims of such Co-Issuer against
any other party under or with respect to the Collateral Transaction Documents
(whether arising pursuant to the terms of the Collateral Transaction Documents
or otherwise available to such Co-Issuer at law or in equity), including the
right to enforce any of the Collateral Transaction Documents and to 


 


19

















 


give or withhold
any and all consents, requests, notices, directions, approvals, extensions or
waivers under or with respect to the Collateral Transaction Documents or the
obligations of any party thereunder;


 


(iv)          the Equity Interests
of any Person owned by any Co-Issuer including, without limitation, the
membership interests in the Contract Holder, the Equipment Holder and the IP
Holder and the preferred membership interest in the Employee Company, and all
rights as a member or shareholder of each such Person under the Charter
Documents of each such Person, including, without limitation, all moneys and
other property distributable thereunder to any such Co-Issuer and all rights,
remedies, powers, privileges and claims of such Co-Issuer against any other
party under or with respect to each such Charter Document (whether arising
pursuant to the terms of such Charter Document or otherwise available to such
Co-Issuer at law or in equity), including the right to enforce each such
Charter Document and to give or withhold any and all consents, requests,
notices, directions, approvals, extensions or waivers under or with respect to
each such Charter Document;


 


(v)           the Securitization
IP, including all Proceeds and products of the foregoing, including all
goodwill symbolized by or associated with the Trademarks included in the
Securitization IP; provided that the grant of a security interest
hereunder shall not include any application for a Trademark that would be
deemed invalidated, canceled or abandoned due to the grant and/or enforcement
of such security interest, including, without limitation, all such United
States Trademark applications that are based on an intent-to-use, unless and
until such time that the grant and/or enforcement of the security interest will
not cause such Trademark to be deemed invalidated, canceled or abandoned; provided
further that the grant of a security interest hereunder shall not
include any Third Party IP License Agreements that cannot be assigned to the IP
Holder on or prior to the Closing Date;


 


(vi)          the Concentration
Account, the Equipment Holder Master Account, the Equipment Holder Operating
Account, the Equipment Holder CAPEX Account, the Insurance Proceeds Reserve
Account, the Tax Reserve Account and all other Securitization Entity Accounts,
each Account Agreement related thereto and all monies and other property
(including Investment Property and Financial Assets) on deposit or credited
from time to time in each such account and all Proceeds thereof; provided
that, for avoidance of doubt, the Surplus Account and the Employee Company
Account, and all monies and other property (including Investment Property and
Financial Assets) on deposit or credited from time to time in each such account
and all Proceeds thereof shall not constitute part of the Collateral or be
subject to the Lien of the Indenture;


 


(vii)         the Collection
Account and any sub-account thereof, the Cash Trap Reserve Account, the
Contributions Reserve Account, the Termination Amount Reserve Account, the
Hedge Payment Account, the Enhancement Payment Account and (subject to clause
(viii) and the related proviso below) all


 


20














 


other Base Indenture
Accounts, each Account Agreement related thereto and all monies and other
property (including Investment Property and Financial Assets) on deposit or
credited from time to time in each such account and all Proceeds thereof;


 


(viii)                        the Senior Note Interest Reserve Account,
any Account Agreement related thereto and all monies and other property
(including Investment Property and Financial Assets) on deposit or credited
from time to time in each such account and all Proceeds thereof;


 


(ix)                                each Series Account, each Account
Agreement related thereto and all monies and other property (including
Investment Property and Financial Assets) on deposit or credited from time to
time in each such account and all Proceeds thereof;


 


(x)                                   all other assets of the Co-Issuers now
owned or at any time hereafter acquired by such Co-Issuer, including, without
limitation, all of the following (each as defined in the New York UCC):
all accounts, chattel paper, deposit accounts, documents, general intangibles,
equipment, goods, instruments, securities accounts and other investment
property, commercial tort claims, letter-of-credit rights, letters of credit
and money;


 


(xi)                                all additional property that may from
time to time hereafter (pursuant to the terms of any Series Supplement or
otherwise) be subjected to the grant and pledge hereof by such Co-Issuer or by
anyone on its behalf; and


 


(xii)                             to the extent not otherwise included, all
Proceeds and products of any and all of the foregoing and all collateral
security and guarantees and other supporting obligations given by any Person
with respect to any of the foregoing;


 


provided, that the security interest set forth in clause (viii) above,
shall only be for the benefit of the Senior Noteholders and the Trustee, solely
in its capacity as trustee for the Senior Noteholders; and


 


provided, further, that:


 


(A)                              in no event
shall the security interest granted under this Section 3.1 attach
to any lease, license, contract, property rights or agreement to which any
Securitization Entity is a party or any of its rights or interests thereunder
if and for so long as the grant of such security interest shall constitute or
result in (i) the abandonment, invalidation or unenforceability of any
right, title or interest of any Securitization Entity therein or (ii) a
breach or termination pursuant to the terms of, or a default under, any such
lease, license, contract, property rights or agreement (other than to the
extent that any such term would be rendered ineffective pursuant to Sections
9-406, 9-407, 9-408 or 9-409 of the UCC (or any 


 


21

















 


successor
provision or provisions) of any relevant jurisdiction or any other applicable
law (including the Bankruptcy Code) or principles of equity);


 


(B)                                the Collateral
shall include and such security interest shall attach immediately at such time
as the condition causing such abandonment, invalidation or unenforceability
shall be remedied and to the extent severable, shall attach immediately to any
portion of such lease, license, contract, property rights or agreement that
does not result in any of the consequences specified in subclauses (i) or (ii) of
the preceding clause (A); and


 


(C)                                the exclusion
in Section 3.1(a)(A) above shall in no way be construed (y) so
as to limit, impair, or otherwise affect the Trustee’s continuing security
interests in and Liens upon any rights or interests of any Securitization
Entity in or to monies due or to become due under any such lease, license,
contract, property rights or agreement to which such Securitization Entity is a
party or (z) to limit, impair, or otherwise affect the Trustee’s
continuing security interests in and Liens upon any rights or interests of any
Securitization Entity in and to any proceeds from the sale, license, lease, or
other dispositions of any such any such lease, license, contract, property
rights or agreement to which such Securitization Entity is a party.


 


The Collateral shall secure the Obligations equally
and ratably without prejudice, priority or distinction (except, with respect to
any Series of Notes, as otherwise stated in the applicable Series Supplement
or in the applicable provisions of this Base Indenture).


 


(b)                                 The parties hereto agree and acknowledge
that a portion of the Collateral relating to certificated Equity Interests may
be held by a custodian on behalf of the Trustee, as directed by the Co-Issuers
pursuant to a Company Order.


 


Section 3.2                                      Certain Rights and Obligations of the Co-Issuers
Unaffected.


 


(a)                                  Notwithstanding the grant of the security
interest in the Collateral hereunder to the Trustee, on behalf of the Secured
Parties, the Co-Issuers acknowledge that the Transaction Manager, on behalf of
the Securitization Entities, including, without limitation, the IP Holder,
shall, subject to the terms and conditions of the Transaction Management
Agreement, nevertheless have the right, subject to the Trustee’s right to
revoke such right, in whole or in part, in the event of the occurrence and
continuation of an Event of Default, (i) to give all consents, requests,
notices, directions, approvals, extensions or waivers, if any, which are
required or permitted to be given under the Collateral Documents, and to
enforce all rights, remedies, powers, privileges and claims of each Co-Issuer
under the Collateral Documents, (ii) to give all consents, requests,
notices, directions and approvals, if any, which are required or permitted to
be given by any Co-Issuer under any Third Party IP License Agreement to which
such Co-Issuer is a 


 


22

















 


party and (iii) to take any and all other actions required or
permitted under the terms of the Transaction Management Agreement.


 


(b)                                 The grant of the security interest by the
Co-Issuers in the Collateral to the Trustee on behalf of the Secured Parties
shall not (i) relieve any Co-Issuer from the performance of any term,
covenant, condition or agreement on such Co-Issuer’s part to be performed or
observed under or in connection with any of the Collateral Documents or (ii) impose
any obligation on the Trustee or any of the Secured Parties to perform or
observe any such term, covenant, condition or agreement on such Co-Issuer’s
part to be so performed or observed or impose any liability on the Trustee or
any of the Secured Parties for any act or omission on the part of such
Co-Issuer or from any breach of any representation or warranty on the part of
such Co-Issuer.


 


(c)                                  Each Co-Issuer hereby jointly and
severally agrees to indemnify and hold harmless the Trustee (including its
directors, officers, employees and agents) from and against any and all losses,
liabilities (including liabilities for penalties), claims, demands, actions,
suits, judgments, and reasonable out-of-pocket costs and expenses arising out of
or resulting from the security interest granted hereby, whether arising by
virtue of any act or omission on the part of such Co-Issuer or otherwise,
including, without limitation, the reasonable out-of-pocket costs, expenses and
disbursements (including reasonable attorneys’ fees and expenses) incurred by
the Trustee in enforcing the Indenture or any other Related Document or
preserving any of its rights to, or realizing upon, any of the Collateral; provided, however,
that the foregoing indemnification shall not extend to any action by the
Trustee which constitutes negligence, bad faith or willful misconduct by the
Trustee or any other indemnified person hereunder. The indemnification provided
for in this Section 3.2 shall survive the removal of, or a resignation
by, such Person as Trustee as well as the termination of this Base Indenture or
any Series Supplement.


 


Section 3.3                                      Performance of Collateral Documents.


 


Upon the occurrence of a default or breach by any
Person party to (a) a Collateral Transaction Document or (b) a
Collateral Bulk Gases Business Document (only if a Master Manager Default,
Transaction Manager Default or an Event of Default has occurred and is
continuing), promptly following a written request from the Trustee to do so and
at the Co-Issuers’ expense, the Co-Issuers agree to take all such lawful action
as permitted under this Base Indenture as the Trustee (acting at the direction
of the Control Party) may reasonably request to compel or secure the
performance and observance by such Person of its obligations to the Co-Issuers,
and to exercise any and all rights, remedies, powers and privileges lawfully
available to the Co-Issuers to the extent and in the manner directed by the
Trustee (acting at the direction of the Control Party), including, without
limitation, the transmission of notices of default and the institution of legal
or administrative actions or proceedings to compel or secure performance by
such Person of its obligations thereunder. 
If (i) the Co-Issuers shall have failed, within fifteen (15) days
of receiving the direction of the Trustee to take action to accomplish such
directions of the Trustee, (ii) the Co-Issuers refuse to take any such
action or (iii) the Control Party determines on a commercially reasonable
basis that such action must be 


 


23

















 


taken immediately, in any such case the Trustee shall
take, at the expense of the Co-Issuers, such previously directed action and any
related action permitted under this Base Indenture which the Control Party
thereafter determines on a commercially reasonable basis is appropriate
(without the need under this provision or any other provision under this Base
Indenture to direct the Co-Issuers to take such action), on behalf of the Co-Issuers
and the Secured Parties.


 


Section 3.4                                      Stamp, Other Similar Taxes and Filing Fees.


 


Except as provided in Section 2.8(e), the
Co-Issuers shall jointly and severally indemnify and hold harmless the Trustee
and each Secured Party from any present or future claim for liability for any
stamp, documentary or other similar Tax and any penalties or interest and
expenses with respect thereto, that may be assessed, levied or collected by any
jurisdiction in connection with the Indenture, any other Related Document or
any Collateral.  Except as provided in Section 2.8(e),
the Co-Issuers shall pay, and jointly and severally indemnify and hold harmless
each Secured Party against, any and all amounts in respect of, all search,
filing, recording and registration fees and Taxes, excise Taxes and other
similar imposts that may be payable or determined to be payable in respect of
the execution, delivery, performance and/or enforcement of the Indenture or any
other Related Document.


 


Section 3.5                                      Authorization to File Financing Statements.


 


(a)                                  The Co-Issuers hereby irrevocably
authorize the Secured Parties at any time and from time to time during the term
of this Indenture to file or record in any filing office in any applicable
jurisdiction, including the PTO, financing statements and other filing or
recording documents or instruments with respect to the Collateral, including,
without limitation, any and all Securitization IP, to perfect the security
interests of the Trustee for the benefit of the Secured Parties under this Base
Indenture.  Each Co-Issuer authorizes the
filing of any such financing statement naming the Trustee as secured party and
indicating that the Collateral includes (a) “all assets” or words of
similar effect or import regardless of whether any particular assets comprised
in the Collateral fall within the scope of Article 9 of the UCC,
including, without limitation, any and all Securitization IP (other than
applications for Trademarks as described in Section 3.1(a)(v) above),
or (b) as being of an equal or lesser scope or with greater detail.  The Co-Issuers agree to furnish any
information necessary to accomplish the foregoing promptly upon the Trustee’s
request.  The Co-Issuers also hereby
ratify and authorize the filing on behalf of the Secured Parties of any
financing statement with respect to the Collateral made prior to the date
hereof.


 


(b)                                 Each Co-Issuer acknowledges that the
Collateral includes certain rights of the Co-Issuers as secured parties under
the Related Documents.  Each Co-Issuer
hereby irrevocably appoints the Trustee as its representative with respect to
all financing statements filed to perfect such security interests and
authorizes the Secured Parties to make such filings they deem necessary to
reflect the Trustee as secured party of record with respect to such financing
statements.


 


24

















 


ARTICLE IV


 


REPORTS


 


Section 4.1                                      Reports and Instructions to Trustee.


 


(a)                                  Weekly Manager’s Certificate. 
On each Weekly Reporting Date, the Transaction Manager (on behalf of the
Co-Issuers) shall furnish, or cause to be furnished, to the Trustee, the
Administrative Agent, the Replacement Manager and the Rating Agencies a
certificate containing at least the information set forth in Exhibit A
attached hereto (each certificate, a “Weekly Manager’s Certificate”).  Notwithstanding anything to
the contrary herein, the document attached hereto as Exhibit A as
of the date hereof, shall be replaced by the Transaction Manager (on behalf of
the Co-Issuers), acting in its sole discretion, following the Closing Date with
an actual form of Weekly Manager’s Certificate; provided that such form
of Weekly Manager’s Certificate shall include at least all of the information
set forth in the document attached hereto as Exhibit A as of the
date hereof.  Copies of such form of
Weekly Manager’s Certificate shall be furnished by the Co-Issuers or by the
Transaction Manager (on behalf of the Co-Issuers) to the Trustee, the
Administrative Agent, the Replacement Manager, and the Rating Agencies.


 


(b)                                 Monthly Manager’s Certificate. 
On or before each Determination Date, the Transaction Manager (on behalf
of the Co-Issuers) shall furnish, or cause to be furnished, to the Trustee, the
Master Manager, the Administrative Agent, the Rating Agencies, the Replacement
Manager and the Paying Agent a certificate containing at least the information
set forth in Exhibit B attached hereto (each certificate, a “Monthly
Manager’s Certificate”).  Notwithstanding
anything to the contrary herein, the document attached hereto as Exhibit B
as of the date hereof, shall be replaced by the Transaction Manager (on behalf
of the Co-Issuers), acting in its sole discretion, following the Closing Date
with an actual form of Monthly Manager’s Certificate; provided that such
form of Monthly Manager’s Certificate shall include at least all of the
information set forth in the document attached hereto as Exhibit B
as of the date hereof.  Copies of such
form of Monthly Manager’s Certificate shall be furnished by the Co-Issuers or
by the Transaction Manager (on behalf of the Co-Issuers) to the Trustee, the
Administrative Agent, the Replacement Manager, the Master Manager, the Paying
Agent and the Rating Agencies.


 


(c)                                  Noteholders’ Statement. 
On or before each Determination Date, the Transaction Manager (on behalf
of the Co-Issuers) shall furnish, or cause to be furnished, to the Trustee, the
Administrative Agent, the Replacement Manager and the Rating Agencies a
Noteholders’ Statement with respect to each Series of Notes substantially
in the form provided in the applicable Series Supplement.


 


(d)                                 Compliance Certificates. 
On or before each Determination Date, the Transaction Manager (on behalf
of the Co-Issuers) shall deliver, or cause to be delivered, to the Trustee, the
Administrative Agent, the Replacement Manager and the Rating Agencies an
Officer’s Certificate, substantially in the form of Exhibit E
attached hereto (each a “Compliance Certificate”), to the effect that,
except as has been provided 


 


25

















 


in a notice delivered pursuant to Section 8.8, no Early
Amortization Event or Event of Default has occurred or is continuing.


 


(e)                                  Annual Accountants’ Reports. 
As soon as available to the Transaction Manager pursuant to Section 6.1(a) of
the Transaction Management Agreement, the Transaction Manager (on behalf of the
Co-Issuers) shall furnish, or cause to be furnished, to the Trustee, the
Administrative Agent, the Replacement Manager and the Rating Agencies the
reports of the Independent Accountants required to be delivered to the
Transaction Manager by the Master Manager.


 


In the event the Independent Accountants require the
Trustee or the Administrative Agent to agree to the procedures performed by
such firm, the Transaction Manager shall direct the Trustee and/or the
Administrative Agent in writing to so agree, it being understood and agreed
that the Trustee and/or the Administrative Agent will deliver such letter of
agreement in conclusive reliance upon the direction of the Transaction Manager,
and neither the Trustee nor the Administrative Agent shall make any independent
inquiry or investigation as to, and shall have no obligation or liability in
respect of, the sufficiency, validity or correctness of such procedures.


 


(f)                                    Master Issuer Financial Statements. 
The Master Issuer shall furnish, or cause to be furnished by the
Transaction Manager, to the Trustee, the Administrative Agent, the Replacement
Manager and the Rating Agencies with respect to each Series of Notes
Outstanding the following financial statements:


 


(i)                                     as soon as available and in any event
within forty-five (45) days after the end of each of the first three quarters
of each fiscal year (or, within sixty (60) days after the end of the first
fiscal quarter ending after the Closing Date), unaudited consolidated balance
sheets of the Master Issuer as of the end of such quarter and unaudited
consolidated statements of income and cash flows of the Master Issuer for such
quarter and for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter; and


 


(ii)                                  as soon as available and in any event
within ninety (90) days after the end of each fiscal year, audited
consolidated balance sheets of the Master Issuer as of the end of such fiscal
year and audited consolidated statements of income and cash flows of the Master
Issuer for such fiscal year, setting forth in comparative form the figures for
the previous fiscal year prepared in accordance with GAAP and accompanied by an
opinion thereon of the Independent Accountants stating that such audited
financial statements present fairly, in all material respects, the financial
position of the companies being reported on and their results of operations and
have been prepared in accordance with GAAP.


 


(g)                                 NuCO2 Financial
Statements.  The Master Issuer shall furnish, or cause to
be furnished by the Master Manager, to the Trustee, the Administrative Agent,
the Replacement Manager and the Rating Agencies with respect to each Series of
Notes Outstanding the following financial statements:


 


26

















 


(i)                                     as soon as available and in any event
within forty-five (45) days after the end of each of the first three quarters
of each fiscal year (or, within sixty (60) days after the end of the first
fiscal quarter ending after the Closing Date), an unaudited consolidated
balance sheet of NuCO2 as
of the end of each of the first three quarters of each fiscal year and
unaudited consolidated statements of income and cash flows of NuCO2 for such
quarter and for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter; and


 


(ii)                                  as soon as available and in any event
within ninety (90) days after the end of each fiscal year, an audited
consolidated balance sheet of NuCO2 as of the end of each fiscal year and audited
consolidated statements of income and cash flows of NuCO2 for such fiscal
year, setting forth in comparative form the figures for the previous fiscal
year, prepared in accordance with GAAP and accompanied by an opinion thereon of
the Independent Accountants stating that such audited consolidated financial
statements present fairly, in all material respects, the financial position of
the companies being reported on and their results of operations and have been
prepared in accordance with GAAP.


 


(h)                                 Quarterly Customer Contracts Report. So long as the Series 2008-1 Class A
Notes are Outstanding, the Master Issuer shall furnish, or cause to be
furnished by the Transaction Manager, to the Rating Agencies, the Trustee, the
Administrative Agent and the Replacement Manager, within 45 days after the end
of each quarter, a report setting forth the activation and attrition rates with
respect to Customer Contracts for such quarter, substantially in the form of Exhibit G
attached hereto (each, a “Quarterly
Customer Contracts Report”).


 


(i)                                     Additional Information. 
The Master Issuer shall furnish, or cause to be furnished, from time to
time such additional information regarding the financial position, results of
operations or business of NuCO2,
the Employee Company, the Master Issuer or any Securitization Entity as the
Trustee, the Control Party or any Rating Agency may reasonably request.


 


(j)                                     Instructions as to Withdrawals and
Payments.  The Master Issuer shall furnish, or cause to
be furnished, to the Trustee or the Paying Agent, as applicable, written
instructions to make withdrawals and payments from the Collection Account and
any other Base Indenture Account or Series Account and to make drawings
under any Enhancement, as contemplated herein and in any Series Supplement.  The Trustee and the Paying Agent shall
promptly follow any such written instructions.


 


(k)                                  Replacement Manager Reports. 
The Master Issuer shall furnish to the Replacement Manager all reports
required pursuant to, and in compliance with, the Replacement Management
Agreement.


 


27

















 


Section 4.2                                      Annual Noteholders’ Tax Statement.


 


Unless otherwise specified in the applicable Series Supplement,
on or before January 31 of each calendar year, beginning with calendar
year 2009, the Paying Agent shall furnish to each Person who at any time during
the preceding calendar year was a Noteholder a statement prepared by the Master
Issuer, or by the Transaction Manager on its behalf, containing the information
which is required to be contained in the Noteholders’ Statements with respect
to each Series of Notes aggregated for such calendar year or the
applicable portion thereof during which such Person was a Noteholder, together
with such other customary information (consistent with the treatment of the
Notes as indebtedness) as the Master Issuer, or the Transaction Manager on its
behalf, deems necessary or desirable to enable the Noteholders to prepare their
tax returns (each such statement, an “Annual Noteholders’ Tax Statement”).  Such obligations of the Master Issuer to
prepare, or cause to be prepared, and the Paying Agent to distribute the Annual
Noteholders’ Tax Statement shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Paying Agent
pursuant to any requirements of the Code or other applicable tax law as from
time to time in effect.


 


Section 4.3                                      Rule 144A Information.


 


For so long as any of the Notes are “restricted
securities” within the meaning of Rule 144(a)(3) under the Securities
Act, the Co-Issuers agree to provide to any Noteholder or Note Owner and to any
prospective purchaser of Notes designated by such Noteholder or Note Owner upon
the request of such Noteholder or Note Owner or prospective purchaser, any
information required to be provided to such holder or prospective purchaser to
satisfy the conditions set forth in Rule 144A(d)(4) under the
Securities Act.


 


Section 4.4                                      Reports, Financial Statements and Other Information to
Noteholders.


 


The Trustee shall make the Weekly Manager’s
Certificates, the Compliance Certificates, the Monthly Manager’s Certificates
and the Noteholders’ Statements and any other notice or report received from or
on behalf of the Co-Issuers and the Administrative Agent pursuant to any
Related Document available to Noteholders, Note Owners and the Rating Agencies
via the Trustee’s internet website at www.usbank.com/abs.com.  Assistance in using such website can be
obtained by calling the Trustee’s customer service desk at (800) 934-6802; provided, however,
that as a condition to access to the Trustee’s website, the Trustee shall
require each Noteholder or Note Owner accessing its website to register as a
Noteholder or Note Owner, as the case may be, and to make a confirmation in
form and content similar to Exhibit F attached hereto; provided further
that no prospective purchaser shall have access to the aforementioned
information posted on the Trustee’s website, unless such prospective purchaser
certifies pursuant to a form similar in content to Exhibit F
attached hereto (or pursuant to such other form satisfactory to the Trustee)
that it is requesting such information solely for use in evaluating its
investment in any Series of Notes and will 


 


28

















 


otherwise keep such information confidential.  The Trustee shall have the right to change
the way such statements are electronically distributed in order to make such
distribution more convenient and/or more accessible to the above parties, and
the Trustee shall provide timely and adequate notification to all above Persons
regarding any such changes.  In addition,
at the written request of any Noteholder, any Note Owner or any prospective
purchaser of Notes designated by a Noteholder or Note Owner, the Trustee shall
send hard copies to such Noteholder, Note Owner or prospective purchaser of any
of the Related Documents or any of the following documents received by the
Trustee under the Indenture: Monthly Manager’s Certificates, Noteholders’
Statements, Officer’s Certificates required to be furnished to the Trustee
pursuant to Section 4.1, reports of the Independent Accountants
furnished to the Trustee pursuant to the Master Management Agreement and
financial statements required to be furnished to the Trustee pursuant to Section 4.1; provided, however,
that (i) prior to furnishing any such reports or certificates to any
Noteholder or Note Owner, the Trustee shall receive from such Noteholder or
Note Owner a confirmation, substantially in the form of Exhibit F,
executed by such Noteholder or Note Owner to the effect that, in the case of a
Note Owner, such Person is a beneficial holder of Notes and, in each case, such
Person is requesting the information solely for use in evaluating such Person’s
investment in Notes, shall otherwise keep such information confidential and (ii) prior
to furnishing any such reports or certificates to any prospective purchaser of
Notes designated by a Noteholder or Note Owner, the Trustee shall receive from
such prospective purchaser of Notes a confirmation, substantially in the form
of Exhibit F, executed by such prospective purchaser to the effect
that such Person is a prospective transferee of Notes, is requesting the
information solely for use in evaluating a possible investment in Notes, shall
otherwise keep such information confidential.


 


Section 4.5                                      Transaction Manager.


 


Pursuant to the Transaction Management Agreement, the
Transaction Manager has agreed to provide certain reports, notices,
instructions and other services on behalf of the Master Issuer and the other
Co-Issuers.  The Noteholders by their
acceptance of the Notes consent to the provision of such reports and notices to
the Trustee by the Transaction Manager, where applicable, in lieu of by the
Master Issuer or any other Co-Issuer. 
Any such reports and notices that are required to be delivered to the
Noteholders hereunder shall be delivered by the Trustee.  The Trustee shall have no obligation
whatsoever to verify, reconfirm or recalculate any information or material
contained in any of the reports, financial statements or other information
delivered to it pursuant to this Article IV or the Transaction
Management Agreement.  All distributions,
allocations, remittances and payments to be made by the Trustee or the Paying
Agent hereunder or under any Supplement or Variable Funding Note Purchase
Agreement shall be made based solely upon the most recently delivered written
reports and instructions provided to the Trustee or Paying Agent, as the case
may be, by the Transaction Manager.


 


29














 


ARTICLE V


 


ALLOCATION AND
APPLICATION OF COLLECTIONS


 


Section 5.1                                      Concentration Account.


 


(a)                                  Establishment of the Concentration
Account.  On or prior to the Closing Date, title to the
account to be designated as the “Concentration Account” shall be transferred
to the Master Issuer as agent on behalf of the Contract Holder.  Such account, as of the Closing Date and at
all times thereafter, shall be (A) owned by the Contract Holder, (B) pledged
to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1
and (C) subject to an Account Control Agreement.  The Concentration Account shall be an
Eligible Account.  If the Concentration
Account is at any time no longer an Eligible Account or the Master Issuer
decides to establish a new Concentration Account for any other reason, the
Master Issuer shall notify the Trustee and establish a new Concentration
Account that is an Eligible Account, that is owned by the Contract Holder, and
that is pledged to the Trustee for the benefit of the Secured Parties and
subject to an Account Control Agreement; provided that if the new
Concentration Account is established as a result of the existing Concentration
Account no longer being an Eligible Account, then notice to the Trustee and the
establishment of a new Concentration Account (subject to an Account Control
Agreement) satisfying all the requirements set forth in the first part of this
sentence will be accomplished within ten (10) Business Days of obtaining
knowledge that such Concentration Account is no longer an Eligible
Account.  If a new Concentration Account
is established as a result of the existing Concentration Account no longer
being an Eligible Account or for any other reason, the Master Issuer shall
transfer all cash and investments from the existing Concentration Account into
the new Concentration Account.  Subject
to the applicable Account Control Agreement, the Concentration Account shall be
maintained by the Transaction Manager on behalf of the Contract Holder.


 


(b)                                 Deposits.  The
Transaction Manager shall deposit (or cause to be deposited) the following
amounts into the Concentration Account within two (2) Business Days of
receipt thereof:


 


(i)                                     all Customer Collections;


 


(ii)                                  any reimbursements due the Contract
Holder from the Equipment Holder in connection with any payments made to third
parties by the Contract Holder on behalf of the Equipment Holder, including,
without limitation, in respect of any checks originally issued on or prior to
the Closing Date by NuCO2, in connection with the Bulk Gases
Business but transferred to the Contract Holder as a result of the applicable
Contribution Agreements; and


 


(iii)                               all Customer Location Equipment Resale
Revenues.


 


30

















 


(c)                                  Withdrawals. 
The Transaction Manager shall be permitted or required, in accordance
with this Indenture, to withdraw amounts on deposit in the Concentration
Account as follows:


 


(i)                                     on each Weekly Allocation Date, to
deposit to the Equipment Holder Master Account:


 


(A)                              the applicable Delivery and Customer
Services Fees;


 


(B)                                to the extent of Customer Location
Equipment Resale Revenues received in the Concentration Account during the
preceding Weekly Collection Period, an amount equal to the related Customer
Location Equipment Costs;


 


(C)                                the applicable Sales Tax Reimbursements;


 


(D)                               the applicable Property Tax
Reimbursements; and


 


(E)                                 the Customer Deposits deposited to the
Concentration Account during the preceding Weekly Collection Period.


 


(ii)                                  on an as needed basis, to make such payments
to third parties in respect of any checks originally issued on or prior to the
Closing Date by NuCO2, in connection with the Bulk Gases
Business but transferred to the Contract Holder as a result of the applicable
Contribution Agreements; and


 


(iii)                               on a monthly basis on the last Weekly
Allocation Date of each calendar month (after giving effect to the deposits
contemplated under clause (i) above), to deposit to the Collection Account
all amounts remaining in the Concentration Account after giving effect to the
payments, transfers and other withdrawals described above.


 


(d)                                 Administration of the Concentration
Account.  All amounts held in the Concentration Account
shall be invested in Permitted Investments at the written direction of the
Master Issuer, or the Transaction Manager on the Master Issuer’s behalf, and
such amounts may be transferred by the Master Issuer, or the Transaction
Manager on the Master Issuer’s behalf, into a money market account for the sole
purpose of investing in Permitted Investments so long as such money market
account is (A) an Eligible Account, (B) pledged to the Trustee
for the benefit of the Secured Parties pursuant to Section 3.1 and (C) subject
to an Account Control Agreement; provided, however, that any such
investment in the Concentration Account (or in any such money market account)
shall mature not later than the date on which such amount is required to be
transferred to the Collection Account or any Securitization Entity Account as
set forth herein.  In the absence of written
investment instructions hereunder, funds on deposit in the Concentration
Account shall be invested in money market funds described in clause (e) of
the definition of Permitted Investments. 
The Master Issuer shall not direct (or permit) the disposal of any
Permitted Investments prior to the maturity thereof to the 


 


31

















 


extent such disposal would result in a loss of the initial purchase
price of such Permitted Investment.


 


(e)                                  Earnings from the Concentration Account. 
All interest and earnings (net of losses and investment expenses) paid
on funds on deposit in the Concentration Account shall be deemed to be
Investment Income on deposit for distribution to the Collection Account in
accordance with Section 5.12.


 


Section 5.2                                      Securitization Entity Accounts.


 


Each Securitization Entity Account shall be an
Eligible Account that is pledged to, and subject to an Account Control
Agreement in favor of, the Trustee.


 


(a)                                  Equipment Holder Master Account. 
On or prior to the Closing Date, the Transaction Manager shall establish
and maintain an account designated as the “Equipment Holder Master Account”
in the name and for the benefit of the Equipment Holder.


 


(i)                                     Deposits.  On each
Weekly Allocation Date, the Transaction Manager shall withdraw from the
Concentration Account and deposit (or cause to be deposited) the sum of the
following amounts into the Equipment Holder Master Account:


 


(A)                              the applicable Delivery and Customer
Services Fees;


 


(B)                                to the extent of Customer Location
Equipment Resale Revenues received in the Concentration Account during the
preceding Weekly Collection Period, an amount equal to the related Customer
Location Equipment Costs;


 


(C)                                the applicable Sales Tax Reimbursements;


 


(D)                               the applicable Property Tax
Reimbursements; and


 


(E)                                 the Customer Deposits deposited to the
Concentration Account during the preceding Weekly Collection Period.


 


(ii)                                  Withdrawals. 
The Transaction Manager shall be permitted or required, in accordance
with the Indenture, to withdraw amounts on deposit in the Equipment Holder
Master Account as follows:


 


(A)                              on each Weekly Allocation Date, to
deposit to the Equipment Holder Operating Account: (i) the Equipment
Holder Operating Expense Fees, or, at the Transaction Manager’s discretion,
such other amount, up to in the aggregate the Equipment Holder Operating
Expense Cap, (ii) the Product and Lease Expenses relating to the preceding
Weekly Collection Period, (iii) the applicable Sales Tax 


 


32

















 


Reimbursements, (iv) the
applicable Property Tax Reimbursements, and (v) the Customer Deposits
deposited to the Concentration Account during the preceding Weekly Collection
Period; and


 


(B)                                on the last Weekly Allocation Date of
each calendar month (after giving effect to the deposits contemplated under the
foregoing clause (A)), to deposit to the Collection Account all amounts
remaining in the Equipment Holder Master Account after giving effect to the
payments, transfers and other withdrawals described above.


 


(b)                                 Equipment Holder Operating Account. 
On or prior to the Closing Date, the Transaction Manager shall establish
and maintain an account designated as the “Equipment Holder Operating
Account” in the name and for the benefit of the Equipment Holder.


 


(i)                                     Deposits.  The
Transaction Manager shall withdraw from the Equipment Holder Master Account and
deposit (or cause to be deposited) the following amounts into the Equipment
Holder Operating Account:


 


(A)                              on each Weekly Allocation Date, (i) the
Equipment Holder Operating Expense Fees, or, at the Transaction Manager’s
discretion, such other amount, up to in the aggregate the Equipment Holder
Operating Expense Cap, (ii) the Product and Lease Expenses relating to the
preceding Weekly Collection Period, (iii) the applicable Sales Tax
Reimbursements, (iv) the applicable Property Tax Reimbursements, and (v) the
Customer Deposits deposited to the Concentration Account during the preceding
Weekly Collection Period;


 


(B)                                any other amounts transferred into the
Equipment Holder Operating Account from the Master Issuer’s Surplus Account or
any of its other accounts in accordance with (or, not in contravention of) the
Related Documents; and


 


(C)                                any proceeds from the issuance of any Series 2008-1
Class A-2 Notes and any Series 2008-1 Class A-3 Notes.


 


(ii)                                  Withdrawals. 
The Transaction Manager shall be permitted or required, in accordance
with the Indenture, to withdraw amounts on deposit in the Equipment Holder
Operating Account as follows:


 


(A)                              on each Weekly Allocation Date, to
deposit to the Equipment Holder CAPEX Account, the Equipment Holder CAPEX Fees
solely from amounts deposited to the Equipment Holder Operating Account on such
date;


 


(B)                                on an as needed basis, to make all
payments and deposits required to be made pursuant to any agreement relating to
the 


 


33

















 


Equipment, the Delivery
Truck Leases, the Real Estate Leases and the Supply Contracts and any other
agreements with third parties;


 


(C)                                on an as needed basis, to pay the
Employee Services Fee;


 


(D)                               on an as needed basis, to reimburse the
Employee Company for any payments to third parties made by the Employee Company
on behalf of the Equipment Holder;


 


(E)                                 on an as needed basis, to make any and
all other payments and deposits related to the operation of the Bulk Gases
Business; and


 


(F)                                 on an as needed basis, to make all such
deposits to the Collection Account to pay the principal on the Series 2008-1
Class A-2 Notes and the Series 2008-1 Class A-3 Notes.


 


(c)                                  Equipment Holder CAPEX Account. 
On or prior to the Closing Date, the Transaction Manager shall establish
and maintain an account (which may be a sub-account of the Equipment Holder
Operating Account) designated as the “Equipment Holder CAPEX Account” in
the name and for the benefit of the Equipment Holder.


 


(i)                                     Deposits.  The
Transaction Manager shall withdraw from the Equipment Holder Operating Account
and deposit (or cause to be deposited) the Equipment Holder CAPEX Fees into the
Equipment Holder CAPEX Account on each Weekly Allocation Date solely from
amounts deposited to the Equipment Holder Operating Account on such date.


 


(ii)                                  Withdrawals. 
The Transaction Manager shall be permitted or required, in accordance
with the Indenture, to withdraw amounts on deposit in the Equipment Holder
CAPEX Account as follows:


 


(A)                              on an as needed basis, to make all
payments and deposits required to fund capital expenditures associated with the
Bulk Gases Business; and


 


(B)                                commencing on the Payment Date occurring
in January 2009 and on every Payment Date occurring in January and July thereafter,
to deposit to the Collection Account any Excess CAPEX Amounts for application
in accordance with clause tenth and clause fifteenth, as
applicable, of the Priority of Payments.


 


(d)                                 Insurance Proceeds Reserve Account. 
On or prior to the Closing Date, the Transaction Manager shall establish
and maintain an account designated as the “Insurance Proceeds Reserve
Account” in the name and for the benefit of the Co-Issuers.


 


34

















 


(i)                                     Deposits.  The
Transaction Manager shall withdraw from the Concentration Account and deposit
(or cause to be deposited) all Insurance Proceeds received by or on behalf of
any Securitization Entity into the Insurance Proceeds Reserve Account.


 


(ii)                                  Withdrawals. 
The Transaction Manager shall be permitted or required, in accordance
with the Indenture, to withdraw amounts on deposit in the Insurance Proceeds
Reserve Account as follows:


 


(A)                              on an as needed basis, to make payments
from Restoration Proceeds on behalf of the applicable Securitization Entity
towards the replacement or restoration of the applicable property or towards
the purchase of assets useful in the Bulk Gases Business as are from time to time
required if the Transaction Manager has elected to replace or restore such
property or purchase new property in accordance with the terms of this
Indenture; and


 


(B)                                on the last day of each Monthly
Collection Period, to deposit to the Collection Account (for application in
accordance with clause tenth or clause fifteenth, as applicable,
of the Priority of Payments) all other Insurance Proceeds Amounts, including,
without limitation, any Insurance Proceeds Amounts initially retained in the
Insurance Proceeds Reserve Account as Restoration Proceeds in accordance with clause
(A) above that have not been used for the contemplated restoration,
replacement or purchase within 360 days of receipt or with respect to property
that the Transaction Manager has determined not to replace or restore.


 


(e)                                  Tax Reserve Account. 
On or prior to the Closing Date, the Transaction Manager shall establish
and maintain an account designated as the “Tax Reserve Account” in the
name and for the benefit of the Co-Issuers.


 


(i)                                     Deposits.  The
Transaction Manager shall deposit (or cause to be deposited) all Tax Reserve
Amounts required to be deposited pursuant to clause seventh of the
Priority of Payments into the Tax Reserve Account.


 


(ii)                                  Withdrawals. 
The Transaction Manager shall be permitted or required, in accordance
with the Indenture, to withdraw amounts on deposit in the Tax Reserve Account
as follows:


 


(A)                              on an as needed basis, to make such
payments to any tax authorities on behalf of the Master Manager and its
Affiliates in an amount equal to any tax payments due on such date, including
any Tax Payment Deficiency pursuant to the terms hereof;


 


(B)                                on an as needed basis, to make such
reimbursements to the Master Manager in an amount equal to any tax payments
advanced by the Master Manager on behalf of itself and its 


 


35

















 


Affiliates for which the
Master Manager has not previously been reimbursed; and


 


(C)                                on an as needed basis, to deposit to the
Collection Account any amounts reasonably determined by the Master Manager to
be not needed to satisfy any tax liabilities within the twelve (12) months
following such withdrawal.


 


(f)                                    Administration of the Securitization
Entity Accounts.  All amounts held in each Securitization
Entity Account shall be invested in Permitted Investments at the written
direction of the Master Issuer, or the Transaction Manager on behalf of the
Master Issuer, and such amounts may be transferred by the Master Issuer, or the
Transaction Manager on behalf of the Master Issuer, into a money market account
for the sole purpose of investing in Permitted Investments so long as such
money market account is (A) an Eligible Account, (B) pledged
to the Trustee for the benefit of the Secured Parties pursuant to Section 3.1
and (C) subject to an Account Control Agreement; provided, however, that any such
investment in the Securitization Entity Account (or in any such money market
account) other than the Equipment Holder Operating Account shall mature not
later than the date on which such amount is required to be transferred to the
Collection Account or any Securitization Entity Account as set forth
herein.  In the absence of written
investment instructions hereunder, funds on deposit in the Securitization
Entity Accounts shall be invested in money market funds described in clause (e) of
the definition of Permitted Investments. 
The Master Issuer shall not direct (or permit) the disposal of any
Permitted Investments prior to the maturity thereof to the extent such disposal
would result in a loss of the initial purchase price of such Permitted
Investment.


 


(g)                                 Earnings from the Securitization Entity
Accounts.  All interest and earnings (net of losses and
investment expenses) paid on funds on deposit in the Securitization Entity Accounts
shall be deemed to be Investment Income on deposit for distribution to the
Collection Account in accordance with Section 5.12


 


Section 5.3                                      Senior Note Interest Reserve Account.


 


(a)                                  Establishment of the Senior Note Interest
Reserve Account.  On or prior to the Closing Date, the Master
Issuer shall establish and maintain an account in the name of the Trustee for
the benefit of the Senior Noteholders, bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the foregoing
Secured Parties (the “Senior Note Interest Reserve Account”).  The Senior Note Interest Reserve Account
shall be an Eligible Account.  If the
Senior Note Interest Reserve Account is at any time no longer an Eligible
Account, the Master Issuer shall, within ten (10) Business Days of
obtaining knowledge that the Senior Note Interest Reserve Account is no longer
an Eligible Account, notify the Trustee and establish a new Senior Note
Interest Reserve Account that is an Eligible Account.  If a new Senior Note Interest Reserve Account
is established the Master Issuer shall instruct the Trustee in writing to
transfer all cash and investments from the non-qualifying Senior Note Interest
Reserve 


 


36

















 


Account into the new Senior Note Interest Reserve Account.  Initially, the Senior Note Interest Reserve
Account shall be established with the Trustee.


 


(b)                                 Administration of the Senior Note
Interest Reserve Account.  All amounts held in the Senior
Note Interest Reserve Account shall be invested in Permitted Investments at the
written direction of the Master Issuer; provided, however, that
any such investment in the Senior Note Interest Reserve Account shall mature
not later than the Business Day prior to the next succeeding Payment Date.  In the absence of written investment
instructions hereunder, funds on deposit in the Senior Note Interest Reserve
Account shall be invested in money market funds described in clause (e) of
the definition of Permitted Investments. 
The Master Issuer shall not direct (or permit) the disposal of any
Permitted Investments prior to the maturity thereof to the extent such disposal
would result in a loss of the initial purchase price of such Permitted
Investment.


 


(c)                                  Earnings from the Senior Note Interest
Reserve Account.  All interest and earnings (net of losses and
investment expenses) paid on funds on deposit in the Senior Note Interest
Reserve Account shall be deemed to be Investment Income on deposit for
application to amounts required to be on deposit in the Senior Note Interest
Reserve Account or for distribution to the Collection Account in accordance
with Section 5.12.


 


Section 5.4                                      Cash Trap Reserve Account.


 


(a)                                  Establishment of the Cash Trap Reserve
Account.  On or prior to the Closing Date, the Master
Issuer shall establish and maintain an account in the name of the Trustee for
the benefit of the Secured Parties, bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Secured
Parties (the “Cash Trap Reserve Account”).  The Cash Trap Reserve Account shall be an
Eligible Account.  If the Cash Trap
Reserve Account is at any time no longer an Eligible Account, the Master Issuer
shall, within ten (10) Business Days of obtaining knowledge that the Cash
Trap Reserve Account is no longer an Eligible Account, notify the Trustee and
establish a new Cash Trap Reserve Account that is an Eligible Account.  If a new Cash Trap Reserve Account is established
the Master Issuer shall instruct the Trustee in writing to transfer all cash
and investments from the non-qualifying Cash Trap Reserve Account into the new
Cash Trap Reserve Account.  Initially,
the Cash Trap Reserve Account shall be established with the Trustee.


 


(b)                                 Administration of the Cash Trap Reserve
Account.  All amounts held in the Cash Trap Reserve
Account shall be invested in Permitted Investments at the written direction of
the Master Issuer; provided, however, that any such
investment in the Cash Trap Reserve Account shall mature not later than the
Business Day prior to the next succeeding Payment Date.  In the absence of written investment
instructions hereunder, funds on deposit in the Cash Trap Reserve Account shall
be invested in money market funds described in clause (e) of the
definition of Permitted Investments.  The
Master Issuer shall not direct (or permit) the disposal of any Permitted
Investments prior to the maturity thereof to the extent such disposal would
result in a loss of the initial purchase price of such Permitted Investment.


 


37

















 


(c)                                  Earnings from the Cash Trap Reserve
Account.  All interest and earnings (net of losses and
investment expenses) paid on funds on deposit in the Cash Trap Reserve Account
shall be deemed to be Investment Income on deposit for application to amounts
required to be on deposit in the Cash Trap Reserve Account or for distribution
to the Collection Account in accordance with Section 5.12.


 


Section 5.5                                      Contributions Reserve Account.


 


(a)                                  Establishment of the Contributions
Reserve Account.  On or prior to the Closing Date, the Master
Issuer shall establish and maintain an account in the name of the Trustee for
the benefit of the Secured Parties, bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Secured
Parties (the “Contributions Reserve Account”).  The Contributions Reserve Account shall be an
Eligible Account.  If the Contributions
Reserve Account is at any time no longer an Eligible Account, the Master Issuer
shall, within ten (10) Business Days of obtaining knowledge that the
Contributions Reserve Account is no longer an Eligible Account, notify the
Trustee and establish a new Contributions Reserve Account that is an Eligible
Account.  If a new Contributions Reserve
Account is established the Master Issuer shall instruct the Trustee in writing
to transfer all cash and investments from the non-qualifying Contributions
Reserve Account into the new Contributions Reserve Account.  Initially, the Contributions Reserve Account
shall be established with the Trustee.


 


(b)                                 Administration of the Contributions
Reserve Account.  All amounts held in the Contributions Reserve
Account shall be invested in Permitted Investments at the written direction of
the Master Issuer, or the Transaction Manager on behalf of the Master Issuer; provided, however,
that any such investment in the Contributions Reserve Account shall mature not
later than the Business Day prior to the next succeeding Payment Date.  In the absence of written investment
instructions hereunder, funds on deposit in the Contributions Reserve Account
shall be invested in money market funds described in clause (e) of the
definition of Permitted Investments.  The
Master Issuer shall not direct (or permit) the disposal of any Permitted
Investments prior to the maturity thereof to the extent such disposal would
result in a loss of the initial purchase price of such Permitted Investment.


 


(c)                                  Earnings from the Contributions Reserve
Account.  All interest and earnings (net of losses and
investment expenses) paid on funds on deposit in the Contributions Reserve
Account shall be deemed to be Investment Income on deposit for application to
amounts required to be on deposit in the Contributions Reserve Account or for
distribution to the Collection Account in accordance with Section 5.12.


 


Section 5.6                                      Termination Amount Reserve Account.


 


(a)                                  Establishment of the Termination Amount
Reserve Account.  On or prior to the Closing Date, the Master
Issuer shall establish and maintain an account in the name of the Trustee for
the benefit of the Secured Parties, bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Secured
Parties (the “Termination Amount Reserve Account”).  The Termination Amount 


 


38

















 


Reserve Account shall be an Eligible Account.  If the Termination Amount Reserve Account is
at any time no longer an Eligible Account, the Master Issuer shall, within ten (10) Business
Days of obtaining knowledge that the Termination Amount Reserve Account is no
longer an Eligible Account, notify the Trustee and establish a new Termination
Amount Reserve Account that is an Eligible Account.  If a new Termination Amount Reserve Account
is established the Master Issuer shall instruct the Trustee in writing to
transfer all cash and investments from the non-qualifying Termination Amount
Reserve Account into the new Termination Amount Reserve Account.  Initially, the Termination Amount Reserve
Account shall be established with the Trustee.


 


(b)                                 Administration of the Termination Amount
Reserve Account.  All amounts held in the Termination Amount
Reserve Account shall be invested in Permitted Investments at the written
direction of the Master Issuer, or the Transaction Manager on behalf of the
Master Issuer; provided, however, that any such investment
in the Termination Amount Reserve Account shall mature not later than the
Business Day prior to the next succeeding Payment Date.  In the absence of written investment
instructions hereunder, funds on deposit in the Termination Amount Reserve
Account shall be invested in money market funds described in clause (e) of
the definition of Permitted Investments. 
The Master Issuer shall not direct (or permit) the disposal of any
Permitted Investments prior to the maturity thereof to the extent such disposal
would result in a loss of the initial purchase price of such Permitted
Investment.


 


(c)                                  Earnings from the Termination Amount
Reserve Account.  All interest and earnings (net of losses and
investment expenses) paid on funds on deposit in the Termination Amount Reserve
Account shall be deemed to be Investment Income on deposit for application to
amounts required to be on deposit in the Termination Amount Reserve Account or
for distribution to the Collection Account in accordance with Section 5.12.


 


Section 5.7                                      Other Accounts.


 


(a)                                  Hedge Payment Account.


 


(i)                                     Establishment of the Hedge Payment
Account.  On or prior to the Closing Date, the Master Issuer
shall establish and maintain an account in the name of the Trustee for the
benefit of the Secured Parties, bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Secured Parties
(the “Hedge Payment Account”). 
The Hedge Payment Account shall be an Eligible Account.  If the Hedge Payment Account is at any time
no longer an Eligible Account, the Master Issuer shall, within ten (10) Business
Days of obtaining knowledge that the Hedge Payment Account is no longer an
Eligible Account, notify the Trustee and establish a new Hedge Payment Account
that is an Eligible Account.  If a new
Hedge Payment Account is established the Master Issuer shall instruct the
Trustee in writing to transfer all cash and investments from the non-qualifying
Hedge Payment Account into the new Hedge Payment Account.  Initially, the Hedge Payment Account shall be
established with the Trustee.


 


39














 


(ii)                                  Administration of the Hedge Payment
Account.  All amounts held in the Hedge Payment Account
shall be invested in Permitted Investments at the written direction of the
Master Issuer; provided, however, that any such investment
in the Hedge Payment Account shall mature not later than the Business Day prior
to the next succeeding Payment Date.  In
the absence of written investment instructions hereunder, funds on deposit in
the Hedge Payment Account shall be invested in money market funds described in
clause (e) of the definition of Permitted Investments.  The Master Issuer shall not direct (or
permit) the disposal of any Permitted Investments prior to the maturity thereof
to the extent such disposal would result in a loss of the initial purchase
price of such Permitted Investment.


 


(iii)                               Earnings from the Hedge Payment Account. 
All interest and earnings (net of losses and investment expenses) paid
on funds on deposit in the Hedge Payment Account shall be deemed to be
Investment Income on deposit for application to amounts required to be on
deposit in the Hedge Payment Account or for distribution to the Collection
Account in accordance with Section 5.12.


 


(b)                                 Enhancement Payment Account.


 


(i)                                     Establishment of the Enhancement Payment
Account.  On or prior to the Closing Date, the Master
Issuer shall establish and maintain an account in the name of the Trustee for
the benefit of the Secured Parties, bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Secured
Parties (the “Enhancement Payment Account”).  The Enhancement Payment Account shall be an
Eligible Account.  If the Enhancement
Payment Account is at any time no longer an Eligible Account, the Master Issuer
shall, within ten (10) Business Days of obtaining knowledge that the
Enhancement Payment Account is no longer an Eligible Account, notify the
Trustee and establish a new Enhancement Payment Account that is an Eligible
Account.  If a new Enhancement Payment
Account is established the Master Issuer shall instruct the Trustee in writing
to transfer all cash and investments from the non-qualifying Enhancement
Payment Account into the new Enhancement Payment Account.  Initially, the Enhancement Payment Account
will be established with the Trustee.


 


(ii)                                  Administration of the Enhancement Payment
Account.  All amounts held in the Enhancement Payment
Account shall be invested in Permitted Investments at the written direction of
the Master Issuer; provided, however, that any such
investment in the Enhancement Payment Account shall mature not later than the
Business Day prior to the next succeeding Payment Date.  In the absence of written investment
instructions hereunder, funds on deposit in the Enhancement Payment Account
shall be invested in money market funds described in clause (e) of the
definition of Permitted Investments.  The
Master Issuer shall not direct (or permit) the disposal of any Permitted
Investments prior 


 


40

















 


to the maturity thereof
to the extent such disposal would result in a loss of the initial purchase
price of such Permitted Investment.


 


(iii)                               Earnings from the Enhancement Payment
Account.  All interest and earnings (net of losses and
investment expenses) paid on funds on deposit in the Enhancement Payment
Account shall be deemed to be Investment Income on deposit for application to
amounts required to be on deposit in the Enhancement Payment Account or for
distribution to the Collection Account in accordance with Section 5.12.


 


Section 5.8                                      Collection Account.


 


(a)                                  Establishment of Collection Account. 
On or prior to the Closing Date, the Master Issuer shall establish and
shall maintain the Collection Account in the name of the Trustee for the
benefit of the Secured Parties, bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Secured Parties
(the “Collection Account”).  The
Collection Account shall be an Eligible Account.  If the Collection Account is at any time no
longer an Eligible Account, the Master Issuer shall, within ten (10) Business
Days of obtaining knowledge that the Collection Account is no longer an
Eligible Account, notify the Trustee and establish a new Collection Account
that is an Eligible Account.  If a new
Collection Account is established the Master Issuer shall instruct the Trustee
in writing to transfer all cash and investments from the non-qualifying
Collection Account into the new Collection Account.  Initially, the Collection Account shall be
established with the Trustee.


 


(b)                                 Administration of the Collection Account. 
All amounts held in the Collection Account shall be invested in
Permitted Investments at the written direction of the Master Issuer; provided, however,
that any such investment in the Collection Account shall mature not later than
the Business Day prior to the next succeeding Payment Date.  In the absence of written investment
instructions hereunder, funds on deposit in the Collection Account shall be
invested in money market funds described in clause (e) of the definition
of Permitted Investments.  The Master
Issuer shall not direct (or permit) the disposal of any Permitted Investments
prior to the maturity thereof to the extent such disposal would result in a
loss of the initial purchase price of such Permitted Investment.


 


(c)                                  Earnings from Collection Account. 
All interest and earnings (net of losses and investment expenses) paid
on funds on deposit in the Collection Account shall be deemed to be Investment
Income on deposit for distribution in accordance with Section 5.12.


 


Section 5.9                                      Collection Account Administrative Accounts.


 


(a)                                  Establishment of Collection Account
Administrative Accounts.  The Master Issuer shall
establish and maintain with the Trustee the following administrative
sub-accounts of the Collection Account, each of which shall be an Eligible
Account, each in the name of the Trustee for the benefit of the Secured
Parties, bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of 


 


41

















 


the Secured Parties entitled to payment from such sub-account
(collectively, the “Collection Account Administrative Accounts”); provided
that the Trustee shall not be required to establish separate physical accounts
for each Collection Account Administrative Account so long as the Trustee is
able to monitor the amounts in each Collection Account Administrative Account
while holding such amounts in the Collection Account:


 


(i)                                     an account for the deposit of the interest
on the Senior Notes, any Note Make Whole Premium, any Class A-2 Breakage
Amounts, and any Class A-3 Breakage Amounts applicable to the Senior Notes
(the “Senior Note Interest Account”);


 


(ii)                                  an account for the deposit of the Class A-2
Senior Note Commitment Fee Amount (the “Class A-2 Notes Commitment Fees
Account”);


 


(iii)                               an account for the deposit of the Class A-3
Senior Note Commitment Fee Amount (the “Class A-3 Notes Commitment Fees Account”);


 


(iv)                              an account for the deposit of the
Required Amortization Amounts, if any, any Indemnification Amounts, Asset
Disposition Prepayment Amounts, Insurance Proceeds Amounts, Excess CAPEX
Amounts or any other principal payments with respect to the Senior Notes  (the “Senior Note Principal Payments Account”);


 


(v)                                 an account for the deposit of the
interest on the Subordinated Notes and any Note Make Whole Premium applicable
to the Subordinated Notes (the “Subordinated
Note Interest Account”);


 


(vi)                              an account for the deposit of any
Indemnification Amounts, Asset Disposition Prepayment Amounts, Insurance
Proceeds Amounts, Excess CAPEX Amounts or any other principal payments with
respect to the Subordinated Notes (the “Subordinated Note Principal Payments Account”);


 


(vii)                           an account for the deposit of the Senior
Note Contingent Additional Interest Amount (the “Senior Note Contingent Additional Interest Account”); and


 


(viii)                        an account for the deposit of the
Subordinated Note Contingent Additional Interest Amount (the “Subordinated Note Contingent Additional
Interest Account”);


 


provided that if any Collection Account
Administrative Account is at any time no longer an Eligible Account, the Master
Issuer shall, within ten (10) Business Days of obtaining knowledge that
such Collection Account Administrative Account is no longer an Eligible
Account, notify the Trustee and establish a new Collection Account
Administrative Account that is an Eligible Account to replace such
non-qualifying Collection Account Administrative Account.  If a new Collection Account Administrative
Account is established the Master Issuer shall instruct the Trustee in writing
to transfer all cash and 


 


42

















 


investments from the non-qualifying Collection Account
Administrative Account into the new Collection Account Administrative Account.


 


(b)                                 Administration of the Collection Account
Administrative Accounts.  All amounts held in the
Collection Account Administrative Accounts shall be invested in Permitted
Investments at the written direction of the Master Issuer, or the Transaction
Manager on behalf of the Master Issuer; provided, however, that
any such investment in the Collection Account Administrative Accounts shall
mature not later than the Business Day prior to the next succeeding Payment
Date.  In the absence of written
investment instructions hereunder, funds on deposit in the Collection Account
Administrative Accounts shall be invested in money market funds described in
clause (e) of the definition of Permitted Investments.  The Master Issuer shall not direct (or
permit) the disposal of any Permitted Investments prior to the maturity thereof
to the extent such disposal would result in a loss of the initial purchase
price of such Permitted Investment.


 


(c)                                  Earnings from the Collection Account
Administrative Accounts.  All interest and earnings (net
of losses and investment expenses) paid on funds on deposit in the Collection
Account Administrative Accounts shall be deposited therein and shall be deemed
to be Investment Income on deposit for distribution in accordance with Section 5.12.


 


Section 5.10                                Trustee as Securities Intermediary.


 


(a)                                  The Trustee or other Person holding any
Base Indenture Account held in the name of the Trustee for the benefit of the
Secured Parties (collectively the “Master Issuer Trustee Accounts”)
shall be the “Securities Intermediary”. 
If the Securities Intermediary in respect of any Master Issuer Trustee
Account is not the Trustee, the Master Issuer shall obtain the express
agreement of such other Person to the obligations of the Securities
Intermediary set forth in this Section 5.10.


 


(b)                                 The Securities Intermediary agrees that:


 


(i)                                     The Master Issuer Trustee Accounts are
accounts to which “financial assets” within the meaning of Section 8-102(a)(9) (“Financial
Assets”) of the UCC in effect in the State of New York (the “New York
UCC”) will or may be credited;


 


(ii)                                  The Master Issuer Trustee Accounts will
be treated as “securities accounts” within the meaning of Section 8-501 of
the New York UCC and the Securities Intermediary qualifies as a “securities
intermediary” under Section 8-102(a) of the New York UCC;


 


(iii)                               All securities or other property (other
than cash) underlying any Financial Assets credited to any Master Issuer
Trustee Account shall be registered in the name of the Securities Intermediary,
indorsed to the Securities Intermediary or in blank or credited to another
securities account maintained in the name of the Securities Intermediary, 


 


43

















 


and in no case will any
Financial Asset credited to any Master Issuer Trustee Account be registered in
the name of the Master Issuer or any other Securitization Entity, payable to
the order of the Master Issuer or any other Securitization Entity or specially
indorsed to the Master Issuer or any other Securitization Entity;


 


(iv)                              All property delivered to the Securities
Intermediary pursuant to this Base Indenture will be promptly credited to the
appropriate Master Issuer Trustee Account;


 


(v)                                 Each item of property (whether investment
property, security, instrument or cash) credited to a Master Issuer Trustee
Account shall be treated as a Financial Asset under Article 8 of the
New York UCC;


 


(vi)                              If at any time the Securities
Intermediary shall receive any entitlement order from the Trustee (including
those directing transfer or redemption of any Financial Asset) relating to the
Master Issuer Trustee Accounts, the Securities Intermediary shall comply with
such entitlement order without further consent by the Master Issuer or any other
Person;


 


(vii)                           For purposes of all applicable UCCs,
New York shall be deemed to be the Securities Intermediary’s jurisdiction,
and the Master Issuer Trustee Accounts (as well as the “securities entitlements”
(as defined in Section 8-102(a)(17) of the New York UCC) related
thereto) shall be governed by the laws of the State of New York;


 


(viii)                        The Securities Intermediary has not
entered into, and until termination of this Base Indenture, will not enter
into, any agreement with any other Person relating to the Master Issuer Trustee
Accounts and/or any Financial Assets credited thereto pursuant to which it has
agreed to comply with entitlement orders (as defined in Section 8-102(a)(8) of
the New York UCC) of such other Person and the Securities Intermediary has
not entered into, and until the termination of this Base Indenture will not
enter into, any agreement with the Master Issuer or any Affiliate thereof
purporting to limit or condition the obligation of the Securities Intermediary
to comply with entitlement orders as set forth in Section 5.10(b)(vi);
and


 


(ix)                                Except for the claims and interest of the
Trustee, the Secured Parties, the Master Issuer and the other Securitization
Entities in the Master Issuer Trustee Accounts, neither the Securities Intermediary
nor, in the case of the Trustee, any Trust Officer knows of any claim to, or
interest in, the Master Issuer Trustee Accounts or in any Financial Asset
credited thereto.  If the Securities
Intermediary or, in the case of the Trustee, a Trust Officer has Actual
Knowledge of the assertion by any 


 


44

















 


other person of any Lien,
encumbrance, or adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against any Master Issuer
Trustee Account or in any Financial Asset carried therein, the Securities
Intermediary will promptly notify the Trustee and the Master Issuer thereof.


 


(c)                                  At any time after the occurrence and
during the continuation of an Event of Default, the Trustee shall possess all
right, title and interest in all funds on deposit from time to time in the
Master Issuer Trustee Accounts and in all proceeds thereof, and shall be the
only Person authorized to originate entitlement orders in respect of the Master
Issuer Trustee Accounts; provided, however, that at all
other times the Master Issuer, or the Transaction Manager on behalf of the
Master Issuer, shall, subject to the terms of the Indenture and the other
Related Documents, be authorized to instruct the Trustee to originate
entitlement orders in respect of the Master Issuer Trustee Accounts.


 


Section 5.11                                Establishment of Series Accounts.


 


To the extent specified in the Series Supplement
with respect to any Series of Notes, the Trustee may establish and
maintain one or more Series Accounts and/or administrative accounts of any
such Series Account in accordance with the terms of such Series Supplement.


 


Section 5.12                                Collections and Investment Income.


 


(a)                                  Collections in General. 
Until the Indenture is terminated pursuant to Section 11.1,
the Master Issuer (or the Transaction Manager on behalf of the Master Issuer)
shall cause all Collections due and to become due to the Master Issuer, any
other Securitization Entity or the Trustee, as the case may be, to the extent
not deposited to the Concentration Account to be deposited to the Collection
Account in the following manner:


 


(i)                                     on the last Weekly Allocation Date of
each calendar month, the Transaction Manager shall withdraw from the
Concentration Account for deposit to the Collection Account all amounts
remaining in the Concentration Account as of such date, after giving effect to
the payments, transfers and other withdrawals from the Concentration Account
pursuant to Section 5.1(c).


 


(ii)                                  on the last Weekly Allocation Date of
each calendar month, the Transaction Manager shall withdraw from the Equipment
Holder Master Account for deposit to the Collection Account all amounts
remaining in the Equipment Holder Master Account as of such date, after giving
effect to the payments, transfers and other withdrawals from the Equipment
Holder Master Account pursuant to Section 5.2(a)(ii).


 


(iii)                               as and when received, the Transaction
Manager shall cause all Contributions (other than any amount of equity
contributions made in cash by NuCO2 to the Master
Issuer that are not intended by NuCO2 to constitute



 


45

















 


‘‘Contributions’’
for inclusion in “Net Cash Flow” subject to the limitations set forth in the proviso to the definition of “Contributions”)
to be deposited to
the Collection Account;


 


(iv)                              as and when received, the Transaction
Manager shall cause any Asset Disposition Amounts, Indemnification Amounts and
Excess CAPEX Amounts to be deposited to the Collection Account;


 


(v)                                 on the last day of each Monthly
Collection Period, the Transaction Manager shall withdraw from the Insurance
Proceeds Reserve Account for deposit to the Collection Account all Insurance
Proceeds Amounts remaining in the Insurance Proceeds Reserve Account as of such
date;


 


(vi)                              as and when received, the Transaction
Manager shall cause all amounts and allocations distributed to the Master
Issuer as a result of its ownership of the preferred membership interests in
the Employee Company to be deposited to the Collection Account;


 


(vii)                           as and when received, the Transaction
Manager shall cause any amounts in respect of Permitted Hedges to be deposited
to the Collection Account; and


 


(viii)                        any other amounts required to be
deposited to the Collection Account shall be deposited thereto as provided for
under this Base Indenture.


 


(b)                                 Investment Income. 
On the Determination Date immediately prior to each Payment Date, the
Master Issuer, or the Transaction Manager on behalf of the Master Issuer, shall
instruct the Trustee to transfer any Investment Income on deposit in the Senior
Note Interest Reserve Account, the Cash Trap Reserve Account, the Contributions
Reserve Account, the Termination Amount Reserve Account, the Hedge Payment
Account, the Enhancement Payment Account, or the Collection Account
Administrative Accounts to the Collection Account.


 


(c)                                  Payment Instructions. 
In accordance with and subject to the terms of the Master Management
Agreement, the Master Issuer shall cause the Transaction Manager to instruct
each third party from which Customer Collections are received to make the
related payments to the Concentration Account; provided that, to the
extent such payments are made by check, such checks shall be deposited to the
Concentration Account within two (2) Business Days of receipt.


 


(d)                                 Misdirected Collections.


 


(i)                                     The Co-Issuers agree that if any
Collections shall be received by any Co-Issuer or any other Securitization
Entity in an account other than the Concentration Account or the Collection
Account or in any other manner, such monies, instruments, cash and other
proceeds will not be commingled by such Co-Issuer or such other Securitization
Entity with any of their other funds or 


 


46

















 


property, if any, but
shall be held separate and apart therefrom and shall be held in trust by such
Co-Issuer or such other Securitization Entity for, and, within one (1) Business
Day of the identification of such payment, paid over to, the Transaction
Manager or the Trustee, as applicable, for deposit to the appropriate account,
with any necessary endorsement.


 


(ii)                                  The Trustee shall withdraw from the
Collection Account any monies on deposit therein that the Transaction Manager
certifies to it are not Collections and pay such amounts to or at the direction
of the Transaction Manager.


 


(iii)                               All monies, instruments, cash and other
proceeds received by the Trustee pursuant to the Indenture shall be immediately
deposited in the Collection Account and shall be applied as provided in this Article V.


 


(iv)                              To the extent of amounts deposited in any
Securitization Entity Account that the Transaction Manager determines were
required to be deposited to another Securitization Entity Account pursuant to
the terms of the Base Indenture, the Transaction Manager agrees, within one (1) Business
Day of the identification of such amount, to transfer such amounts to such
other Securitization Entity Account.


 


Section 5.13                                Application of Collections on Payment Dates. 
On the Determination Date prior to each Payment Date, the Master Issuer,
or the Transaction Manager on behalf of the Master Issuer, shall instruct the
Trustee in writing (including, without limitation, pursuant to the Monthly
Manager’s Certificate) to withdraw or allocate the funds, including any
Investment Income available thereon, on deposit in the Collection Account on
such Payment Date as follows (the “Priority of Payments”); provided
that in connection with allocations to pay any interest amounts in respect of
any variable funding Notes which are based on a calculation of the CP Funding
Rate (as defined in the applicable Series Supplement), such instructions
shall constitute a reasonable estimate of the interest amounts due, subject to
appropriate adjustments and true-ups which the Master Issuer may instruct the
Trustee of in writing (including, without limitation, pursuant to the Monthly
Manager’s Certificate) on the immediately following Payment Date:


 


(i)                                                 first, to pay the Trustee for all accrued and unpaid fees
and expenses permitted under the Base Indenture (which expenses shall be
subject to the SPE Operating Expenses Cap);


 


(ii)                                              second, to pay to the Transaction Manager an amount equal to
the Transaction Management Fee together with any accrued and unpaid Transaction
Management Fees;


 


(iii)                                           third, to pay the incurred SPE Operating Expenses in an
aggregate amount up to the SPE Operating Expenses Cap;


 


47

















 


(iv)                                          fourth, to allocate to the Senior Note Interest Account, the
accrued and unpaid Senior Note Interest Amount (including any accrued and
unpaid interest on such unpaid Senior Note Interest Amount, if any) for such
Payment Date;


 


(v)                                             fifth, to deposit or pay, ratably according to the amounts
required to be deposited or paid set forth in subclauses (A) through (D) below,
the following amounts until the amount required to be deposited or paid
pursuant to subclauses (A) through (D) below is deposited or paid in
full:


 


(A)                              to the Class A-2 Notes Commitment
Fees Account, the accrued and unpaid Class A-2 Senior Note Commitment Fee
Amount;


 


(B)                                to the Class A-3 Notes Commitment
Fees Account, the accrued and unpaid Class A-3 Senior Note Commitment Fee
Amount;


 


(C)                                to the Enhancement Payment Account, the
Enhancement Payment Amount, if any; and


 


(D)                               to the Hedge Payment Account, the accrued
and unpaid Series Hedge Payment Amount, if any, payable to each Hedge
Counterparty pro rata  according to the amount due and payable
to each of them; provided, that the deposit to the Hedge Payment
Account pursuant to this subclause (D) will exclude any termination
payment payable to a Hedge Counterparty, if any, without regard to whether the
Hedge Counterparty was the defaulting party or an affected party or any other
unscheduled amount due and payable to a Hedge Counterparty, if any, and will
exclude any indemnity payment, tax payments or other similar amounts not
constituting regularly scheduled hedge payments;


 


(vi)                                          sixth, to deposit into the Senior Note Interest Reserve
Account, an amount equal to the Senior Note Interest Reserve Account Deficit
Amount on such Payment Date (calculated after giving effect to any deposit to
the Senior Note Interest Reserve Account on the applicable Draw Date pursuant
to Section 5.14(i)(v)) with respect to each Class of Senior Notes; provided,
however, that no amounts, with respect to any Series of Notes,
shall be deposited into the Senior Note Interest Reserve Account pursuant to
this clause sixth on any Payment Date that occurs on or after the Series Adjusted
Repayment Date;


 


(vii)                                       seventh, to deposit the applicable Tax Reserve Amount to the
Tax Reserve Account;


 


(viii)                                    eighth, so long as no Early Amortization Event has occurred
and is continuing, (i) first, to deposit pro rata (a) to
the Senior Note Principal Payments Account the Required Amortization Amounts,
if any, relating to the applicable Series 2008-1 Notes, and (b) to
the Senior Note Interest Account any Class A-2 Breakage Amounts or Class A-3
Breakage Amounts, as the case 


 


48

















 


may be, relating to the
applicable Series 2008-1 Notes, and (ii) second, to pay the
Final Payment on the applicable Series Legal Final Maturity Date;


 


(ix)                                            ninth, to pay the Trustee, the Administrative Agent, the Class A-2
Administrative Agent, the Class A-3 Administrative Agent or the
Replacement Manager, as applicable, for any reimbursable expenses permitted
hereunder (including the SPE Operating Expenses) not otherwise covered by clause
first and clause third above, unless such expenses are deferred
by the Trustee, the Administrative Agent, the Class A-2 Administrative
Agent, the Class A-3 Administrative Agent or the Replacement Manager, as
applicable;


 


(x)                                               tenth, ratably on such amounts, (A) to deposit to the
Senior Note Principal Payments Account, the aggregate Additional Senior Note
Prepayment Amount, if any, up to the amount necessary to cause the Aggregate
Outstanding Principal Amount of the Senior Notes Outstanding to be paid in
full, and (B) to deposit to the Senior Note Interest Account, the entire
amount of any corresponding Note Make Whole Premium applicable to the Senior
Notes with respect to such Payment Date and any such amounts remaining unpaid
from all prior Payment Dates;


 


(xi)                                            eleventh, so long as no Early Amortization Event has occurred
and is continuing, (i) first, to the extent that a Cash Trapping
Period is in effect, to deposit into the Cash Trap Reserve Account, an amount
equal to the Cash Trapping Amount, if any, on such Payment Date and (ii) second,
with respect to any Series of Senior Notes issued after the Closing Date,
to deposit pro rata into (a) the Senior Note Principal Payments
Account, the applicable Required Amortization Amounts, if any, and (b) the
Senior Note Interest Account, any breakage amounts relating to such Series of
Senior Notes issued after the Closing Date;


 


(xii)                                         twelfth, if such Payment Date occurs during an Early
Amortization Period, to allocate to the Senior Note Principal Payments Account
all remaining funds on deposit in the Collection Account on such Payment Date
until no principal amounts with respect to any Class A Notes are
Outstanding;


 


(xiii)                                      thirteenth, to deposit to the Termination Amount Reserve Account
all remaining funds on deposit in the Collection Account on such Payment Date,
up to the Aggregate Termination Amount relating to such Payment Date and any
unpaid Termination Amount Shortfall from Prior Payment Dates;


 


(xiv)                                     fourteenth, to allocate to the Subordinated Note Interest
Account, the Subordinated Notes Interest Amount for such Payment Date
(including any accrued and unpaid interest on such unpaid Subordinated Notes
Interest Amount, if any);


 


(xv)                                        fifteenth, ratably on such amounts, (A) to deposit to the
Subordinated Note Principal Payments Account, the aggregate Additional


 


49














 


Subordinated Note
Prepayment Amount, if any, up to the amount necessary to cause the Aggregate
Outstanding Principal Amount of the Subordinated Notes Outstanding to be paid
in full, and (B) to deposit to the Subordinated Note Interest Account, the
entire amount of any corresponding Note Make Whole Premium applicable to the
Subordinated Notes with respect to such Payment Date and any such amounts
remaining unpaid from all prior Payment Dates;


 


(xvi)                                     sixteenth, if such Payment Date occurs during an Early Amortization
Period and no amounts are due but unpaid on any Class of Senior Notes, to
allocate to the Subordinated Note Principal Payments Account, all remaining
funds on deposit in the Collection Account on such Payment Date until no
principal amounts with respect to the Subordinated Notes are Outstanding;


 


(xvii)                                  seventeenth, to allocate to the Senior Note
Contingent Additional Interest Account, the accrued and unpaid Senior Note
Contingent Additional Interest Amount (including any accrued and unpaid interest
on such unpaid Senior Note Contingent Additional Interest Amount) for such
Payment Date;


 


(xviii)                               eighteenth, to allocate to the Subordinated Note Contingent
Additional Interest Account, the accrued and unpaid Subordinated Note
Contingent Additional Interest Amount (including any accrued and unpaid
interest on such unpaid Subordinated Note Contingent Additional Interest
Amount) for such Payment Date;


 


(xix)                                       nineteenth, to pay, ratably according to the amounts required to
be paid set forth in subclauses (A) through (D) below, the following
amounts until the amounts required to be paid pursuant to subclauses (A) through
(D) below are paid in full:


 


(A)                              to pay any SPE Operating Expenses to the
extent not covered by clause first, clause third, and clause
ninth above;


 


(B)                                to pay to each Class A-2
Administrative Agent (or other Person acting in a similar capacity in respect
of the Class A-2 Notes) on behalf of itself or on behalf of the Holders of
the Class A-2 Notes, as applicable, pursuant to each Class A-2 Note
Purchase Agreement (or other similar agreement), an amount equal to any accrued
and unpaid Class A-2 Other Amounts due under the related Class A-2
Note Purchase Agreement (or other similar agreement), pro rata
based on all such amounts due under each Class A-2 Note Purchase Agreement
for such Payment Date;


 


(C)                                to pay to each Class A-3
Administrative Agent (or other Person acting in a similar capacity in respect
of the Class A-3 Notes) on behalf of itself or on behalf of the Holders of
the Class A-3 Notes, as applicable, pursuant to each Class A-3 Note
Purchase Agreement (or other similar agreement), an amount equal to any accrued
and unpaid Class A-3 


 


50

















 


Other Amounts due under
the related Class A-3 Note Purchase Agreement (or other similar
agreement), pro  rata based on all such amounts due under each Class A-3
Note Purchase Agreement for such Payment Date; and


 


(D)                               to deposit to the Hedge Payment Account, (A) any
accrued and unpaid Series Hedge Payment Amount that constitutes a
termination payment payable to a Hedge Counterparty, if any; and (B) any
other amount payable to a Hedge Counterparty, if any, pursuant to the related
Interest Rate Hedge, in each case pro rata
to each Hedge Counterparty, if any, according to the amount due and payable to
each of them;


 


(xx)                                          twentieth, to deposit to the Equipment Holder Operating Account
amounts equal to the Additional Equipment Holder Operating Expenses;


 


(xxi)                                       twenty-first, to pay the Note Make Whole Premium, if
any, to the extent not already paid pursuant to clause tenth and clause
fifteenth, as applicable, above;


 


(xxii)                                    twenty-second, to deposit to the Contributions Reserve
Account all remaining funds on deposit in the Collection Account on such
Payment Date, up to the Aggregate Contributions Amount relating to such Payment
Date and any unpaid Contributions Amount Shortfall from Prior Payment Dates;
and


 


(xxiii)                                 twenty-third, to pay the remaining amount, if any
(the “Surplus Amount”), to or at the direction of the Master Issuer.


 


Section 5.14                                Application of Funds.


 


On
each Payment Date, amounts deposited in the Collection Account and allocated to
the Collection Account Administrative Accounts, or withdrawn from the Senior
Note Interest Reserve Account or the Cash Trap Reserve Account, as the case may
be, will be available to the Trustee to remit all applicable amounts on such
Payment Date pursuant to the related Monthly Manager’s Certificate and the
terms hereof in accordance with the following:


 


(a)                                  Senior Note Interest
Account.  On each Determination Date,
after giving effect to the allocations set forth in the Priority of Payments,
the Transaction Manager shall instruct the Trustee in writing to withdraw on
the related Payment Date: (i) the funds allocated to the Senior Note
Interest Account on such Payment Date to be paid in the following order: (A) to
the applicable Class of Senior Notes (including the Series 2008-1 Class A
Notes) from the Collection Account, up to the accrued and unpaid Senior Note
Interest Amount, in the order of priority set forth in Section 6.1,
and (B) to the applicable Class of Senior Notes (including the Series 2008-1
Class A Notes) from the Collection Account, up to the applicable accrued
and unpaid Note Make Whole Premium, Class A-2 Breakage Amounts and Class A-3
Breakage Amounts, as the case may be, in 


 


51

















 


the order of priority set forth in Section 6.1,
and pay such amounts to the Holders of Class A Notes entitled thereto
pursuant to this Base Indenture and the applicable Series Supplement, and (ii) if
the amount of funds allocated to the Senior Note Interest Account referred to
in the immediately preceding clause
(i)(A) is less
than the accrued and unpaid Senior Note Interest Amount for the related
Interest Period, first,
an amount equal to the lesser of (A) such insufficiency and (B) the
balance on deposit in the Senior Note Interest Reserve Account, from the Senior
Note Interest Reserve Account, and second,
if an insufficiency still exists, an amount equal to the lesser of (A) such
insufficiency and (B) the balance on deposit in the Cash Trap Reserve
Account, from the Cash Trap Reserve Account, up to the accrued and unpaid
Senior Note Interest Amount, in the order of priority set forth in Section 6.1,
and pay such amounts to the Holders of Class A Notes entitled thereto
pursuant to this Base Indenture and the applicable Series Supplement.


 


(b)                                 Class A-2 Notes Commitment Fees
Account.  On each Determination Date, after giving
effect to the allocations set forth in the Priority of Payments, the Transaction
Manager shall instruct the Trustee in writing to withdraw on the related
Payment Date: (i) the funds allocated to the Class A-2 Notes
Commitment Fees Account on such Payment Date to be paid to the applicable Class A-2
Notes from the Collection Account, up to the Class A-2 Senior Note
Commitment Fee Amount accrued and unpaid with respect to the applicable Class A-2
Notes, pro rata  among each Class of Class A-2
Notes based upon the Class A-2 Senior Note Commitment Fee Amount payable
with respect to such Class, and pay such funds to the Holders of Class A-2
Notes entitled thereto pursuant to this Base Indenture and the applicable Series Supplement,
and (ii) if the amount of funds allocated to the Class A-2 Notes
Commitment Fees Account referred to in the immediately preceding clause (i) is less than the accrued and unpaid Class A-2 Senior
Note Commitment Fee Amount for the related Interest Period, an amount equal to
the lesser of (A) such insufficiency and (B) after giving effect to
the ratable manner in which funds are allocated in clause fifth  of
the Priority of Payments, such ratable portion of the Senior Note Available
Reserve Account Amount which is allocable to pay off the Class A-2 Senior
Note Commitment Fee Amount for such related Interest Period from, first, the Senior Note Interest
Reserve Account, and, if such insufficiency still exists, second, the Cash Trap Reserve
Account, to be paid to the Class A-2 Notes up to the Class A-2 Senior
Note Commitment Fee Amount, pro
rata  among each Class of
Class A-2 Notes based upon the Class A-2 Senior Note Commitment Fee
Amount payable with respect to such Class, and pay such amounts to the Holders
of Class A-2 Notes entitled thereto pursuant to this Base Indenture and
the applicable Series Supplement.


 


(c)                                  Class A-3
Notes Commitment Fees Account.  On each Determination Date, after giving
effect to the allocations set forth in the Priority of Payments, the
Transaction Manager shall instruct the Trustee in writing to withdraw on the
related Payment Date: (i) the funds allocated to the Class A-3 Notes
Commitment Fees Account on such Payment Date to be paid to the applicable Class A-3
Notes from the Collection Account, up to the Class A-3 Senior Note Commitment
Fee Amount accrued and unpaid with respect to the applicable Class A-3
Notes, pro rata among each Class of
Class A-3 Notes based upon the Class A-3 Senior Note Commitment Fee
Amount payable with respect to such Class, and pay such amounts to the Holders
of 


 


52

















 


Class A-3 Notes entitled thereto
pursuant to this Base Indenture and the applicable Series Supplement, and (ii) if
the amount of funds allocated to the Class A-3 Notes Commitment Fees
Account referred to in the immediately preceding clause (i) is
less than the accrued and unpaid Class A-3 Senior Note Commitment Fee
Amount for the related Interest Period, an amount equal to the lesser of (A) such
insufficiency and (B) after giving effect to the ratable manner in which
funds are allocated in clause fifth  of the Priority of Payments, such ratable
portion of the Senior Note Available Reserve Account Amount which is allocable
to pay off the Class A-3 Senior Note Commitment Fee Amount for such related
Interest Period from, first, the
Senior Note Interest Reserve Account, and, if such insufficiency still exists, second, the Cash Trap Reserve Account, to
be paid to the Class A-3 Notes up to the Class A-3 Senior Note
Commitment Fee Amount, pro rata among
each Class of Class A-3 Notes based upon the Class A-3 Senior
Note Commitment Fee Amount payable with respect to such Class, and pay such
amounts to the Holders of Class A-3 Notes entitled thereto pursuant to
this Base Indenture and the applicable Series Supplement.


 


(d)                                 Senior Note
Principal Payments Account.  On each Determination Date, after giving
effect to the allocations set forth in the Priority of Payments, the
Transaction Manager shall instruct the Trustee in writing to withdraw on the
related Payment Date: (i) the funds allocated to the Senior Note Principal
Payments Account on such Payment Date to be paid, in the following order: (A) to
each applicable Series 2008-1 Class A-2 Note (as defined in the Series 2008-1
Supplement) or Series 2008-1 Class A-3 Note (as defined in the Series 2008-1
Supplement), as the case may be, from the Collection Account up to the
aggregate amount of the accrued and unpaid Required Amortization Amounts
relating to any Series 2008-1 Class A-2 Notes or Series 2008-1 Class A-3
Notes, as the case may be, owed to such Series 2008-1 Class A-2 Note
or Series 2008-1 Class A-3 Note, as the case may be, in the order of
priority set forth in Section 6.1, (B) to each applicable Class of
Senior Notes from the Collection Account up to the aggregate amount of the
accrued and unpaid Indemnification Amounts, Asset Disposition Prepayment
Amounts, Insurance Proceeds Amounts and Excess CAPEX Amounts, if any, owed to
such Class of Senior Notes in the order of priority set forth in Section 6.1,
(C) to each
applicable Class of Senior Notes issued following the Closing Date from
the Collection Account up to the aggregate amount of accrued and unpaid
Required Amortization Amounts owed to such Class of Senior Notes in the
order of priority set forth in Section 6.1  and (D) to
each applicable Class of Senior Notes from the Collection Account up to
the amounts distributed to such administrative account pursuant to clause twelfth  of the Priority of Payments owed to such Class of
Senior Notes, in the order of priority set forth in Section 6.1,
and pay such amounts to the Holders of Class A Notes entitled thereto
pursuant to this Base Indenture and the applicable Series Supplement and (ii) if
an Early Amortization Event has occurred and is continuing on such Payment
Date, the amounts on deposit in the Cash Trap Reserve Account (after giving
effect to any payments made from the Cash Trap Reserve Account pursuant to this
Base Indenture), if any, to be paid to each applicable Class of Senior
Notes up to the Aggregate Outstanding Principal Amount of all Senior Notes
after giving effect to the application of the amounts on deposit in the Senior
Note Principal Payments Account referred to in the preceding clause (i) above, in the order of priority set forth in Section 


 


53

















 


6.1, and pay such amounts to
the Holders of Class A Notes entitled thereto pursuant to this Base
Indenture and the applicable Series Supplement.


 


(e)                                  Subordinated
Note Interest Account.  On
each Determination Date, after giving effect to the allocations set forth in
the Priority of Payments, the Transaction Manager shall instruct the Trustee in
writing to withdraw on the related Payment Date: (i) the funds allocated
to the Subordinated Note Interest Account on such Payment Date to be paid in
the following order: (A) to the applicable Class of Subordinated
Notes from the Collection Account, up to the accrued and unpaid Subordinated
Notes Interest Amount, in the order of priority set forth in Section 6.1,
and (B) to the applicable Class of Subordinated Notes, up to the
applicable accrued and unpaid Note Make Whole Premium in the order of priority
set forth in Section 6.1, and pay such amounts to the Holders of
Subordinated Notes entitled thereto pursuant to this Base Indenture and the
applicable Series Supplement, and (ii) if the amount of funds
allocated to the Subordinated Note Interest Account on each Payment Date with
respect to the related Monthly Collection Period referred to in the immediately
preceding clause (i)(A) is less than the accrued and
unpaid Subordinated Notes Interest Amount for the related Interest Period and
no Senior Notes are Outstanding, the amounts on deposit in the Cash Trap
Reserve Account (after giving effect to any payments made from the Cash Trap
Reserve Account pursuant to this Base Indenture), if any, to be paid to each
applicable Class of Subordinated Notes, up to the accrued and unpaid
Subordinated Notes Interest Amount, after giving effect to the application of
the amounts on deposit in the Subordinated Note Interest Account referred to in
the immediately preceding clause
(i)(A), in the order of priority set forth in Section 6.1,
and pay such amounts to the Holders of Subordinated Notes entitled thereto
pursuant to this Base Indenture and the applicable Series Supplement.


 


(f)                                    Subordinated Note Principal Payments
Account.  On each Determination Date, after giving
effect to the allocations set forth in the Priority of Payments, the
Transaction Manager shall instruct the Trustee in writing to withdraw on the
related Payment Date: (i) the funds allocated to the Subordinated Note
Principal Payments Account on such Payment Date to be paid, in the following
order: (A) to each applicable Class of Subordinated Notes from the
Collection Account up to the aggregate amount of the accrued and unpaid
Indemnification Amounts, Asset Disposition Prepayment Amounts, Insurance
Proceeds Amounts and Excess CAPEX Amounts, if any, owed to such Class of
Subordinated Notes in the order of priority set forth in Section 6.1,
and (B) to each applicable Class of Subordinated Notes from the
Collection Account up to the amounts distributed to such administrative account
pursuant to clause sixteenth  of the Priority of Payments owed to such Class of
Subordinated Notes, in the order of priority set forth in Section 6.1,
and pay such amounts to the Holders of Subordinated Notes entitled thereto pursuant to this Base
Indenture and the applicable Series Supplement, and (ii) if an Early
Amortization Event has occurred and is continuing on such Payment Date and no
amounts are due but unpaid on any Class of Senior Notes, the amounts on
deposit in the Cash Trap Reserve Account (after giving effect to any payments
made from the Cash Trap Reserve Account pursuant to this Base Indenture), if
any, to be paid to each applicable Class of Subordinated Notes up to the
Aggregate Outstanding Principal Amount of all Subordinated Notes after giving
effect to the application of the amounts on deposit in the Subordinated Notes
Principal Payment 


 


54

















 


Account referred to in the immediately preceding clause (i) above, in the order of priority set forth in Section 6.1,
and pay such amounts to the Holders of Subordinated Notes entitled thereto pursuant to
this Base Indenture and the applicable Series Supplement.


 


(g)                                 Senior Note Contingent Additional
Interest Account.  On each Determination Date, after giving
effect to the allocations set forth in the Priority of Payments, the
Transaction Manager shall instruct the Trustee in writing to withdraw on the
related Payment Date the funds allocated to the Senior Note Contingent
Additional Interest Account on such Payment Date, to be paid to each applicable
Class of Senior Notes from the Collection Account, up to the amount of the
accrued and unpaid Senior Note Contingent Additional Interest Amount owed to
such Class of Senior Notes in the order of priority set forth in Section 6.1,
and pay such amounts to the Holders of Class A Notes entitled thereto
pursuant to this Base Indenture and the applicable Series Supplement.


 


(h)                                 Subordinated
Notes Contingent Additional Interest Account.  On each Determination Date, after giving
effect to the allocations set forth in the Priority of Payments, the Transaction
Manager shall instruct the Trustee in writing to withdraw on the related
Payment Date the funds allocated to the Subordinated Note Contingent Additional
Interest Account on such Payment Date, to be paid to each applicable Class of
Subordinated Notes from the Collection Account up to the amount of the accrued
and unpaid Subordinated Note Contingent Additional Interest Amount owed to such
Class of Subordinated Notes in the order of priority set forth in Section 6.1,
and pay such amounts to the Holders of Subordinated Notes entitled thereto
pursuant to this Base Indenture and the applicable Series Supplement.


 


(i)                                     Amounts on
Deposit in the Senior Note Interest Reserve Account.


 


(i)                                     On each Payment
Date, any amount equal to the excess, if any, of (i) the amounts then on deposit in
the Senior Note Interest Reserve Account, over (ii) the Senior Note
Interest Reserve Account Required Amount, will be withdrawn from the Senior
Note Interest Reserve Account and deposited to the Collection Account for
application on such Payment Date in accordance with the Priority of Payments.


 


(ii)                                  On each Payment Date, the amounts on
deposit in the Senior Note Interest Reserve Account shall be applied to pay the following amounts
in the following order: (A) first, to pay to the applicable Holders
of Senior Notes the accrued and unpaid Senior Note Interest Amount on each Class of
Senior Notes Outstanding in the order of priority set forth in Section 6.1
to the extent that the amounts on deposit in the Senior Note Interest Account
are insufficient for such purpose and (B) second, to pay to the
applicable Holders of Class A-2 Notes the accrued and unpaid Class A-2
Senior Note Commitment Fee Amount and to the applicable Holders of Class A-3
Notes the accrued and unpaid Class A-3 Senior Note Commitment Fee Amount
for each Class of Class A-2 Notes Outstanding, and each Class of
Class A-3 Notes Outstanding, respectively, in the order of priority set
forth in Section 6.1 to the extent that the amounts on 


 


55

















 


deposit in the Class A-2
Notes Commitment Fees Account and the Class A-3 Notes Commitment Fees
Account, as applicable, are insufficient for such purpose.


 


(iii)                               If the Master Issuer (or the Transaction
Manager on the Master Issuer’s behalf) determines, with respect to any Series of
Senior Notes, that the amount to be paid to the applicable Holders of Senior
Notes entitled thereto in accordance with this Base Indenture on any Series Legal
Final Maturity Date related to such Series of Senior Notes is less than the
Aggregate Outstanding Principal Amount of such Series of Senior Notes, on the
Determination Date immediately preceding such Series Legal Final Maturity Date,
the Master Issuer shall instruct the Trustee thereof in writing, and the Trustee
shall, in accordance with such instruction on such Series Legal Final Maturity
Date, withdraw from the Senior Note Interest Reserve Account and pay to the
applicable Holders of Senior Notes entitled thereto in accordance with this
Base Indenture and the applicable Series Supplement and in the order of
priority set forth in Section 6.1, an amount equal to the lesser of
such insufficiency and the Available Senior Note Interest Reserve Account
Amount (after giving effect to any payments made from the Senior Note Interest
Reserve Account made on such date pursuant to Section 5.14(a)(ii), Section
5.14(b)(ii) and Section 5.14(c)(ii)) on such Series Legal Final
Maturity Date.


 


(iv)                              On any date on which no Senior Notes are
Outstanding, the Master Issuer shall instruct the Trustee in writing to
withdraw on such date any funds then on deposit in the Senior Note Interest
Reserve Account and to deposit all remaining funds into the Collection Account
for distribution in accordance with the Priority of Payments on the next
Payment Date.


 


(v)                                 On any Draw Date (whether or not
occurring on a Payment Date) relating to the Class A-2 Notes or the Class A-3
Notes, the Co-Issuers shall (i) recalculate the applicable Senior Note
Interest Reserve Account Required Amount, after giving effect to any funds
drawn (the “Drawn VFN Amounts”) pursuant to the applicable Variable
Funding Note Purchase Agreement on such date, and (ii) instruct the
Trustee to deposit to the Senior Note Interest Reserve Account such portion of
the Senior Note Interest Reserve Account Deficit Amount, if any, attributable
to such Drawn VFN Amounts; provided that any amounts deposited to the
Senior Note Interest Reserve Account on such date shall be taken from the Drawn
VFN Amounts (which the Co-Issuers shall remit to the Trustee on such applicable
Draw Date).


 


(j)                                     Amounts on Deposit in the Cash
Trap Reserve Account.


 


(i)                                     On the
Determination Date preceding any Payment Date on which it is anticipated that a
Cash Trapping Period shall have ended (but not as a result of the occurrence
and continuance of an Early Amortization Event or Event of Default), the
Transaction Manager shall instruct the Trustee in writing to withdraw on such
Payment Date the amounts then on deposit in the Cash Trap Reserve Account
relating to such Cash Trapping Period and deposit such funds 


 


56

















 


into
the Collection Account for distribution on such Payment Date in accordance with the Priority
of Payments; provided that if on such Payment Date such Cash Trapping
Period shall have ended as a result of the occurrence and continuance of an
Event of Default or Early Amortization Event, then the Transaction Manager
shall instruct the Trustee to ignore such prior instruction.


 


(ii)                                  On each Payment
Date, the amounts on deposit in the Cash Trap Reserve Account shall be applied
to pay the following amounts in the following order: (i) first, to pay to the applicable
Holders of Class A Notes the accrued and unpaid Senior Note Interest
Amount on each Class of Senior Notes Outstanding in the order of priority
set forth in Section 6.1 to the extent that the amounts on deposit
in the Senior Note Interest Account and the Senior Note Interest Reserve
Account are insufficient for such purpose, (ii) second, to pay to the applicable Holders of Class A-2
Notes the accrued and unpaid Class A-2 Senior Note Commitment Fee Amount
and to the applicable Holders of Class A-3 Notes the accrued and unpaid Class A-3
Senior Note Commitment Fee Amount for each Class A-2 Note Outstanding and
each Class A-3 Note Outstanding in the order of priority set forth in Section 6.1
to the extent that the amounts on deposit in (x) the Class A-2 Notes
Commitment Fees Account and the Class A-3 Notes Commitment Fees Account,
as applicable, and (y) the Senior Note Interest Reserve Account are
insufficient for such purpose, (iii) third, if an Early Amortization Event has occurred and is
continuing, to pay to the applicable Holders of Class A Notes the
Aggregate Outstanding Principal Amount of all Senior Notes Outstanding in the
order of priority set forth in Section 6.1 after giving effect to
the application of certain amounts in the Senior Note Principal Payments
Account, in accordance with this Base Indenture, (iv) fourth, provided no Senior Notes are Outstanding, to pay to the
applicable Holders of Subordinated Notes the accrued and unpaid Subordinated
Notes Interest Amount on each Class of Subordinated Notes Outstanding in
the order of priority set forth in Section 6.1 to the extent that
the amounts on deposit in the Subordinated Note Interest Account are
insufficient for such purpose, and (v) fifth, if an Early Amortization Event has occurred and is
continuing, and no Senior Notes remain Outstanding, to pay to the applicable
Holders of Subordinated Notes the Aggregate Outstanding Principal Amount of all
Subordinated Notes Outstanding in the order of priority set forth in Section 6.1
after giving effect to the application of certain amounts in the Subordinated
Note Principal Payments Account, in accordance with this Base Indenture.


 


(iii)                               On the Determination Date related to the
first Payment Date following the commencement of an Early Amortization Period,
the Transaction Manager shall instruct the Trustee in writing to withdraw on
such Payment Date any funds then on deposit in the Cash Trap Reserve Account
for payment to the Holders of each Class of Notes Outstanding in
accordance with this Section 5.14 and in the order of priority set
forth in Section 6.1.


 


(iv)                              On the Determination Date related to the Series Adjusted
Repayment Date, the Master Issuer (or the Transaction Manager on behalf of the 


 


57

















 


Master Issuer) shall
instruct the Trustee in writing to withdraw on such date any funds then on
deposit in the Cash Trap Reserve Account for payment to the Holders of each Class of
Notes Outstanding in accordance with this Section 5.14 and in the
order of priority set forth in Section 6.1.


 


(v)                                 On any Payment Date on which a Tax
Payment Deficiency exists, the Master Issuer (or the Transaction Manager on
behalf of the Master Issuer) may, in its sole discretion, instruct the Trustee
in writing to withdraw from first, the Tax Reserve Account the amounts
necessary to discharge such Tax Payment Deficiency, second to the extent
of any remaining Tax Payment Deficiency, the Surplus Account the amounts
necessary to discharge such Tax Payment Deficiency and third, to the
extent of any remaining Tax Payment Deficiency, the Cash Trap Reserve Account
the amounts necessary to discharge such Tax Payment Deficiency.


 


(k)                                  Amounts on Deposit in the Contributions
Reserve Account.


 


(i)                                     With respect to any Payment Date, 100% of
any funds available in the Collection Account after payment of the amounts
described in clauses first through
twenty-first  of the
Priority of Payments shall be deposited to the Contributions Reserve Account, up
to an amount equal to the aggregate amount of Contributions (with respect to
each Payment Date, the “Aggregate
Contributions Amount”) deposited to the Collection Account during
the related Monthly Collection Period; provided  that
if the remaining funds available in the Collection Account after payment of the
amounts described in clauses first
through twenty-first of the Priority of Payments on such Payment
Date is less than the related Aggregate Contributions Amount for the related
Monthly Collection Period, then an aggregate amount equal to the difference
between such Aggregate Contributions Amount and such remaining available amount
on deposit in the Collection Account (such difference, the “Contributions Amount Shortfall”)
shall continue to be required to be deposited to the Contributions Reserve
Account on subsequent Payment Dates pursuant to clause twenty-second of the Priority of Payments until the applicable Contributions Amount
Shortfall has been reduced to zero.


 


(ii)                                  Except as described in Section 5.14(k)(iii),
amounts deposited to the Contributions Reserve Account shall be held in such account for three
Monthly Collection Periods, after which the released amounts shall be deposited to the Surplus Account on
the next Payment Date.


 


(iii)                               On any Payment Date following (i) the
commencement of any Cash Trapping Period, the amounts then on deposit in the
Contributions Reserve Account (including any Investment Income) shall be
withdrawn and deposited into the Cash Trap Reserve Account, or (ii) the
occurrence of any Early Amortization Event or Event of Default, the amounts
then on deposit in the Contributions Reserve Account (including any Investment
Income) shall be 


 


58

















 


withdrawn and deposited
into the Collection Account for distribution in accordance with the Priority of
Payments.


 


(l)                                     Amounts on Deposit in the Termination
Amount Reserve Account.


 


(i)                                     With respect to any Payment Date, 100% of
any funds available in the Collection Account after payment of the amounts
described in clauses first through
twelfth  of the
Priority of Payments, shall be deposited to the Termination Amount Reserve
Account, up to an amount equal to the aggregate amount of Termination Amounts
(with respect to each Payment Date, the “Aggregate Termination Amount”) deposited to the Collection
Account during the related Monthly Collection Period; provided  that if the remaining funds available in
the Collection Account after payment of the amounts described in clauses first through twelfth  of the Priority of Payments on such
Payment Date is less than the related Aggregate Termination Amount for the
related Monthly Collection Period, then an aggregate amount equal to the
difference between such Aggregate Termination Amount and such remaining
available amount on deposit in the Collection Account (such difference, the “Termination Amount Shortfall”)
shall continue to be required to be deposited to the Termination Amount Reserve
Account on subsequent Payment Dates (in addition to any other Aggregate
Termination Amount due on such subsequent Payment Dates) pursuant to clause thirteenth  of the Priority of Payments until the
applicable Termination Amount Shortfall has been reduced to zero.


 


(ii)                                  Except as described in Section 5.14(l)(iii),
amounts deposited to the Termination Amount Reserve Account shall be held in such account for three
Monthly Collection Periods, after which time the amounts will be released and
deposited to the Surplus Account on the next Payment Date.


 


(iii)                               On any Payment Date following (i) the
commencement of any Cash Trapping Period, the amounts then on deposit in the
Termination Amount Reserve Account (including any Investment Income) shall be
withdrawn and deposited into the Cash Trap Reserve Account, or (ii) the
occurrence of any Early Amortization Event or Event of Default, the amounts
then on deposit in the Termination Amount Reserve Account (including any
Investment Income) shall be withdrawn and deposited into the Collection Account
for distribution in accordance with the Priority of Payments.


 


(m)                               Amounts on Deposit in the Hedge Payment
Account.


 


(i)                                     Deposits to and withdrawals from the
Hedge Payment Account shall be made in accordance with the applicable Series Supplement
providing for the use of such account.


 


(n)                                 Amounts on Deposit in the Enhancement
Payment Account.


 


59

















 


(i)                                     Deposits to and withdrawals from the
Enhancement Payment Account shall be made in accordance with the applicable Series Supplement
providing for the use of such account.


 


Section 5.15                                Determination of Monthly Interest.


 


Monthly payments of interest and fees on each Series of
Notes shall be determined, allocated and distributed in accordance with the
procedures set forth in the applicable Series Supplement.


 


Section 5.16                                Determination of Monthly Principal.


 


Monthly payments of principal, if any, of each Series of
Notes shall be determined, allocated and distributed in accordance with the
procedures set forth in the applicable Series Supplement.


 


Section 5.17                                Prepayment of Principal.


 


Mandatory prepayments of principal, if any, of each Series of
Notes shall be determined, allocated and distributed in accordance with the
procedures set forth in the applicable Series Supplement, if not otherwise
described herein.


 


ARTICLE VI


 


DISTRIBUTIONS


 


Section 6.1                                      Distributions in General.


 


(a)                                  Unless otherwise specified in the
applicable Series Supplement, on each Payment Date, the Paying Agent shall
pay to the Noteholders of each applicable Series of Notes of record on the
preceding Record Date or to the applicable Variable Funding Administrative
Agent the amounts payable thereto (i) by wire transfer in immediately available
funds released by the Paying Agent from the Collection Account or the
applicable Collection Account Administrative Account no later than 2:30 p.m.
(New York City time) if a Noteholder or applicable Variable Funding
Administrative Agent has provided to the Paying Agent and the Trustee wiring
instructions at least five (5) Business Days prior to the applicable
Payment Date or (ii) by check mailed first-class postage prepaid to such
Noteholder or applicable Variable Funding Administrative Agent at the address
for such Noteholder appearing in the Note Register or at the address for such
Variable Funding Administrative Agent on file with the Paying Agent and the
Trustee, in each case, if such Noteholder or applicable Variable Funding
Administrative Agent has not provided wire instructions pursuant to clause (i) above;
provided, however, that the final principal payment due on a
Note shall only be paid upon due presentment and surrender of such Note for
cancellation in accordance with the provisions of the Note at the
applicable Corporate Trust Office.


 


(b)                                 All Series of
Notes issued under this Base Indenture that are part of a Class with an
alphanumerical designation that contains the letter “A” (such as the Series


 


60














 


2008-1 Class A-1 Notes, the Series 2008-1
Class A-2 Notes and the Series 2008-1 Class A-3 Notes) will be
classified as “Senior Notes.”
Any Notes issued under this Base Indenture that are part of a Class with
an alphanumerical designation that does not contain the letter “A” (such as the
Series 2008-1 Class B-1 Notes) will be classified as “Subordinated Notes.” On each
Payment Date, payments of interest, principal (when due) and certain other
amounts in respect of all Classes of Notes will be made from amounts allocated
in accordance with the Priority of Payments among each Class of Notes.
Classes of the Notes having the same alphabetical designation will be pari passu  with each other with respect to all
distributions of proceeds under this Base Indenture, will be paid in
alphabetical order (e.g., each Class of
the Series 2008-1 Class A Notes will be pari passu with each other with respect to such proceeds and
will have priority over any Class of Subordinated Notes (including the Series 2008-1
Class B-1 Notes) with respect to such proceeds), and such proceeds will be
distributed in respect of each Class of Notes bearing the same
alphanumerical designation on a pro
rata  basis according
to the amounts owed on such Classes of Notes, except that with respect to any
prepayments of principal of the Notes under the Indenture, if any, in
connection with any Indemnification Amounts, any Asset Disposition Prepayment
Amounts, any Insurance Proceeds Amounts, and any Excess CAPEX Amounts, such
prepayments of principal will be paid first,
to the Class A-1 Notes of all Series of Notes Outstanding until paid
in full, second, ratably
according to the Aggregate Outstanding Principal Amount of the applicable Class of
Notes, to the Class A-2 Notes and Class A-3 Notes of all Series of
Notes Outstanding and third,
to each class of Subordinated Notes of all Series of Notes Outstanding
sequentially in alphabetical order.


 


(c)           Unless otherwise specified in the applicable Series Supplement,
the Trustee shall distribute all amounts owed to the Noteholders of any Class of
Notes pursuant to the instructions of the Co-Issuers whether set forth in a
Monthly Manager’s Certificate, a Company Order or otherwise.


 


ARTICLE VII



REPRESENTATIONS AND WARRANTIES


 


The Co-Issuers hereby represent and warrant, for the
benefit of the Trustee and the Noteholders, as follows as of each Series Closing
Date:


 


Section 7.1             Existence
and Power.


 


Each Securitization Entity (a) is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, (b) is duly qualified to do business and in good standing
under the laws of each jurisdiction where the character of its property, the
nature of its business or the performance of its obligations under the Related
Documents make such qualification necessary, except to the extent that the
failure to so qualify is not reasonably likely to result in a Material Adverse
Effect, and (c) has all limited liability company, corporate or similar
powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and for purposes of the
transactions contemplated by the Indenture and the 


 


61

















 


other Related Documents, except to the extent the
failure to obtain such licenses, authorizations, consents and approvals is not
reasonably likely to result in a Material Adverse Effect.


 


Section 7.2             Company
and Governmental Authorization.


 


The issue and sale of the Notes and the execution,
delivery and performance by each Co-Issuer of this Base Indenture and any Series Supplement
and by each Co-Issuer and each other Securitization Entity of the other Related
Documents to which it is a party (a) is within such Securitization Entity’s
limited liability company, corporate or similar powers and has been duly
authorized by all necessary limited liability company, corporate or other
action, (b) requires no action by or in respect of, or filing with, any
Governmental Authority which has not been obtained and (c) does not
contravene, or constitute a default under, any Requirements of Law with respect
to such Securitization Entity or any Contractual Obligation with respect to
such Securitization Entity or result in the creation or imposition of any Lien
on any property of any Securitization Entity (other
than Liens created by this Base Indenture or the other Related Documents),
except (i) in the case of clause (b) above, and solely in connection
with the Contribution Agreements, for any action or filing the failure of which
to obtain could not reasonably be expected to have a Material Adverse Effect,
and (ii) in the case of clause (c) above, and solely in connection
with the Contribution Agreements, for any contravention or default which could
not reasonably be expected to have a Material Adverse Effects.  This Base Indenture and each of the other Related
Documents to which each Securitization Entity is a party has been executed and
delivered by a duly Authorized Officer of such Securitization Entity.


 


Section 7.3             No
Consent.


 


Except as set forth on Schedule 7.3, no
consent, action by or in respect of, approval or other authorization of, or
registration, declaration or filing with, any Governmental Authority or other
Person is required for the issue and sale of the Notes, the valid execution and
delivery by each Co-Issuer of this Base Indenture and any Series Supplement
and by each Co-Issuer and each other Securitization Entity of any Related
Document to which it is a party or for the performance of any of the Securitization
Entities’ obligations hereunder or thereunder other than such consents,
approvals, authorizations, registrations, declarations or filings (a) as
shall have been obtained or made by such Securitization Entity prior to the
Closing Date or as are permitted to be obtained subsequent to the Closing Date
in accordance with Section 7.13, or (b) relating to the
performance of any Collateral Bulk Gases Business Documents the failure of
which to obtain is not reasonably likely to have a Material Adverse Effect.


 


Section 7.4             Binding
Effect.


 


This Base Indenture and each other Related Document to
which a Securitization Entity is a party has been duly and validly authorized,
executed and delivered by such Securitization Entity and, assuming due
authorization, execution and delivery by the other parties thereto, is a legal,
valid and binding obligation of each such 


 


62

















 


Securitization Entity enforceable against such
Securitization Entity in accordance with its terms (except as may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws affecting creditors’ rights generally or by general
equitable principles, whether considered in a proceeding at law or in equity and
by an implied covenant of good faith and fair dealing).


 


Section 7.5             Litigation.


 


There is no action, suit, proceeding or investigation
pending against or, to the knowledge of any Co-Issuer, threatened against or
affecting any Securitization Entity or of which any property or assets of such
Securitization Entity is the subject before any court or arbitrator or any
Governmental Authority that would, individually or in the aggregate, affect the
validity or enforceability of this Base Indenture or any Series Supplement,
materially adversely affect the performance by the Securitization Entities of
their obligations hereunder or thereunder or which is reasonably likely to have
a Material Adverse Effect.


 


Section 7.6             No
ERISA Plan.


 


No Securitization Entity or any corporation or any
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, except as provided on Schedule 7.6, 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 Securitization
Entity which is a member of a Controlled Group which includes a Securitization
Entity has any contingent liability with respect to any post-retirement welfare
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.


 


Section 7.7             Tax
Filings and Expenses.


 


Each Securitization Entity has filed, or caused to be
filed, all federal and state, and all other Tax returns which, to the knowledge
of any Co-Issuer, are required to be filed by, or with respect to the income,
properties or operations of, such Securitization Entity (whether information
returns or not), and has paid, or caused to be paid, all Taxes due, if any,
pursuant to said returns or pursuant to any assessment received by any
Securitization Entity or otherwise, except such Taxes, if any, as are being
contested in good faith and by appropriate proceedings and for which adequate
reserves have been set aside in accordance with GAAP, or where the failure to
pay such Taxes is not reasonably likely to have a Material Adverse Effect.  As of the Closing Date, except as set forth
on Schedule 7.7, no Co-Issuer is aware of any proposed Tax
assessments against NuCO2 or any direct or indirect subsidiary thereof which either individually or in the
aggregate exceed $1,000.  Except as would
not reasonably be expected to have a Material Adverse Effect, no tax deficiency
has been determined adversely to any Securitization Entity, nor does any Securitization
Entity have any knowledge of any tax deficiencies.  Each 


 


63

















 


Securitization Entity has paid all fees and expenses
required to be paid by it in connection with the conduct of its business, the maintenance
of its existence and its qualification and authorization to do business in each
state in which it is required to so qualify, except to the extent that the
failure to pay such fees and expenses is not reasonably likely to result in a
Material Adverse Effect.


 


Section 7.8             [Reserved].


 


Section 7.9             Investment
Company Act.


 


No Securitization Entity is, and after giving effect
to the offer and sale of the Notes and the application of the proceeds
therefrom will be,  an “investment
company” or a company “controlled” by an “investment company” within the
meaning of, or will be required to register as an “investment company” under,
the Investment Company Act and the rules and regulations of the Securities
and Exchange Commission thereunder.


 


Section 7.10           Regulations
T, U and X.


 


The proceeds of the Notes will not be used to purchase
or carry any “margin stock” (as defined or used in the regulations of the Board
of Governors of the Federal Reserve System, including Regulations T, U and X
thereof) in such a way that could cause the transactions contemplated by the
Related Documents to fail to comply with the regulations of the Board of
Governors of the Federal Reserve System, including Regulations T, U and X
thereof.  No Securitization Entity owns
or is engaged in the business of extending credit for the purpose of purchasing
or carrying any margin stock.


 


Section 7.11           Solvency.


 


Both before and after giving effect to the
transactions contemplated by the Indenture and the other Related Documents,
each Securitization Entity is solvent within the meaning of the Bankruptcy Code
and any applicable state law (giving effect to each Co-Issuer’s right to
contribution from each other Co-Issuer with respect to each Co-Issuer’s several
liability for the Obligations), and no Securitization Entity is the subject of
any voluntary or involuntary case or proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy or insolvency law, and no Event of Bankruptcy has occurred with
respect to any Securitization Entity.


 


Section 7.12           Ownership
of Equity Interests; Subsidiaries.


 


(a)           All
of the issued and outstanding common limited liability company membership
interests of the Employee Company are owned by NuCO2, and all of the issued and outstanding preferred
limited liability company membership interests of the Employee Company are
owned by the Master Issuer, all of which limited liability company membership interests have been
validly issued and are owned of record by NuCO2 or the Master
Issuer, as the case may be, free and clear of all Liens other than Permitted Liens.


 


64

















 


(b)           All
of the issued and outstanding limited liability company membership interests of
the Master Issuer are owned by NuCO2,
all of which limited liability company membership interests have been validly
issued and are owned of record by the NuCO2,
free and clear of all Liens other than Permitted Liens.


 


(c)           All
of the issued and outstanding limited liability company membership interests of
the Contract Holder, the Equipment Holder and the IP Holder are owned by the
Master Issuer, all of which limited liability company membership interests have
been validly issued and are owned of record by the Master Issuer, free and
clear of all Liens other than Permitted Liens.


 


(d)           The
Master Issuer has no Subsidiaries and owns no Equity Interests in any other
Person, other than the Employee Company, the Contract Holder, the Equipment
Holder, the IP Holder and any Additional Securitization Entity.  The Contract Holder, the Equipment Holder and
the IP Holder have no Subsidiaries and own no Equity Interests in any other
Person other than any Additional Securitization Entity.


 


Section 7.13           Security
Interests.


 


(a)           Each
Co-Issuer owns and has good title to its portion of the Collateral, free and
clear of all Liens other than Permitted Liens. 
The Co-Issuers’ rights under the Collateral Documents constitute
accounts or general intangibles under the applicable UCC.  This Base Indenture creates a valid and
continuing Lien on the Collateral in favor of the Trustee on behalf of and for
the benefit of the Secured Parties, which Lien on the Collateral has been
perfected (except as described on Schedule 7.13(a) and subject
to the last sentence of this Section 7.13(a)) and is prior to all
other Liens (other than Permitted Liens), and is enforceable as such as against
creditors of and purchasers from each Co-Issuer in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors’ rights generally or by general equitable principles,
whether considered in a proceeding at law or in equity and by an implied
covenant of good faith and fair dealing. 
The Co-Issuers have received all consents and approvals required by the
terms of the Collateral to the pledge of the Collateral to the Trustee
hereunder except to the extent provided under Section 3.1
hereof.  All action necessary to perfect
such first-priority security interest (including the filing of UCC-1 financing
statements and filings with the PTO and the United States Copyright Office) has
been duly taken or, in the case of Intellectual Property, will be duly taken
consistent with the obligations set forth in Section 8.25(c).


 


(b)           Other
than the security interest granted to the Trustee hereunder, pursuant to the
other Related Documents or any other Permitted Lien, none of the Co-Issuers has
pledged, assigned, sold or granted a security interest in the Collateral.  No security agreement, financing statement,
equivalent security or lien instrument or continuation statement authorized by
any Co-Issuer and listing such Co-Issuer as debtor covering all or any part of
the Collateral is on file or of record in any jurisdiction in the United
States, except in respect of Permitted Liens or such as may have been filed,
recorded or made by such Co-Issuer in favor of the Trustee on behalf of the
Secured 


 


65

















 


Parties in connection with this Base Indenture, and no Co-Issuer has
authorized any such filing.


 


(c)           All
authorizations in this Base Indenture for the Trustee to endorse checks,
instruments and securities and to execute financing statements, continuation
statements, security agreements, account control agreements and other
instruments with respect to the Collateral and to take such other actions with
respect to the Collateral authorized by this Base Indenture are powers coupled
with an interest and are irrevocable.


 


Section 7.14           Related
Documents.


 


The Related Documents are in full force and
effect.  There are no outstanding
Defaults or Events of Default, and no events have occurred which, with the
giving of notice, the passage of time or both, would constitute a Default or
Event of Default.


 


Section 7.15           Non-Existence
of Other Agreements.


 


Other than as permitted by Section 8.22, (a) no
Securitization Entity is a party to any contract or agreement of any kind or
nature, and (b) no Securitization Entity is subject to any material
obligations or liabilities of any kind or nature in favor of any third party,
including, without limitation, Contingent Obligations.  No Securitization Entity has engaged in any
activities since its formation (other than those incidental to its formation,
the authorization and the issue of Series of Notes, the execution of the
Related Documents to which such Securitization Entity is a party and the
performance of the activities and operation of its business referred to in or
contemplated by such agreements).


 


Section 7.16           Compliance
with Contractual Obligations and Laws.


 


No Securitization Entity is in violation of (a) its
Charter Documents, (b) any Requirement of Law with respect to such
Securitization Entity or (c) any Contractual Obligation with respect to
Securitization Entity except, solely with respect to clauses (b) and
(c), to the extent such violation could not reasonably be expected to
result in a Material Adverse Effect.


 


Section 7.17           Other
Representations.


 


All representations and warranties of each
Securitization Entity made in each Related Document to which it is a party are
true and correct in all material respects and are repeated herein as though
fully set forth herein.


 


66

















 


Section 7.18           No
Employees.


 


Notwithstanding any other provision of the Indenture
or any Charter Documents of any Securitization Entity to the contrary, no
Securitization Entity has any employees.


 


Section 7.19           Insurance.


 


The Securitization Entities maintain or cause
to be maintained on the Closing Date the insurance coverages described on Schedule 7.19
hereto, in such amounts and covering such risks as is adequate for the conduct
of their respective businesses and the value of their respective properties and
as is customary for companies engaged in similar businesses in similar
industries.  All policies of insurance of
the Securitization Entities are in full force and effect and the Securitization
Entities are in compliance with the terms of such policies in all material
respects.  None of the Securitization
Entities has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not reasonably be expected to have a Material
Adverse Effect.  All such insurance is
primary coverage, all premiums therefor due on or before the date hereof have
been paid in full, and the terms and conditions thereof are no less favorable
to the Securitization Entities than the terms and conditions of insurance
maintained by their Affiliates that are not Securitization Entities.


 


Section 7.20           Environmental
Matters; Real Property.


 


(a)           None
of the Securitization Entities are subject to any material liabilities or
obligations pursuant to any Environmental Law.


 


(b)           None
of the Securitization Entities (a) owns any real property, or (b) leases
or operates any real property, other than any real property underlying the Real
Estate Leases and the lease of the headquarters of the Securitization Entities
and NuCO2.


 


Section 7.21           Intellectual
Property.


 


(a)           The IP Holder owns
or otherwise has the right to use all Intellectual Property necessary to
operate the Bulk Gases Business, free and clear of all Liens, set-offs,
defenses and counterclaims of whatsoever kind or nature, other than Permitted
Liens.  The Co-Issuers have not made and
will not hereafter make any material assignment, pledge, mortgage,
hypothecation or transfer of any of the Securitization IP, other than Permitted
Liens.


 


(b)           All
Existing Securitization IP owned by any Co-Issuer and necessary for the
operation of the Bulk Gases Business is subsisting and valid.  There is no claim, action or proceeding
pending, or to the knowledge of any Co-Issuer, threatened, that seeks to limit,
cancel or question the validity of any Existing Securitization IP owned by any
Co-Issuer or any Co-Issuer’s rights or interests therein, or its use thereof
and, to 


 


67

















 


the knowledge of any Co-Issuer, there is no basis for any such claim,
action or proceeding, that individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.


 


(c)           There is no
agreement to which any Co-Issuer is a party or otherwise bound, materially
restricting the use, exploitation or enforcement of any Existing Securitization
IP owned by a Co-Issuer, or that would otherwise in any material respect impair
or interfere with the rights granted thereunder.


 


(d)           To the knowledge of
any Co-Issuer, the Existing Securitization IP and the use thereof in the
operation of or in connection with the Bulk Gases Business does not infringe,
misappropriate, dilute or violate the rights of any Person and does not violate
applicable requirements of law, except for such matters that, individually, or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.


 


(e)           To the knowledge of
any Co-Issuer, no Person is infringing, diluting, misappropriating or otherwise
violating the Existing Securitization IP, except for such matters that,
individually, or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.


 


(f)            Each Co-Issuer has
taken reasonable steps in accordance with normal industry practice to maintain
the confidentiality of the trade secrets and other confidential Intellectual
Property used in connection with the Bulk Gases Business.  To the knowledge of any Co-Issuer, except for
such matters that, individually, or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, there has been no misappropriation
of any trade secrets or other material confidential Intellectual Property used
in connection with the Bulk Gases Business by any Person; no employee,
independent contractor or agent of any Co-Issuer has misappropriated any trade
secrets of any other Person in the course of performance as an employee,
independent contractor or agent of the Bulk Gases Business; and no employee,
independent contractor or agent of any Co-Issuer is in default or breach of any
term of any employment agreement, nondisclosure agreement, assignment of
invention agreement or similar agreement or contract relating in any way to the
protection, ownership, development, use or transfer of Intellectual Property,
including trade secrets, of the Bulk Gases Business.


 


(g)           No Co-Issuer is in
default or in breach of any term of any Third Party IP License Agreement, and
no counterparty thereto has exercised any right of termination or asserted the
existence of any default thereunder by any Co-Issuer except for such matters
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.


 


(h)           Each Third Party IP
License Agreement is in full force and effect and is the legal, valid and
binding obligation of the Co-Issuer that is a party thereto except for such
matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.


 


68

















 


ARTICLE VIII


 


COVENANTS


 


Section 8.1             Payment
of Notes.


 


(a)           Each
Co-Issuer shall pay or cause to be paid the principal of, interest on (subject
to Section 2.15(e)), and, if applicable, commitment fees with
respect to, the Notes when due, together with any prepayment amounts, if any,
pursuant to the provisions of this Base Indenture and any applicable Series Supplement.  Principal, interest and commitment fees shall
be considered paid on the date due if the Paying Agent holds on that date money
designated for and sufficient to pay all principal, interest and commitment
fees then due.  Except as otherwise
provided pursuant to a Variable Funding Note Purchase Agreement or any other
Related Document, amounts properly withheld under the Code or any applicable
state, local or foreign law by any Person from a payment to any Noteholder of
interest or principal shall be considered as having been paid by the Co-Issuers
to such Noteholder for all purposes of the Indenture and the Notes.


 


(b)           By
acceptance of its Notes, each Noteholder agrees that the failure to provide the
Paying Agent with appropriate tax certifications (which includes (i) an
Internal Revenue Service Form W-9 for United States persons (as defined
under Section 7701(a)(30) of the Code) or any applicable successor form or
(ii) an applicable Internal Revenue Service Form W-8, for Persons
other than United States persons, or applicable successor form) may result in amounts
being withheld from payments to such Noteholder under this Base Indenture and
any Series Supplement and that amounts withheld pursuant to applicable
laws shall be considered as having been paid by the Co-Issuers as provided in clause
(a) above.


 


Section 8.2             Maintenance
of Office or Agency.


 


(a)           The
Co-Issuers shall maintain an office or agency (which may be an office of the
Trustee, the Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or exchange, where notices and demands to or upon the
Co-Issuers in respect of the Notes and the Indenture may be served, and where,
at any time when the Co-Issuers are obligated to make a payment of principal on
the Notes, the Notes may be surrendered for payment.  The Co-Issuers shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency.  If at any time the
Co-Issuers shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office.


 


(b)           The
Co-Issuers may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations.  The Co-Issuers shall give prompt written
notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.


 


69

















 


(c)           The
Co-Issuers hereby designate the applicable Corporate Trust Office as one such
office or agency of the Co-Issuers.


 


Section 8.3             Payment and Performance of
Obligations.  The Co-Issuers shall,
and the Master Issuer shall cause the other Securitization Entities to, pay and
discharge and fully perform, at or before maturity, all of their respective
material obligations and liabilities, including, without limitation, Tax
liabilities and other governmental claims levied or imposed upon such
Securitization Entity or upon the income, properties or operations of any
Securitization Entity, judgments, settlement agreements and all obligations of
each Securitization Entity under the Collateral Documents, except where the
same may be contested in good faith by appropriate proceedings (and without
derogation from the material obligations of the Co-Issuers hereunder regarding
the protection of the Collateral from Liens (other than Permitted Liens)), and
shall maintain, in accordance with GAAP, reserves as appropriate for the
accrual of any of the same.


 


Section 8.4             Maintenance of Existence.  Each Co-Issuer shall, and the Master Issuer
shall cause each other Securitization Entity to, maintain its existence as a
limited liability company or corporation, if applicable, validly existing, and
in good standing under the laws of its state of organization and duly qualified
as a limited liability company or corporation, if applicable, licensed under
the laws of each state in which the failure to so qualify would be reasonably
likely to result in a Material Adverse Effect. 
Each Co-Issuer shall, and the Master Issuer shall cause each other
Securitization Entity (other than any Additional Securitization Entity that is
a corporation) to, be treated as a disregarded entity within the meaning of
United States Treasury regulation section 301.7701-2(c)(2), and no
Co-Issuer shall, and the Master Issuer shall not permit any other
Securitization Entity (other than any Additional Securitization Entity that is
a corporation) to, be classified as a corporation or as an association taxable
as a corporation or a publicly traded partnership taxable as a corporation for
United States federal tax purposes.  Each
Co-Issuer shall, and the Master Issuer shall cause each other Securitization
Entity to, comply with its Charter Documents.


 


Section 8.5             Compliance with Laws.  Each Co-Issuer shall, and the Master Issuer
shall cause each other Securitization Entity to, comply in all respects with all
Requirements of Law with respect to such Co-Issuer or such other Securitization
Entity except where such noncompliance would not be reasonably likely to result
in a Material Adverse Effect; provided, however, such
noncompliance will not result in a Lien (other than a Permitted Lien) on any of
the Collateral or any criminal liability on the part of any Securitization
Entity, the Master Manager, the Transaction Manager or the Trustee.


 


Section 8.6             Inspection of Property; Books
and Records.  Each Co-Issuer shall,
and the Master Issuer shall cause each other Securitization Entity to, keep
proper books of record and account in which full, true and correct entries
shall be made of all dealings and transactions, business and activities in
accordance with GAAP.  Each Co-Issuer
shall, and the Master Issuer shall cause each other Securitization Entity to,


 


70














 


permit each of the
Trustee and the Administrative Agent or any Person appointed by either of them
to act as its agent to visit and inspect any of its properties, to examine and
make abstracts from any of its books and records and to discuss its affairs, finances
and accounts with its officers, directors, managers, employees and Independent
Accountants (an “Audit”) at the sole cost and expense of the Co-Issuers,
at such reasonable times upon such reasonable notice as may reasonably be
requested; provided, that the Trustee, the Administrative Agent or such
Person appointed by either of them to act as its agent shall only be entitled
to up to two Audits per calendar year actually completed;  provided, further, that during
the continuance of an Early Amortization Event or an Event of Default each of
the Trustee and the Administrative Agent or any Person appointed by either of
them to act as its agent may visit and conduct such number of Audits as it
deems necessary at any time and all such visits and Audits shall be at the
Co-Issuers’ expense.


 


Section 8.7                                      Actions under the Collateral Documents
and Related Documents.


 


(a)                                  Except as otherwise provided in Section 8.7(d),
no Co-Issuer shall, and the Master Issuer shall not permit any Securitization
Entity to, take any action which would permit any Securitization Entity or any
other Person party to a Collateral Transaction Document to have the right to
refuse to perform any of its respective obligations under any of the Collateral
Transaction Documents or that would result in the amendment, waiver,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any Collateral Transaction Document.


 


(b)                                 Except as otherwise provided in Section 3.2(a) or
8.7(d), no Co-Issuer shall, and the Master Issuer shall not permit any
Securitization Entity to, take any action which would permit any other Person
party to a Collateral Bulk Gases Business Documents to have the right to refuse
to perform any of its respective obligations under such Collateral Bulk Gases
Business Documents or that would result in the amendment, waiver,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, such Collateral Bulk Gases Business Documents if
such action when taken on behalf of any Securitization Entity by the
Transaction Manager would constitute a breach by the Transaction Manager of the
Transaction Management Agreement.


 


(c)                                  Except as otherwise provided in Section 3.2(a),
each Co-Issuer agrees that it shall not, and the Master Issuer shall cause each
Securitization Entity not to, without the prior written consent of the Control
Party, exercise any right, remedy, power or privilege available to it with
respect to any obligor under a Collateral Document or under any instrument or
agreement included in the Collateral, take any action to compel or secure
performance or observance by any such obligor of its obligations to such
Co-Issuer or such other Securitization Entity or give any consent, request,
notice, direction or approval with respect to any such obligor, if such action
when taken on behalf of any Securitization Entity by the Transaction Manager
would constitute a breach by the Transaction Manager of the Transaction
Management Agreement.


 


(d)                                 Each Co-Issuer agrees that it shall not,
and the Master Issuer shall cause each Securitization Entity not to, without
the prior written consent of the Control 


 


71

















 


Party, amend, modify, waive, supplement, terminate or surrender, or
agree to any amendment, modification, supplement, termination, waiver or
surrender of, the terms of any of the Related Documents excluding the
Indenture; provided, however, that the Securitization Entities
may agree to any amendment, modification, supplement or waiver of any such term
of any Related Document excluding the Indenture without any such consent:


 


(i)                                     to add to the covenants of any
Securitization Entity for the benefit of the Secured Parties; or to add to the
covenants of NuCO2 or any Affiliate thereof for the benefit of any Securitization
Entity; or


 


(ii)                                  to make such other provisions in regard
to matters or questions arising under the Related Documents as the parties
thereto may deem necessary or desirable, which are not inconsistent with the
provisions thereof and which shall not materially and adversely affect the
interests of any Noteholder, any Note Owner or any other Secured Party; provided
that an Officer’s Certificate (in form and substance reasonably satisfactory to
the Trustee) shall be delivered to the Trustee and the Rating Agencies to such
effect.


 


(e)                                  Upon the occurrence of a Master Manager
Default under the Master Management Agreement, (i) each Co-Issuer shall
not, and the Master Issuer shall cause each other Securitization Entity not to,
without the prior written consent of the Control Party, terminate the Master
Manager and appoint any successor Master Manager in accordance with the Master
Management Agreement and the Replacement Management Agreement and (ii) each
Co-Issuer shall, and the Master Issuer shall cause each other Securitization
Entity to, terminate the Master Manager and appoint one or more successor
Master Managers in accordance with the Master Management Agreement and the
Replacement Management Agreement if and when so directed by the Control Party.


 


(f)                                    Upon the occurrence of a Transaction
Manager Default under the Transaction Management Agreement, (i) each
Co-Issuer shall not, and the Master Issuer shall cause each other
Securitization Entity not to, without the prior written consent of the Control
Party, terminate the Transaction Manager and appoint any successor Transaction
Manager in accordance with the Transaction Management Agreement and (ii) each
Co-Issuer shall, and the Master Issuer shall cause each other Securitization
Entity to, terminate the Transaction Manager and appoint one or more successor
Transaction Managers in accordance with the Transaction Management Agreement and
the Replacement Management Agreement if and when so directed by the Control
Party.


 


(g)                                 Each Co-Issuer
agrees that it shall, and the Master Issuer shall cause each Securitization Entity to,
perform its obligations under each Related Document (including without
limitation the payment of any reimbursable expenses pursuant to such Related
Documents) and enforce the obligations of the Additional Securitization
Entities, if any, under and pursuant to the Related Documents.


 


(h)                                 Each Co-Issuer
agrees that it shall not, and the Master Issuer shall 


 


72

















 


cause each Securitization
Entity not to, permit
the validity or effectiveness of the Indenture to be impaired, or permit any
Lien under the Indenture to be subordinated, terminated or discharged, except
as permitted or contemplated by the terms of the Indenture.


 


Section 8.8                                      Notice of Defaults and Other Events.  Promptly (and in any event within two (2) Business
Days) following Actual Knowledge of the occurrence of any circumstances which
might reasonably be expected to constitute (i) an Early Amortization
Event, (ii) a Master Manager Default or a Transaction Manager Default, (iii) an
Event of Default or (iv) a default under any Related Document (other than
the Indenture), the Co-Issuers shall give the Trustee, the Administrative Agent
and the Rating Agencies with respect to each Series of Notes Outstanding
notice thereof (provided that such notice need not be sent to the Rating
Agencies in the case of a non-monetary default under the First Tier
Contribution Agreement), together with an Officer’s Certificate setting forth
the details thereof and any action with respect thereto taken or contemplated
to be taken by the Co-Issuers.  The
Co-Issuers shall, at their expense, promptly provide to the Trustee and the
Administrative Agent such additional information as the Trustee or the
Administrative Agent may reasonably request from time to time in connection
with the matters so reported, and the actions so taken or contemplated to be
taken.


 


Section 8.9                                      Notice of Material Proceedings. 
Without limiting Section 8.30, promptly (and in any event
within five (5) Business Days) upon the determination by any of the chief
executive officer, the chief financial officer, the chief operating officer,
the senior vice president-sales or the chief legal officer of the Master
Manager that the commencement or existence of any litigation, arbitration or
other proceeding with respect to it or any of its Affiliates would be
reasonably likely to have a Material Adverse Effect, the Co-Issuers shall give
written notice thereof to the Trustee and the Rating Agencies.


 


Section 8.10                                Further Requests.  Each
Co-Issuer shall, and the Master Issuer shall cause each other Securitization
Entity to, promptly furnish to the Trustee or any Rating Agency such additional
information regarding the financial position, results of operations or business
of NuCO2, the Master Issuer or any Securitization
Entity or such other information as, and in such form as, the Trustee or Rating
Agency may reasonably request in connection with the transactions contemplated
hereby or by any Series Supplement.


 


Section 8.11                                Further Assurances.


 


(a)                                  Each Co-Issuer shall, and the Master
Issuer shall cause each other Securitization Entity to, do such further acts
and things, and execute and deliver to the Trustee and the Administrative Agent
such additional assignments, agreements, powers and instruments, as are
necessary or desirable to obtain or maintain the security interest of the
Trustee in the Collateral on behalf of the Secured Parties as a perfected security
interest subject to no prior Liens (other than Permitted Liens), to carry into
effect the purposes of the Indenture or the other Related Documents or to
better assure and confirm unto the Trustee, the Administrative Agent, the
Noteholders or the other Secured Parties 


 


73

















 


their rights, powers and remedies hereunder including,
without limitation, the filing of any financing or continuation statements or
amendments under the UCC in effect in any jurisdiction with respect to the
liens and security interests granted hereby, except as set forth on Schedule 8.11
or in Section 8.25.  The
Co-Issuers intend the security interests granted pursuant to the Indenture in
favor of the Secured Parties to be prior to all other Liens (other than
Permitted Liens) in respect of the Collateral, and each Co-Issuer shall,
and the Master Issuer shall cause
each other Securitization Entity to, take all actions necessary to obtain and
maintain, in favor of the Trustee for the benefit of the Secured Parties, a
first priority perfected Lien on the Collateral (except with respect to
Permitted Liens).  If any Co-Issuer fails to perform any of
its agreements or obligations under this Section 8.11(a), the
Trustee or the Administrative Agent itself may perform such agreement or
obligation, and the expenses of the Trustee or the Administrative Agent
incurred in connection therewith shall be payable by the Co-Issuers upon the
Trustee’s or the Administrative Agent’s demand therefor.  The Trustee and the Administrative Agent are
hereby authorized to execute and file any financing statements, continuation
statements, amendments or other instruments necessary or appropriate to perfect
or maintain the perfection of the Trustee’s security interest in the
Collateral.


 


(b)                                 If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by any
promissory note, chattel paper or other instrument (other than checks required
to be deposited within two (2) Business Days to the Concentration Account
in accordance with the terms of this Indenture), such note, chattel paper or
instrument shall be deemed to be held in trust and, subject to an exception for
such notes, chattel paper and instruments that in the aggregate at any one time
do not evidence more than $10,000 payable to the Securitization Entities,
immediately pledged and within two (2) Business Days physically delivered
to the Trustee hereunder, and shall, subject to the rights of any Person in
whose favor a prior Lien has been perfected, be duly endorsed in a manner
satisfactory to the Trustee and delivered to the Trustee promptly.  In such event, the Co-Issuers will enter into
a custodial agreement with the Trustee on terms reasonably satisfactory to the
parties thereto.


 


(c)                                  Notwithstanding the provisions set forth
in clauses (a) and (b) above, the Co-Issuers shall not be
required to perfect any security interest in any fixtures (other than through a
central filing of a UCC financing statement).


 


(d)                                 If during any
Monthly Collection Period, any Co-Issuer shall assert in litigation an interest
in any commercial tort claim or claims (as such term is defined in the
New York UCC) and such commercial tort claim or claims (when added to any
past commercial tort claim or claims that were asserted by any Securitization
Entity prior to such Monthly Collection Period that are still outstanding) have
an aggregate value equal to or greater than $5,000,000 as of the last day of
such Monthly Collection Period, such Co-Issuer shall notify the Trustee and the
Administrative Agent on or before the Determination Date prior to the next
succeeding Payment Date that it has asserted such an interest and, at the
request of the Trustee or the Administrative Agent, shall sign and deliver
documentation acceptable to the Trustee and the Administrative Agent granting a



 


74

















 


security interest under the Base Indenture in
and to the proceeds of such commercial tort claim or claims.


 


(e)                                  Each Co-Issuer shall, and the Master
Issuer shall cause each other Securitization Entity to, warrant and defend the
Trustee’s right, title and interest in and to the Collateral and the income,
distributions and Proceeds thereof, for the benefit of the Trustee on behalf of
the Secured Parties, against the claims and demands of all Persons whomsoever.


 


(f)                                    On or before May 30th of each
calendar year, commencing with May 30, 2009, the Co-Issuers shall furnish
to the Trustee, the Administrative Agent and the Rating Agencies an Opinion of
Counsel reaffirming the opinions with respect to the perfection of Liens and
security interest created by this Base Indenture under Article 9 of the
New York UCC on the Collateral set forth in the Opinions of Counsel delivered
on the applicable Series Closing Date pursuant to the Note Purchase
Agreements.


 


Section 8.12                                Liens.  No Co-Issuer
shall, and the Master Issuer shall not permit any other Securitization Entity
to (a) create, incur, assume or permit to exist any Lien upon any of its
property,  other than (i) Liens in
favor of the Trustee for the benefit of the Secured Parties and (ii) other
Permitted Liens or (b) enter into any agreement prohibiting or
conditioning the creation of any Lien on any of its property (including the
Collateral) other than (i) this Base Indenture and the other Related
Documents, (ii) any agreements governing any Capitalized Lease Obligations
(or refinancings thereof) permitted by Section 8.13(iv) of
this Base Indenture (in which case, any prohibition or limitation shall only be
effective against the assets financed thereby), (iii) pursuant to
customary non-assignment or no-subletting clauses in leases, licenses or
contracts entered into in the ordinary course of business, which restrict only
the assignment of such lease, license or contract, as applicable, (iv) with
respect to property to be sold pursuant to an executed agreement in connection
with Permitted Asset Dispositions permitted by Section 8.16,
restrictions covering such specific property and (v) any restriction that
exists pursuant to applicable Requirements of Law.


 


Section 8.13                                Other Indebtedness.  No Co-Issuer
shall, and the Master Issuer shall not permit any other Securitization Entity
to, create, assume, incur, suffer to exist or otherwise become or remain liable
in respect of any Indebtedness other than (i) Indebtedness hereunder, (ii) any
guarantee by any Securitization Entity of the obligations of any other
Securitization Entity, (iii) any Indebtedness incurred in connection with
Permitted Hedges and (iv) Capitalized Lease Obligations relating to office
furnishings and office equipment of not more than $2,000,000 at any time
outstanding;


 


Section 8.14                                No ERISA Plan.  No
Securitization Entity or any corporation or any 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
shall establish, maintain, contribute to, incur any obligation to contribute
to, or incur any liability in respect of, any Plan.


 


75

















 


Section 8.15                                Mergers.  No Co-Issuer
shall, and the Master Issuer shall not permit any other Securitization Entity
to, merge or consolidate with or into any other Person, transfer substantially
all of its assets to any other Person or terminate or liquidate (whether by
means of single transaction or a series of related transactions).


 


Section 8.16                                Asset Dispositions.


 


No Co-Issuer shall, and the Master Issuer shall not
permit any other Securitization Entity to, sell, transfer, lease, license,
liquidate or otherwise dispose of any of its property (whether by means of
a single transaction or a series of related transactions), including any Equity
Interests of any other Securitization Entity, except in the case of the
following (each, a “Permitted Asset Disposition”):


 


(a)                                  any disposition
or other transfer of Bulk CO2 Tanks, Nitrogen Generators or
Customer Contracts of any of the Securitization Entities; provided  that with respect to any Excess Customer
Contract Disposition, the Control Party shall have provided its prior written
consent; provided  further  that with respect to any Notice Triggering Customer
Contract Disposition (i) prior written notice thereof shall have been
given to the Rating Agencies, and (ii) the Transaction Manager, on behalf
of the Securitization Entities, shall certify to the Rating Agencies that the
Three-Month DSCR on the immediately succeeding Payment Date (after giving
effect to such Disposition) will be equal to or greater than the Three-Month
DSCR on the immediately preceding Payment Date;


 


(b)                                 any Obsolete
Property Disposition or Disposition of any Miscellaneous Equipment; provided  that with respect to any Disposition of
Miscellaneous Equipment, such Disposition (individually or in combination with
all other such Dispositions of Miscellaneous Equipment) will not cause a
Material Adverse Effect; and


 


(c)                                  any other sale, lease, license, transfer
or other disposition of property to which the Control Party has given the
Master Issuer its prior written consent and which is not otherwise expressly
permitted by the Indenture or any other Related Document; provided  that the Master Issuer shall deliver a
copy of such prior written consent to the Rating Agencies.


 


In the case of any
Dispositions permitted by Section 8.16(a), the Asset Disposition
Amounts, (A) with respect to Dispositions of Customer Contracts, shall be
deposited to the Collection Account and applied as Asset Disposition Prepayment
Amounts in accordance with clause tenth and clause fifteenth, as
applicable, of the Priority of Payments, (B) with respect to Dispositions
of Bulk CO2 Tanks and Dispositions of Nitrogen
Generators, shall be deposited to the Collection Account as regular Collections
and applied in accordance with the Priority of Payments, and (C) with
respect to Excess Bulk CO2 Tank and Nitrogen Generator Dispositions,
shall be deposited to the Collection Account and applied as Asset Disposition Prepayment
Amounts in accordance with clause tenth and clause fifteenth, as
applicable, of the Priority of Payments;


 


76

















 


In the case of any
Dispositions permitted by Section 8.16(b), the related Asset
Disposition Amounts shall be deposited to the Collection Account as regular
Collections and applied in accordance with the Priority of Payments.


 


In the case of any
Dispositions permitted by Section 8.16(c), all proceeds arising from such sale, lease, license, transfer
or other disposition are deposited in accordance with the instructions provided
by the Control Party in the document providing such prior written consent, except  that
if such document does not contain deposit instructions, then such proceeds
shall be deposited into the Collection Account as regular Collections and
applied in accordance with the Priority of Payments.


 


Concurrently with
a Permitted Asset Disposition, upon request of the Co-Issuers, the Trustee, at
the written direction of the Transaction Manager, shall execute and deliver to
the Co-Issuers any and all documentation reasonably requested and prepared by
the Co-Issuers at their expense to effect or evidence the release by the
Trustee of its security interest on behalf of the Secured Parties in the
property disposed of in connection with such Permitted Asset Disposition.


 


Section 8.17                Acquisition of Assets.  No Co-Issuer
shall, and the Master Issuer shall not permit any other Securitization Entity
to, acquire, by long-term or operating lease or otherwise, any assets if such
acquisition when effected on behalf of any Securitization Entity by the
Transaction Manager, would constitute a breach by the Transaction Manager of
the Transaction Management Agreement.


 


Section 8.18                Dividends, Officers’ Compensation, etc.  The Master
Issuer shall not declare or pay any distributions on any of its limited
liability company interests; provided, however, that so long as
no Early Amortization Event, Default or Event of Default has occurred and is
continuing with respect to any Series of Notes Outstanding or would result
therefrom, the Master Issuer may declare and pay distributions to the extent
permitted under Section 18-607 of the Delaware Limited Liability Company
Act and the Master Issuer Operating Agreement. 
Without limiting Section 8.28, no Co-Issuer shall, and the
Master Issuer shall not permit any other Securitization Entity to, pay any
wages or salaries or other compensation to its officers, directors, managers or
other agents, if any, except as permitted to be paid pursuant to any Related
Documents.  Except as permitted in
connection with the formation of an Additional Securitization Entity, no
Co-Issuer shall, and the Master Issuer shall not permit any other Securitization
Entity to, redeem, purchase, retire or otherwise acquire for value any Equity
Interest or other security in or issued by such Securitization Entity or set
aside or otherwise segregate any amounts for any such purpose except as
consented to by the Control Party.


 


Section 8.19                Legal Name, Location Under Section 9-301 or 9-307. 
No Co-Issuer shall, and the Master Issuer shall not permit any other
Securitization Entity to, change its location (within the meaning of Section 9-301
or 9-307 of the applicable UCC) or its legal name without at least thirty (30)
days’ prior written notice to the Trustee, the Administrative Agent and the
Rating Agencies with respect to each Series of Notes Outstanding.  In the event that any Co-Issuer or other
Securitization Entity desires 


 


77

















 


to so change its location or change its legal name,
such Co-Issuer shall, or shall cause such other Securitization Entity to, make
any required filings and prior to actually changing its location or its legal
name such Co-Issuer shall, or shall cause such other Securitization Entity to,
deliver to the Trustee and the Administrative Agent (i) an Officer’s
Certificate and an Opinion of Counsel confirming that all required filings have
been made, subject to Section 8.11(c), to continue the perfected
interest of the Trustee on behalf of the Secured Parties in the Collateral
under Article 9 of the applicable UCC in respect of the new location or
new legal name of such Co-Issuer or other Securitization Entity and (ii) copies
of all such required filings with the filing information duly noted thereon by
the office in which such filings were made.


 


Section 8.20                                Charter Documents.  No Co-Issuer
shall, and the Master Issuer shall not permit any other Securitization Entity
to, amend, or consent to the amendment of any of its Charter Documents to which
it is a party as a member or shareholder unless, prior to such amendment, the
Trustee shall have received, in a form satisfactory to it, (a) a
bring-down of the non-consolidation opinion delivered on the Closing Date (or
thereafter in the case of an Additional Securitization Entity) expressly
confirming that giving effect to such amendment will not adversely affect the
analysis and conclusions in such opinion and (b) Rating Agency
Confirmation Letters shall have been delivered to the Trustee confirming each
applicable rating from the applicable Rating Agency with respect to each Series of
Notes then Outstanding; provided that the Control Party also shall have
consented to such amendment if such amendment could be expected, in any manner,
to change the amounts available for deposit (or the time of such deposit) to
the Concentration Account or the Collection Account that otherwise would be
derived from such Securitization Entity pursuant to the Related Documents.


 


Section 8.21                                Investments.  No Co-Issuer
shall, and the Master Issuer shall not, permit any other Securitization Entity
to, make, incur, or suffer to exist any loan, advance, extension of credit or
other investment in any Person if such investment when made on behalf of any
Securitization Entity by the Transaction Manager would constitute a breach by
the Transaction Manager of the Transaction Management Agreement other than (a) investments
of amounts in the Concentration Account, the Securitization Entity Accounts,
the Base Indenture Accounts and the Series Accounts or (b) in any
other Securitization Entity.


 


78

















 


Section 8.22                                No Other Agreements.  No Co-Issuer
shall, and the Master Issuer shall not permit any other Securitization Entity
to, enter into or be a party to any agreement or instrument other than any
Related Document, any Collateral Bulk Gases Business Document, any other
document permitted by a Series Supplement or the Related Documents, as the
same may be amended, supplemented or otherwise modified from time to time, any
documents related to any Enhancement (subject to Section 8.32) or
any Interest Rate Hedge (subject to Section 8.33) or any documents
or agreements incidental thereto or any other agreement if such transaction
when effected on behalf of any Securitization Entity by the Transaction Manager
would not constitute a breach by the Transaction Manager of the Transaction
Management Agreement.


 


Section 8.23                                Bulk Gases Business; Other Business.


 


(a)                                  Each Co-Issuer shall, and the Master
Issuer shall cause each other Securitization Entity to, maintain all licenses,
permits, charters and registrations required for the conduct of its portion of
the Bulk Gases Business and any other business in which such Co-Issuer is
authorized to engage in accordance with its Charter Documents, except for those
the failure of which to maintain would not, alone or in the aggregate, be
reasonably likely to result in a Material Adverse Effect; and


 


(b)                                 No Co-Issuer shall, and the Master Issuer
shall not permit any other Securitization Entity to, engage in any business or
enterprise or enter into any transaction other than in connection with the Bulk
Gases Business, the incurrence and payment of ordinary course operating
expenses, the issuing and selling of the Notes and other activities related to
or incidental to any of the foregoing or any other transaction which when
effected on behalf of any Securitization Entity by the Transaction Manager
would not constitute a breach by the Transaction Manager of the Transaction
Management Agreement.


 


Section 8.24                                Maintenance of Separate Existence.


 


(a)                                  Each Co-Issuer shall, and the Master
Issuer shall cause each other Securitization Entity to:


 


(i)                                     maintain their own deposit and securities
account, as applicable, or accounts, separate from those of any of its
Affiliates (other than the other Securitization Entities), with commercial
banking institutions and ensure that the funds of the Securitization Entities
will not be diverted to any Person who is not a Securitization Entity or for
other than the use of the Securitization Entities, nor will such funds be
commingled with the funds of any of its Affiliates (other than the other
Securitization Entities) other than as provided in the Related Documents;


 


(ii)                                  ensure that all transactions between it
and any of its Affiliates (other than the other Securitization Entities),
whether currently existing or hereafter entered into, shall be only on an arm’s
length basis, it being 


 


79

















 


understood and agreed
that the transactions contemplated in the Related Documents meet the
requirements of this clause (ii);


 


(iii)                               to the extent that it requires an office
to conduct its business, either (a) conduct its business from an office at
a separate address from that of any of its Affiliates (other than the other
Securitization Entities); provided that segregated offices in the same
building shall constitute separate addresses for purposes of this clause (a),
or (b) conduct its business from an office shared between such Co-Issuer
or Securitization Entity and any of its members or Affiliates (other than the
other Securitization Entities), provided that there shall be an
equitable and appropriate allocation of overhead costs among them, and each
such entity shall bear its fair share of such expenses;


 


(iv)                              issue separate financial statements from
any of its Affiliates (other than the other Securitization Entities) prepared
at least quarterly and prepared in accordance with GAAP;


 


(v)                                 conduct its affairs in its own name and
in accordance with its Charter Documents and observe all necessary, appropriate
and customary limited liability company or corporate formalities (as
applicable), including, but not limited to, holding all regular and special
meetings appropriate to authorize all its actions, keeping separate and
accurate minutes of its meetings, passing all resolutions or consents necessary
to authorize actions taken or to be taken, and maintaining accurate and
separate books, records and accounts, including, but not limited to, payroll
and intercompany transaction accounts;


 


(vi)                              not assume or guarantee any of the
liabilities of any of its Affiliates (other than the other Securitization
Entities);


 


(vii)                           take, or refrain from taking, as the case
may be, all other actions that are necessary to be taken or not to be taken in
order to (x) ensure that the assumptions and factual recitations set forth
in the Specified Bankruptcy Opinion Provisions remain true and correct in all
material respects with respect to it and (y) comply in all material
respects with those procedures described in such provisions which are
applicable to it;


 


(viii)                        maintain at least one Independent Manager
or Independent Director on its Board of Managers or its Board of Directors, as
the case may be.


 


(b)                                 Each Co-Issuer, on behalf of itself and
each of the other Securitization Entities, shall confirm on the Closing Date
that the statements contained under “Assumptions of Fact” in the opinion of
Gibson, Dunn & Crutcher LLP regarding substantive consolidation and
true sale or true contribution matters delivered to the Trustee on the Closing
Date are true and correct with respect to itself and each other
Securitization Entity, and that each Co-Issuer shall, and the Master Issuer shall cause
each other Securitization Entity to, act in a manner consistent with the
assumptions and factual recitations set forth in such opinion, and comply with
any covenants or


 


80














 


obligations assumed to be complied with by it
therein as if such covenants and obligations were set forth herein.


 


Section 8.25                                Covenants Regarding the Securitization IP.


 


(a)                                  No Co-Issuer shall, and the Master Issuer
shall not permit any other Securitization Entity to, take or omit to take any
action with respect to the maintenance, enforcement and defense of the IP
Holder’s (or any Additional IP Holder’s) rights in and to the Securitization IP
that would constitute a breach by the Transaction Manager of the Transaction Management
Agreement if such action were taken or omitted by the Transaction Manager on
behalf of any Securitization Entity.


 


(b)                                 The Co-Issuers shall notify the Trustee
in writing within ten (10) Business Days of any Co-Issuer’s Actual Knowledge
or having reason to know that any application or registration relating to any
material Securitization IP, including any Trademark included in the Existing
Securitization IP (now or hereafter existing), may become abandoned or
dedicated to the public domain, or of any material adverse determination or
development (including the institution of, or any such determination or
development in, any proceeding in the PTO, the United States Copyright Office
or any court, but excluding any non-final determinations (other than in an
adversarial proceeding) of the PTO) regarding the validity or any
Securitization Entity’s ownership of any material Securitization IP, its right
to register the same, or to keep and maintain the same.


 


(c)                                  With respect to the Securitization IP,
the IP Holder agrees to, and each other Co-Issuer agrees to cause the IP Holder
(and any Additional IP Holder) to, execute, deliver and file instruments
substantially in the form of Exhibit C-1 hereto with respect to
Trademarks, Exhibit C-2 hereto with respect to Patents and Exhibit C-3
with respect to Copyrights, as each such type of Intellectual Property is
included in the Securitization IP, or otherwise in form and substance
satisfactory to the Control Party, and any other instruments or documents as
may be reasonably necessary or, in the Control Party’s opinion, desirable under
any Requirement of Law and agreed upon by the IP Holder (and each applicable
Additional IP Holder) and the Control Party, to perfect or protect the Trustee’s
security interest granted under this Base Indenture in the Patents, Trademarks
and Copyrights included in the Securitization IP.


 


(d)                                 If any Co-Issuer, either itself or
through any agent, licensee or designee, shall file an application for the
registration of any Patent, Trademark or Copyright with the PTO or the United
States Copyright Office, such Co-Issuer, will within a reasonable time after
such filing (and in any event within ninety (90) days for Patents and
Trademarks and thirty (30) days for Copyrights) (i) give the Trustee
written notice thereof and (ii) upon reasonable request of the Control
Party, subject to Section 3.1(a)(iv), shall execute and deliver all
instruments and documents, and take all further action, that the Control Party
may request in order to continue, perfect or protect the security interest
granted hereunder, including, without limitation, executing and delivering (x) the
Supplemental Grant of Security Interest in Trademarks substantially in the form
attached as Exhibit D-1 hereto, (y) the Supplemental Grant of
Security Interest 


 


81

















 


in Patents substantially in the form attached as Exhibit D-2
hereto and/or (z) the Supplemental Grant of Security Interest in
Copyrights substantially in the form attached as Exhibit D-3 hereto.


 


(e)                                  In the event that any material
Securitization IP is infringed upon, misappropriated, violated or diluted by a
third party, the IP Holder (or any Additional IP Holder) upon having Actual
Knowledge of such infringement, violation, misappropriation or dilution shall
promptly notify the Trustee in writing. 
The IP Holder (or any Additional IP Holder) shall take all reasonable
and appropriate actions, at its expense, to protect or enforce such material
Securitization IP, including suing for infringement, violation,
misappropriation or dilution and seeking an injunction (including, if
appropriate, temporary and/or preliminary injunctive relief) against such
infringement, violation, misappropriation or dilution, unless the failure to
take such actions if taken on behalf of the IP Holder (or any Additional IP
Holder) by the Transaction Manager would not constitute a breach by the
Transaction Manager of the Transaction Management Agreement; provided
that if the IP Holder (or any Additional IP Holder) decides not to take action
with respect to a material infringement, violation, misappropriation or
dilution, the IP Holder (or any Additional IP Holder) shall deliver written
notice to the Trustee setting forth in reasonable detail the basis for its
decision not to act.


 


(f)                                    The parties agree that the Securitization
IP License Agreement and any sublicense thereof by the Contract Holder may only
be amended, terminated or assigned by the parties thereto with the consent of
the Control Party, notwithstanding any other obligations, restrictions or
requirements related to amendments, termination or assignment contained in such
Securitization IP License Agreement.  The
parties agree that the Trustee shall be a third party beneficiary of the rights
(but none of the duties, obligations or liabilities) arising under the
Securitization IP License Agreement for so long as there are Notes Outstanding
under this Base Indenture, and that the Trustee may enforce the provisions of
the Securitization IP License Agreement and exercise the rights of the IP
Holder under the Securitization IP License Agreement in connection with a
liquidation of the collateral upon and during the continuance of an Event of
Default.


 


Section 8.26                                Contributions.  The Master Issuer
shall, or shall cause the Master Manager to, deposit each Contribution into the
Collection Account.


 


Section 8.27                                Real Property Leases.  No Co-Issuer
shall, and the Master Issuer shall not permit any other Securitization Entity
to, enter into any lease of real property (other than in connection with the
Real Estate Leases).


 


Section 8.28                                No Employees.  The
Co-Issuers and the other Securitization Entities shall have no employees.


 


Section 8.29                                Insurance.  The
Co-Issuers shall maintain, or cause the Transaction Manager to maintain, with
financially sound insurers with (i) at least one of the following:  a Moody’s Credit Rating of not less than “A2”,
an S&P Credit Rating of not less than “A” or a Fitch Credit Rating of not
less than “A” and (ii) a claims-paying 


 


82

















 


ability rated not less than “A:VIII” by A.M. Best’s
Key Rating Guide, insurance coverages as required pursuant to the Transaction
Management Agreement; provided that the Co-Issuers shall cause NuCO2 to list each
Securitization Entity as an “additional insured” or “loss payee” or “co-insured”
on any insurance maintained by NuCO2 for the benefit of the Securitization
Entity.  The terms and conditions of all
such insurance shall be no less favorable to the Co-Issuers than the terms and
conditions of insurance maintained by their Affiliates that are not
Securitization Entities.  The Co-Issuers
shall annually provide to the Trustee and the Administrative Agent an insurance
certificate showing that the insurance required to be maintained by the
Co-Issuers hereunder is in full force and effect, by not later than May 31st
of each calendar year.  Schedule 8.29
attached hereto sets forth every insurance policy maintained by the Co-Issuers,
the Transaction Manager and NuCO2 as of the Closing Date, and further identifies
the “primary insured” and “co-insureds” for each insurance policy.


 


Section 8.30                                Litigation.  If NuCO2 is not then
subject to Section 13 or 15(d) of the Exchange Act, the Co-Issuers
shall, on each Payment Date (or promptly after obtaining Actual Knowledge
thereof), provide a written report to the Trustee and the Rating Agencies that
sets forth all outstanding litigation, arbitration or other proceedings against
NuCO2 or
any of its Subsidiaries that would have been required to be disclosed in NuCO2’s annual reports, quarterly reports and other public
filings which NuCO2 would have been required to file with the
Securities and Exchange Commission pursuant to Section 13 or 15(d) of
the Exchange Act if NuCO2 were subject to such sections.


 


Section 8.31                                Environmental.  If NuCO2 is not then
subject to Section 13 or 15(d) of the Exchange Act, the Co-Issuers
shall, and the Master Issuer shall cause each other Securitization Entity to,
promptly notify the Trustee and the Rating Agencies, in writing, upon receipt
of any written notice of which any Securitization Entity becomes aware from any
source of facts or allegations (including but not limited to a governmental
entity) relating in any way to any possible material liability of any
Securitization Entity pursuant to any Environmental Law that would have
been required to be disclosed in NuCO2’s annual reports, quarterly reports and other
public filings which NuCO2 would have been required to file
with the Securities and Exchange Commission pursuant to Section 13 or 15(d) of
the Exchange Act if NuCO2 were subject to such sections.


 


Section 8.32                                Enhancements.  No
Enhancement shall be provided in respect of any Series of Notes, nor will
any Enhancement Provider have any rights hereunder, as third-party beneficiary
or otherwise, except as determined by the Transaction Manager as commercially
reasonable to provide Enhancement with respect to the Notes.


 


Section 8.33                                Interest Rate Hedges; Derivatives Generally.


 


(a)                                  No Interest Rate Hedge shall be provided
in respect of any Series of Notes, nor will any Hedge Counterparty have
any rights hereunder, as third-party beneficiary or otherwise, except for
Permitted Hedges that are determined by the 


 


83

















 


Transaction Manager as commercially reasonable to hedge interest rate
exposure of the Co-Issuers under the Indenture or any Series of Notes.


 


(b)                                 No Co-Issuer shall, and the Master Issuer
shall not permit any other Securitization Entity to, enter into any derivative
contract, swap, option, hedging contract, forward purchase contract or other
similar agreement or instrument if any such contract, agreement or instrument
requires the Co-Issuers to expend any financial resources to satisfy any
payment obligations owed in connection therewith except as determined by the
Transaction Manager in its commercially reasonable judgment as necessary in the
operation of the business of the Co-Issuers.


 


Section 8.34                                Additional Securitization Entity.


 


(a)                                  The Co-Issuers shall not form or cause to
be formed any Additional Securitization Entities other than in accordance with
and as permitted under the Related Documents, and without first obtaining the
prior written consent of the Control Party; provided that the prior
written consent of the Control Party shall not be required if such Additional
Securitization Entity is a Delaware limited liability company or a Delaware
corporation and has adopted Charter Documents substantially similar to the Charter
Documents of the Securitization Entities that are Delaware limited liability
companies or Delaware corporations, as applicable, as in existence on the
Closing Date.


 


(b)                                 If any Co-Issuer desires to create,
incorporate, form or otherwise organize an Additional Securitization Entity
that does not comply with the proviso set forth in clause (a) above,
such Co-Issuer shall first obtain the prior written consent of the Control
Party; provided that the Master Issuer shall deliver a copy of any such
prior written consent to the Rating Agencies.


 


(c)                                  Any direct or indirect Subsidiary formed
by the Co-Issuers pursuant to clause (a) or clause (b) above
shall automatically be designated as an Additional Securitization Entity, and
the Co-Issuers shall cause any such Additional Securitization Entity to become
an Additional Co-Issuer.  The Co-Issuers
shall cause such Additional Securitization Entity to promptly execute a
Supplement to the Indenture pursuant to which such Additional Securitization
Entity shall become jointly and severally obligated under the Indenture with
the other Co-Issuers.  The Co-Issuers
shall, if applicable, designate any such Additional Co-Issuer as (i) an
Additional Contract Holder; provided that such Additional Co-Issuer owns
Customer Contracts, or (ii) an Additional IP Holder; provided that
such Additional Co-Issuer owns Securitization IP.


 


(d)                                 Upon the execution and delivery of a
Supplement as required by clause (c) above, any Additional
Securitization Entity party thereto will become a party to the Indenture with
the same force and effect as if originally named therein as a Co-Issuer and,
without limiting the generality of the Indenture, will assume all Obligations
and liabilities of a Co-Issuer hereunder.


 


Section 8.35                                Subordinated Note Repayments. 
No Co-Issuer shall repay any Subordinated Notes after the Series Adjusted
Repayment Date with respect to 


 


84

















 


the Initial Series of Notes with amounts obtained
by the Master Issuer from NuCO2 or any other direct or indirect owner of
Equity Interests of the Master Issuer in the form of any capital contributions
or any portion of any Surplus Amounts distributed to the Master Issuer pursuant
to the Priority of Payments unless and until all Senior Notes Outstanding have
been paid in full and are no longer Outstanding.


 


Section 8.36                                Registration under Securities Laws. 
The Co-Issuers shall, and the Master Issuer shall cause each
Securitization Entity to, take all reasonable actions necessary so as to exempt
any Class of any Series of Notes and the sale thereof from
registration under the 1933 Act (including permitting compliance with Rule 144A),
or under any applicable securities laws, and use all reasonable efforts to
permit any Series of Notes to be designated as PORTAL securities if so
requested by the Initial Purchaser or any placement agent.


 


Section 8.37                                Control Party.  The
Co-Issuers shall, and the Master Issuer shall cause each Securitization Entity
to, comply with all directions of the Control Party properly given in
accordance with the terms of the Indenture.


 


Section 8.38                                Other Accounts.  Except with
respect to the Surplus Account, so long as any Notes remain Outstanding, none
of the Co-Issuers, and none of the Securitization Entities, shall (i) own
any deposit account except as may be pledged to the Trustee or (ii) make
any deposits into any account other than in accordance with the terms of this
Base Indenture and the other Related Documents.


 


Section 8.39                                Transaction with NuCO2 and Affiliates. 
The Co-Issuers shall not, and the Master Issuer shall cause each
Securitization Entity not to, enter into any transactions with NuCO2 or its Affiliates, except as contemplated or permitted
by the Related Documents (including without limitation any Contribution
pursuant to Section 8.26 of this Base Indenture or any equity
contributions that do not constitute “Contributions”) and the Collateral Bulk
Gases Business Documents (including, for the avoidance of doubt, entering into
such Related Documents and Collateral Bulk Gases Business Documents).


 


Section 8.40                                Investment Company Act.  The
Co-Issuers shall not, and the Master Issuer shall cause each Securitization
Entity not to, take or suffer or permit to occur any action that would cause
such entity to be registered as an “investment company” under the Investment
Company Act.


 


ARTICLE IX


 


REMEDIES


 


Section 9.1                                      Early Amortization Events.


 


Upon the occurrence of any one of the following
events:


 


85

















 


(a)                                  the Three-Month DSCR with respect to any
Payment Date is less than 1.40 times;


 


(b)                                 a Master Manager Default under the Master
Management Agreement has occurred and is continuing;


 


(c)                                  an Event of Default has occurred and is
continuing; or


 


(d)                                 the Co-Issuers have not repaid or
refinanced any Series of Notes (or Class thereof) on or prior to the
applicable Series Adjusted Repayment Date,


 


an “Early
Amortization Event” shall be deemed to have occurred automatically without
the giving of further notice or any other action on the part of
the Trustee or any Noteholder; provided,
that an Early Amortization Event may be waived by the Control Party in its sole
discretion, except that (i) a waiver of an Early Amortization Event
described in clause (c),
if the applicable Event of Default is an event described in clause (a) or clause (f) of the definition of an “Event
of Default” in Section 9.2, shall require the consent of all
Noteholders, unless such Event of Default has been cured or waived, and (ii) a
waiver of an Early Amortization Event described in clause (d) shall
require the consent of the Holders of 100% of the Aggregate Outstanding
Principal Amount of the applicable Series of Notes.


 


Section 9.2                                      Events of Default.


 


If any one of the following events shall occur (the
occurrence of each of which shall constitute an “Event of Default”
hereunder):


 


(a)                                  any Co-Issuer defaults in the payment of (i) any
interest (excluding (a) Contingent Additional Interest with respect to any
Series of Notes prior to the date on which all principal of such Series of
Notes that remains Outstanding is due and payable and (b) any interest of
which the non-payment is deemed not to constitute an Event of Default pursuant
to the applicable Series Supplement), Commitment Fees in respect of any
Senior Notes or other amount payable (other than amounts referred to in clause
(ii) herein) in respect of, any Series of Notes Outstanding when
the same becomes due and payable or (ii) any principal of any Series of
Notes Outstanding or any other Obligation (other than amounts referred to in clause
(i) herein) when the same becomes due and payable (whether on any Series Legal
Final Maturity Date, any redemption date, any optional prepayment date or any
maturity date or otherwise with respect to such Series);


 


(b)                                 the Three-Month DSCR with respect to any
Payment Date is less than 1.20 times (excluding the effect of all
Contributions);


 


(c)                                  any Securitization Entity, NuCO2 or the Employee
Company fails to comply with any of its agreements or covenants in, or
provisions of, the Indenture or any other Related Document (other than with
respect to any provision of the Charter Documents covered by clause (h) below)
to which it is a party and the failure continues unremedied for a period of
thirty (30) days after the earlier of (a) the date on which any 


 


86

















 


Securitization Entity or the Employee Company, as applicable, obtains
Actual Knowledge thereof or (b) the date on which written notice of such
failure, requiring the same to be remedied, is given to any Securitization
Entity or the Employee Company, as applicable, by the Trustee or to each
Securitization Entity and the Trustee by the Control Party;


 


(d)                                 any representation made by any
Securitization Entity or the Employee Company in the Indenture or any other
Related Document is false in any material respect when made and such false
representation is not cured for a period of thirty (30) days after the earlier
of (a) the date on which any Securitization Entity or the Employee Company
obtains Actual Knowledge thereof or (b) the date that written notice
thereof is given to any Securitization Entity or the Employee Company by the
Trustee or to each Securitization Entity or the Employee Company and the
Trustee by the Control Party;


 


(e)                                  an effective resolution is passed by any
Securitization Entity or the Employee Company for the winding up or liquidation
of such Securitization Entity or the Employee Company, as applicable, except
for the purpose of a merger, consolidation or amalgamation in accordance with
the terms of this Base Indenture, the terms of which have previously been
approved in writing by the Control Party of each Series of Notes;


 


(f)                                    the occurrence of an Event of Bankruptcy
with respect to any Securitization Entity or the Employee Company;


 


(g)                                 any Securitization Entity or the Employee
Company registers or is required to register as an “investment company” under
the Investment Company Act, or any body with jurisdiction makes a final
determination that any Securitization Entity is an “investment company” or an “affiliated
person” of, or “promoter” or “principal underwriter” for, an “investment
company,” as such terms are defined in the Investment Company Act;


 


(h)                                 any Securitization Entity or the Employee
Company fails to comply in any material respect with Section 9(c) of
the Master Issuer Operating Agreement or the comparable provisions of such
Securitization Entity’s or the Employee Company’s Charter Documents and such
failure continues for a period of five (5) Business Days after (i) the
date on which any Securitization Entity or the Employee Company, as applicable,
obtains Actual Knowledge thereof or (ii) the date on which written notice
of such failure is given to any Securitization Entity or the Employee Company,
as applicable, by the Trustee or to each Securitization Entity or the Employee
Company, as applicable, and the Trustee by the Control Party;


 


(i)                                     the Master Issuer itself or through any
Securitization Entity fails to have good title to the Contributed Property and
all other Collateral, free and clear of all Liens, other than Permitted Liens,
except for such failures which, collectively, could not reasonably be expected
to result in a Material Adverse Effect;


 


87

















 


(j)                                     the Trustee ceases to have for any reason
a valid and perfected first priority security interest in the Collateral to the
extent required by the Related Documents or NuCO2  or any Affiliate thereof so
asserts in writing except as a result of Permitted Liens;


 


(k)                                  a final judgment or order for the payment
of money shall be rendered against any Securitization Entity or the Employee
Company and such judgment or order (x) against any Securitization Entity,
is in an amount which exceeds $100,000 or (y) against the Employee
Company, is in an amount which exceeds $15,000,000, and in each case is not
covered by insurance and either: (i) such judgment or order is not
discharged within the period of 30 days after entry thereof or (ii) there
shall be any period of 30 consecutive days during which a stay of enforcement
of such judgment or order shall not be in effect;


 


(l)                                     the Post-Adjusted Repayment Date DSCR
with respect to any Payment Date on or after the eighth anniversary of the
Closing Date is less than 1.20 times;


 


(m)                               any of the Related Documents or a
material portion thereof ceases to be in full force and effect or enforceable
in accordance with its terms (other than in accordance with the express
termination provisions thereof) or NuCO2,
any Affiliate thereof or any Securitization Entity or the Employee Company so
asserts in writing; or


 


(n)                                 a final non-appealable ruling has been
made by a court of competent jurisdiction, or any Securitization Entity or NuCO2 so asserts in
writing, that the sale or contribution of the Collateral (other than any
immaterial Collateral and any Collateral which has been disposed of, to the
extent permitted under this Base Indenture) pursuant to the First Tier
Contribution Agreement does not constitute a “true contribution,” a “true sale,”
or other absolute transfer of such Collateral pursuant to such First Tier
Contribution Agreement;


 


then (i) in
the case of any event described in each clause above (except for clause (f) thereof)
that is continuing the Trustee, at the direction of the Control Party and on
behalf of the Noteholders, by written notice to the Co-Issuers, may declare the
Notes of all Series to be immediately due and payable, and upon any such
declaration the unpaid principal amount of the Notes of all Series, together with
accrued and unpaid interest thereon through the date of acceleration, and all
other amounts due to the Noteholders and the other Secured Parties under the
Indenture Documents shall become immediately due and payable or (ii) in
the case of any event described in clause (f) above, the
unpaid principal amount of the Notes of all Series, together with interest
accrued but unpaid thereon through the date of acceleration, and all other
amounts due to the Noteholders and the other Secured Parties under the Indenture,
shall immediately and without further act become due and payable.  Promptly following the Trustee’s receipt of
written notice hereunder of any Event of Default, the Trustee shall send a copy
thereof, or notice thereof if the Trustee otherwise has Actual Knowledge of
such Event of Default, to the Co-Issuers, NuCO2,
the Transaction Manager, each Rating Agency, the Replacement Manager, the
Administrative Agent, each Noteholder and each other Secured Party.


 


88

















 


The foregoing notwithstanding, the failure by the
Co-Issuers to make a mandatory redemption of Notes to prevent any Notes from
being treated as an “applicable high yield discount obligations” in accordance
with the applicable Series Supplement shall not constitute an Event of
Default.


 


At any time after such a declaration of acceleration
with respect to the Notes has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee, as hereinafter
provided in this Article IX, the Control Party, by written notice
to the Co-Issuers and to the Trustee, may rescind and annul such declaration
and its consequences, if all existing Events of Default, other than the
non-payment of the principal of the Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 9.7.  No such rescission shall affect any
subsequent default or impair any right consequent thereon.


 


An Event of Default
described in Section 9.2(a) above that has not been cured or
described in Section 9.2(f) above shall not be subject to
waiver without the consent of all Noteholders. 
Any other Default or Event of Default may be waived by the Control Party
by notice to the Trustee and the Rating Agencies.


 


Section 9.3                                      Rights of the Control Party and Trustee upon Event of
Default.


 


(a)                                  Payment of Principal and Interest. 
Each Co-Issuer covenants that if (i) default is made in the payment
of any interest on any Series of Notes Outstanding when the same becomes
due and payable, (ii) the Notes are accelerated following the occurrence
of an Event of Default or (iii) default is made in the payment of the
principal of, or premium, if any, on any Series of Notes Outstanding when
due and payable, the Co-Issuers shall, to the extent of funds available, upon
demand of the Trustee, at the direction of the Control Party, pay to the
Trustee, for the benefit of the Noteholders, the whole amount then due and
payable on the Notes for principal, premium, if any, and interest, and, to the
extent payment at such rate of interest shall be legally enforceable, upon
overdue installments of interest, at the applicable Note Rate and any default
rate, as applicable, and in addition thereto such further amount as shall be
sufficient to cover costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee and its
agents and counsel.


 


(b)                                 Proceedings To Collect Money. 
In case any Co-Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee (at the direction of the Control Party), in its own name
and as trustee of an express trust, may institute a Proceeding for the
collection of the sums so due and unpaid, and may prosecute such Proceeding to
judgment or final decree, and may enforce the same against any Co-Issuer and
collect in the manner provided by law out of the property of any Co-Issuer,
wherever situated, the moneys adjudged or decreed to be payable.


 


(c)                                  Other Proceedings. 
If and whenever an Event of Default shall have occurred and be
continuing, the Trustee may and, at the direction of the Control Party pursuant
to a Control Party Order, shall:


 


89

















 


(i)                                     proceed to protect and enforce its rights
and the rights of the Noteholders and the other Secured Parties, by such
appropriate Proceedings as the Trustee (at the direction of the Control Party)
or the Control Party shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
the Indenture or any other Related Document or in aid of the exercise of any
power granted therein, or to enforce any other proper remedy or legal or
equitable right vested in the Trustee by the Indenture or any other Related
Document or by law, including any remedies of a secured party under applicable
law;


 


(ii)                                  (A) direct the Co-Issuers to
exercise (and each Co-Issuer agrees to exercise) all rights, remedies, powers,
privileges and claims of any Co-Issuer against any party to any Collateral
Document arising as a result of the occurrence of such Event of Default or
otherwise, including the right or power to take any action to compel
performance or observance by any such party of its obligations to any
Co-Issuer, and any right of any Co-Issuer to take such action independent of
such direction shall be suspended, and (B) if (x) the Co-Issuers
shall have failed, within ten (10) Business Days of receiving the
direction of the Trustee (given at the direction of the Control Party), to take
commercially reasonable action to accomplish such directions of the Trustee, (y) any
Co-Issuer refuses to take such action or (z) the Control Party reasonably
determines that such action must be taken immediately, take such previously directed
action (and any related action as permitted under the Indenture thereafter
determined by the Trustee or the Control Party to be appropriate without the
need under this provision or any other provision under the Indenture to direct
the Co-Issuers to take such action);


 


(iii)                               institute Proceedings from time to time
for the complete or partial foreclosure of the Indenture or, to the extent
applicable, any other Related Document, with respect to the Collateral; provided
that the Trustee shall not be required to take title to any real property in
connection with any foreclosure or other exercise of remedies hereunder and
title to such property shall instead be acquired in an entity designated and
(unless owned by a third party) controlled by the Control Party; and/or


 


(iv)                              sell all or a portion of the Collateral
at one or more public or private sales called and conducted in any manner
permitted by law; provided, however, that the Trustee shall not
proceed with any such sale without the prior written consent of the Control
Party, and the Trustee shall provide notice to the Co-Issuers and each Holder
of Subordinated Notes of a proposed sale of Collateral.


 


(d)                                 Sale of Collateral. 
In connection with any sale of the Collateral hereunder or under any
judgment, order or decree in any judicial proceeding for the foreclosure or
involving the enforcement of the Indenture or any other Related Document:


 


90














 


(i)            the Trustee, any Noteholder and/or any other Secured
Party may bid for and purchase the property being sold, and upon compliance
with the terms of the sale may hold, retain, possess and dispose of such
property in its own absolute right without further accountability;


 


(ii)           the Trustee (at the direction of the Control Party)
may make and deliver to the purchaser or purchasers a good and sufficient deed,
bill of sale and instrument of assignment and transfer of the property sold;


 


(iii)          all right, title, interest, claim and demand
whatsoever, either at law or in equity or otherwise, of any Securitization
Entity of, in and to the property so sold shall be divested; and such sale
shall be a perpetual bar both at law and in equity against such Securitization
Entity, its successors and assigns, and against any and all Persons claiming or
who may claim the property sold or any part thereof from, through or under such
Securitization Entity or its successors or assigns; and


 


(iv)          the receipt by the Trustee of the applicable proceeds
shall be a sufficient discharge to the purchaser or purchasers at such sale for
his or their purchase money, and such purchaser or purchasers, and his or their
assigns or personal representatives, shall not, after paying such purchase
money and receiving such receipt of the Trustee or of such officer therefor, be
obliged to see to the application of such purchase money or be in any way
answerable for any loss, misapplication or non-application thereof.


 


(e)           Application of Proceeds. 
Any amounts obtained by the Trustee on account of or as a result of the
exercise by the Trustee of any right hereunder shall be held by the Trustee as
additional collateral for the repayment of Obligations, shall be deposited into
the Collection Account and shall be applied as provided in Article V;
provided, however, that with respect to any distribution to any Class of
Notes, notwithstanding the provisions of Article V, such amounts
shall be distributed sequentially in order of alphabetical designation
and pro rata among each Class of Notes of the same
alphabetical designation based upon Outstanding Principal Amount of the Notes
of each such Class.  Any amounts
remaining after all of the Obligations have been indefeasibly paid in full
shall be transferred by the Trustee to NuCO2 in an amount equal to the amount of proceeds,
if any, realized by the Trustee from an exercise of remedies under the Pledge
Agreement, with any remaining amounts being transferred to the Master Issuer.


 


(f)            Additional Remedies. 
In addition to any rights and remedies now or hereafter granted
hereunder or under applicable law with respect to the Collateral, the Trustee
shall have all of the rights and remedies of a secured party under the UCC as
enacted in any applicable jurisdiction.


 


(g)           Proceedings. 
The Trustee may maintain a Proceeding even if it does not possess any of
the Notes or does not produce any of them in the Proceeding, and 


 


91

















 


any such Proceeding instituted by the Trustee shall be in its own name
as trustee.  All remedies are cumulative
to the extent permitted by law.


 


(h)           Power of Attorney. 
Each Co-Issuer hereby grants to the Trustee an absolute power of
attorney to sign, upon the occurrence and during the continuance of an Event of
Default, any document which may be required by the United States Patent and
Trademark Office, United States Copyright Office or any other Governmental
Authority in order to effect an absolute assignment of all right, title and
interest in or to any Securitization IP, and record the same.  The power of attorney granted under this Section 9.3(h) shall
be deemed to be coupled with an interest and shall be irrevocable and shall
survive, and shall not be affected by, any insolvency or dissolution of all or
any of the Co-Issuers.


 


Section 9.4             Waiver of Appraisal, Valuation, Stay and
Right to Marshaling.  To the extent it may lawfully do so, each
Co-Issuer for itself and for any Person who may claim through or under it
hereby:


 


(a)           agrees that neither it nor any such
Person shall step up, plead, claim or in any manner whatsoever take advantage
of any appraisal, valuation, stay, extension or redemption laws, now or
hereafter in force in any jurisdiction, which may delay, prevent or otherwise
hinder (i) the performance, enforcement or foreclosure of the Indenture, (ii) the
sale of any of the Collateral or (iii) the putting of the purchaser or
purchasers thereof into possession of such property immediately after the sale
thereof;


 


(b)           waives all benefit or advantage of any
such laws;


 


(c)           waives and releases all rights to have
the Collateral marshaled upon any foreclosure, sale or other enforcement of the
Indenture; and


 


(d)           consents and agrees that, subject to the
terms of the Indenture, all the Collateral may at any such sale be sold by the
Trustee as an entirety or in such portions as the Trustee may (upon direction
by the Control Party) determine.


 


Section 9.5             Limited Recourse.


 


Notwithstanding any other provision of the Indenture,
the Notes or any other Related Document or otherwise, the liability of the
Securitization Entities to the Noteholders and any other Secured Parties under
or in relation to the Indenture, the Notes or any other Related Document or
otherwise, is limited in recourse to the Collateral.  Once the Collateral has been applied in
accordance with the terms of the Indenture, none of the Noteholders or any
other Secured Parties shall be entitled to take any further steps against any
Securitization Entity to recover any sums due but still unpaid hereunder, under
the Notes or under any of the other Related Documents, all claims in respect of
which shall be extinguished.


 


92

















 


Section 9.6             Optional Preservation of the Collateral.


 


If the maturity of the Outstanding Notes of each Series has
been accelerated pursuant to Section 9.2 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Trustee at the direction of the Control Party pursuant to a
Control Party Order, shall elect to maintain possession of such portion, if
any, of the Collateral as the Control Party shall in its discretion determine.


 


Section 9.7             Waiver of Past Events.


 


Prior to the declaration of the acceleration of the
maturity of each Series of Notes Outstanding as provided in Section 9.2
and subject to Section 12.2, the Control Party by notice to the
Trustee and the Rating Agencies, may waive any existing Default or Event of
Default described in any clause of Section 9.2 (except clause (f) thereof)
and its consequences.  Upon any such
waiver, such Default shall cease to exist and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of the
Indenture, but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon. 
Subject to Section 12.2, a Default or an Event of Default
described in clause (f) of Section 9.2 shall not
be subject to waiver.  Subject to Section 12.2,
the Control Party, by notice to the Trustee and the Rating Agencies, may waive
any existing potential Early Amortization Event or any existing Early
Amortization Event in its sole discretion; provided however,
that an Early Amortization Event described in clause (d) of Section 9.1
relating to a particular Series of Notes (or Class thereof) shall not
be permitted to be waived by any party unless each affected Noteholder has
consented to such waiver.


 


Section 9.8             Control by the Control Party.


 


Notwithstanding any other provision hereof, the Control
Party may cause the institution of and direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercise
any trust or power conferred on the Trustee; provided that:


 


(a)           such direction of time, method and place
shall not be in conflict with any rule of law or with the Indenture;


 


(b)           the Trustee may take any other action
deemed proper by the Trustee  that is not
inconsistent with such direction (as the same may be modified by the Control
Party); and


 


(c)           such direction shall be in writing;


 


provided further that, subject to Section 10.1,
the Trustee need not take any action that it determines might involve it in
liability unless it has received an indemnity for such liability as provided
herein.


 


93

















 


Section 9.9             Limitation on Suits.


 


Any other provision of the Indenture to the contrary
notwithstanding, a Holder of Notes may pursue a remedy with respect to the
Indenture or any other Related Document only if:


 


(a)           the Noteholder gives to the Trustee
written notice of a continuing Event of Default;


 


(b)           the Noteholders of at least 25% of the
aggregate Principal Amount of all then Outstanding Notes make a written request
to the Trustee to pursue the remedy;


 


(c)           such Noteholder or Noteholders offer and,
if requested, provide to the Trustee indemnification satisfactory to the
Trustee against any loss, liability or expense;


 


(d)           the Trustee has not complied with the
request within sixty (60) days after receipt of the request and the offer and,
if requested, the provision of indemnification reasonably satisfactory to it;


 


(e)           during such sixty (60) day period the
Control Party does not give the Trustee a direction inconsistent with the
written request; and


 


(f)            the Control Party has consented to the
pursuit of such remedy.


 


A
Noteholder may not use the Indenture or any other Related Document to prejudice
the rights of another Noteholder or to obtain a preference or priority over
another Noteholder.


 


Section 9.10           Unconditional Rights of Noteholders to
Receive Payment.


 


Notwithstanding any other provision of the Indenture,
the right of any Holder of a Note to receive payment of principal of, and
premium, if any, and interest on the Note, on or after the respective due dates
expressed in the Note, or to bring suit for the enforcement of any such payment
on or after such respective dates, is absolute and unconditional and shall not
be impaired or affected without the consent of the Holder of the Note.


 


Section 9.11           The Trustee May File Proofs of Claim.


 


The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel),
the Noteholders and any other Secured Party (as applicable) allowed in any
judicial proceedings relative to any Co-Issuer (or any other obligor upon the
Notes), its creditors or its property, and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claim and any custodian in any such judicial proceeding
is 


 


94

















 


hereby authorized by each Noteholder and each other
Secured Party to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Noteholders or any other Secured Party, to pay the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 10.5.  To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 10.5
out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall be paid out of,
any and all distributions, dividends, money and other properties which the
Noteholders or any other Secured Party may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise.  Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Noteholder or any other Secured Party any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Noteholder or any other Secured Party, or to
authorize the Trustee to vote in respect of the claim of any Noteholder or any
other Secured Party in any such proceeding.


 


Section 9.12           Undertaking for Costs.


 


In any suit for the enforcement of any right or remedy
under the Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of any undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 9.12 does not apply to a suit by the
Trustee, a suit by a Noteholder pursuant to Section 9.10 or a suit
by Noteholders of more than 10% of the Aggregate Outstanding Principal Amount
of all Series of Notes.


 


Section 9.13           Restoration of Rights and Remedies.


 


If the Trustee, any Noteholder or any other Secured
Party has instituted any Proceeding to enforce any right or remedy under the
Indenture or any other Related Document and such Proceeding has been
discontinued or abandoned for any reason or has been determined adversely to
the Trustee or to such Noteholder or other Secured Party, then and in every
such case the Trustee and the Noteholders shall, subject to any determination
in such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee, the
Noteholders and the other Secured Parties shall continue as though no such
Proceeding had been instituted.


 


Section 9.14           Rights and Remedies Cumulative.


 


No right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Notes or any other Secured Party is
intended to be exclusive of any other 


 


95

















 


right or remedy, and every right or remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given under the Indenture or any other Related Document or now or
hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or
remedy under the Indenture or any other Related Document, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.


 


Section 9.15           Delay or Omission Not Waiver.


 


No delay or omission of the Trustee, the Control
Party, any Holder of any Note or any other Secured Party to exercise any right
or remedy accruing upon any potential Early Amortization Event, Early
Amortization Event, Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such potential Early Amortization Event,
Early Amortization Event, Default or Event of Default or an acquiescence
therein.  Every right and remedy given by
this Article IX or by law to the Trustee, the Control Party, the
Holders of Notes or any other Secured Party may be exercised from time to time
to the extent not inconsistent with the Indenture, and as often as may be
deemed expedient, by the Trustee, the Control Party, the Holders of Notes or
any other Secured Party, as the case may be.


 


Section 9.16           Waiver of Stay or Extension Laws.


 


Each Co-Issuer covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of the Indenture or any other Related
Document; and each Co-Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantages of any such law, and covenants that
it shall not hinder, delay or impede the execution of any power herein granted
to the Trustee, the Administrative Agent or the Control Party, but shall suffer
and permit the execution of every such power as though no such law had been
enacted.


 


ARTICLE X


 


THE TRUSTEE AND THE ADMINISTRATIVE AGENT


 


Section 10.1           Duties of the Trustee and the
Administrative Agent.


 


(a)           The duties of the Trustee and the
Administrative Agent shall be as follows:


 


(i)            Duties of the Trustee.  If an Event
of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by the Indenture and the other Related
Documents, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs; provided, however, that the Trustee shall have no
liability in connection with any action or inaction taken, or 


 


96

















 


not taken, by it upon the
deemed occurrence of an Event of Default, an Early Amortization Event or a
Master Manager Default of which a Trust Officer has not received written
notice; provided further, however, that the Trustee shall
have no liability in connection with any action or inaction due to the acts or
failure to act of the Control Party in connection with any Event of Default or
for acting or failing to act due to any direction or lack of direction from the
Control Party.  The preceding sentence
shall not have the effect of insulating the Trustee from liability arising out
of the Trustee’s negligence or willful misconduct.  The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of the Indenture, shall examine them to
determine whether they conform to the requirements of this Indenture; provided,
however, that the Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement opinion, report, document,
order or other instrument furnished by the Co-Issuers under the Indenture.


 


(ii)           Duties of the Administrative Agent. 
The Administrative Agent shall:


 


(A)          perform the following functions: (a) monitor each
of the Co-Issuers’, the Transaction 
Manager’s, the Master Manager’s, the Employee Company Manager’s and the
Replacement Manager’s compliance with its obligations under the Indenture
Documents and the Related Documents solely (i) by confirming that any
report, certificate or notice prepared by it pursuant to any Related Document
and received by the Administrative Agent is complete on its face, (ii) by
verifying the calculations included in the Weekly Manager’s Certificates,
Monthly Manager’s Certificates and Noteholders’ Statements, as set forth on Schedule
10.1(a); provided that in verifying such calculations the
Administrative Agent shall be permitted to base its calculations and conclusions
solely on the data supplied to it by the Co-Issuers, the Transaction  Manager, the Master Manager, the Employee
Company Manager and the Replacement Manager, as applicable, and (iii) by
confirming such other information as the Co-Issuers or the Control Party may
reasonably request; (b) to the extent the Administrative Agent fails to
receive any report, certificate or notice due to it under the Related
Documents, (I) notify any of the Co-Issuers, the Transaction  Manager, the Master Manager, the Employee
Company Manager and the Replacement Manager, as applicable, within one Business
Day (x) after the date that such report, certificate or notice was due or (y) if
the applicable Related Document does not specify a date certain when such
report, certificate or notice was due, after the date that the Administrative
Agent has Actual Knowledge of such report, certificate or notice having become
due, and (II) notify the Trustee of any such failure to receive any
applicable report, certificate or notice; (c) notify the Trustee of the
occurrence of any Early Amortization Event, Indenture Event of Default,
Transaction Manager Default, Master Manager Default or any other default under
the Related 


 


97

















 


Documents of which an
Authorized Officer of the Administrative Agent has Actual Knowledge; (d) carry
out any additional rights or duties specified under the Related Documents; and (e) forward
to the Trustee any report, certificate or notice received by the Administrative
Agent pursuant to any Related Document; and


 


(B)           act as the transition agent under the Replacement
Management Agreement and assist in identifying a successor Replacement Manager
in the event that the existing Replacement Manager resigns or is required to be
replaced pursuant to the Replacement Management Agreement (which successor
Replacement Manager shall be approved by the Control Party).


 


(b)           Except, with respect to the Trustee only,
during the occurrence and continuance of an Event of Default of which a Trust
Officer shall have Actual Knowledge:


 


(i)            Each of the Trustee and the Administrative Agent
undertakes to perform only those duties that are specifically set forth in the
Indenture or any other Related Document to which it is a party and no others,
neither the Trustee nor the Administrative Agent shall be liable except for the
performance of such duties and obligations as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into the
Indenture or any other Related Document against the Trustee or the
Administrative Agent; and


 


(ii)           In the absence of bad faith on its part, each of the
Trustee and the Administrative Agent may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee or the Administrative Agent,
as applicable, and conforming to the requirements of the Indenture and any
other applicable Related Document; provided, however, in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee or the Administrative
Agent, the Trustee or the Administrative Agent, as applicable, shall be under a
duty to examine such certificates or opinions to determine whether or not they
conform to the requirements of the Indenture and shall promptly notify the
Person delivering such certificates or opinions of any non-conformity.


 


(c)           The Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to act, or
its own willful misconduct, and the Administrative Agent may not be relieved
from liability from its own grossly negligent action, or its grossly negligent
failure to act, or its willful misconduct, except that:


 


(i)            This clause (c) does not limit the effect
of clause (b) of this Section 10.1.


 


98

















 


(ii)           Neither the Trustee nor the Administrative Agent shall
be liable in its individual capacity for any error of judgment made in good
faith by a Trust Officer or an Authorized Officer of the Administrative Agent,
unless it is proved that the Trustee was negligent or the Administrative Agent
was grossly negligent, as applicable, in ascertaining the pertinent facts.


 


(iii)          Neither the Trustee nor the Administrative Agent shall
be liable in its individual capacity with respect to any action it takes,
suffers or omits to take in good faith in accordance with a direction received
by it pursuant to the Indenture.


 


(iv)          Neither the Trustee nor the Administrative Agent shall
be charged with knowledge of any Default, Event of Default, potential Early
Amortization Event or Early Amortization Event or the commencement and
continuation of a Cash Trapping Period until such time as a Trust Officer or
Authorized Officer of the Administrative Agent shall have Actual Knowledge or
have received written notice thereof.  In
the absence of receipt of such notice, the Trustee or the Administrative Agent,
as applicable, may conclusively assume that no such event has occurred or is
continuing.


 


(d)           Notwithstanding anything to the contrary
contained in the Indenture or any of the other Related Documents, no provision
of the Indenture or the other Related Documents shall require either the Trustee
or the Administrative Agent to expend or risk its own funds or incur any
material liability (financial or otherwise) if there are reasonable grounds for
believing that the repayment of such funds is not reasonably assured to it by
the security afforded to it by the terms of the Indenture.  Each of the Trustee or the Administrative
Agent, as applicable, may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any risk, loss,
liability or expense.


 


(e)           In the event that the Paying Agent or the
Registrar shall fail to perform any obligation, duty or agreement in the manner
or on the day required to be performed by the Paying Agent or the Registrar, as
the case may be, under the Indenture, the Trustee shall be obligated as soon as
practicable upon a Trust Officer or Authorized Officer of the Administrative
Agent having Actual Knowledge thereof and receipt of appropriate records and
information, if any, to perform such obligation, duty or agreement in the
manner so required.


 


(f)            Subject to Section 10.3, all
moneys received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law or the
Indenture or any of the other Related Documents.


 


(g)           Whether or not therein expressly so
provided, every provision of the Indenture and the other Related Documents
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee or the Administrative Agent shall be subject to the provisions
of this Section 10.1.


 


99

















 


(h)           Neither the Trustee nor the
Administrative Agent shall be responsible for the existence, genuineness or
value of any of the Collateral or for the validity, perfection, priority or
enforceability of the Liens in any of the Collateral, whether impaired by
operation of law or by reason of any action or omission to act on its part
hereunder, except to the extent such action or omission constitutes negligence,
bad faith or willful misconduct on the part of the Trustee or gross negligence,
bad faith or willful misconduct on the part of the Administrative Agent, as
applicable, for the validity or sufficiency of the Collateral or any agreement
or assignment contained therein, for the validity of the title of the
Securitization Entities to the Collateral, for insuring the Collateral or for
the payment of Taxes, charges, assessments or Liens upon the Collateral or
otherwise as to the maintenance of the Collateral. Except as otherwise
expressly provided herein, neither the Trustee nor the Administrative Agent
shall have any duty to inquire as to the performance or observance of any of the
terms of the Indenture or the other Related Documents by the Securitization
Entities.


 


(i)            Neither the Trustee nor the
Administrative Agent shall be liable with respect to any action taken, suffered
or omitted to be taken by it in good faith in accordance with the Indenture and
any Related Document or at the direction of the Control Party, relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, under the Indenture.


 


(j)            Neither the Trustee nor the Administrative
Agent shall have any duty (i) to see to any recording, filing or
depositing of this Base Indenture or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest,
or to see to the maintenance of any such recordings or filing or depositing or
to any rerecording, refilling or redeposition of any thereof; provided, however,
the Trustee shall be obligated to take all necessary actions in connection with
any filings delivered by the Transaction Manager or the Co-Issuers as required
by the terms of the Indenture, (ii) to see to any insurance, (iii) except
as otherwise provided by Section 10.1(e), to see to the payment or
discharge of any tax, assessment or other governmental charge or any lien or
encumbrance of any kind or (iv) to confirm or verify the contents of any
reports or certificates of the Transaction Manager delivered to the Trustee
pursuant to this Base Indenture believed by the Trustee to be genuine and to
have been signed or presented by the proper party or parties.


 


(k)           Neither the Trustee nor the
Administrative Agent shall be personally liable for special, indirect,
consequential or punitive damages arising out of, in connection with or as a
result of the performance of its duties under the Indenture.


 


Section 10.2           Rights of the Trustee and the Administrative Agent. 
Except as otherwise provided by Section 10.1:


 


(a)           Each of the Trustee and the
Administrative Agent may conclusively rely and shall be fully protected in
acting or refraining from acting based upon any resolution, Officer’s
Certificate, Opinion of Counsel, certificate, instrument, report, consent,
order, document or other paper reasonably believed by it to be genuine and to
have been signed by or presented by the proper person.


 


100














 


(b)           Each of the Trustee and the
Administrative Agent may consult with counsel of its selection, and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.


 


(c)           Each of the Trustee and the
Administrative Agent may act through agents, custodians and nominees and shall
not be liable for any misconduct or negligence on the part of, or for the
supervision of, any such non-affiliated agent, custodian or nominee so long as
such agent, custodian or nominee is appointed with due care.


 


(d)           Neither the Trustee nor the
Administrative Agent shall be liable for any action it takes, suffers or omits
to take in the absence of negligence, in the case of the Trustee, or gross
negligence in the case of the Administrative Agent, which it believes to be
authorized or within the discretion or rights or powers conferred upon it by
the Indenture or the applicable Related Documents.


 


(e)           Neither the Trustee nor the
Administrative Agent shall be under any obligation to exercise any of the
rights or powers vested in it by this Base Indenture, any Series Supplement
or any other Related Document, or to institute, conduct or defend any
litigation hereunder or thereunder or in relation hereto or thereto, at the
request, order or direction of the Control Party, any of the Noteholders or any
other Secured Party, pursuant to the provisions of this Base Indenture or any Series Supplement,
unless the Trustee or the Administrative Agent, as applicable, shall have been
offered reasonable security or indemnity satisfactory to the Trustee or the
Administrative Agent, as applicable, against the costs, expenses and
liabilities which may be incurred therein or thereby.


 


(f)            Prior to the occurrence of an Event of
Default or Early Amortization Event, Neither the Trustee nor the Administrative
Agent shall be bound to make any investigation into the facts of matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing so to do by the Noteholders of at least 25% of the
aggregate Principal Amount of all then Outstanding Notes.  If either the Trustee or the Administrative
Agent is so requested or determines in its own discretion to make such further
inquiry or investigation into such facts or matters as it sees fit, the Trustee
or the Administrative Agent, as applicable, shall be entitled to examine the
books, records and premises of the Securitization Entities, personally or by
agent or attorney, at the sole cost of the Co-Issuers, and neither the Trustee
nor the Administrative Agent shall incur any liability by reason of such
inquiry or investigation.


 


(g)           The right of the Trustee or the
Administrative Agent, as applicable, to perform any discretionary act
enumerated in this Base Indenture shall not be construed as a duty, and neither
the Trustee nor the Administrative Agent, shall be liable in the absence of
negligence, in the case of the Trustee or gross negligence in the case of the
Administrative Agent, or willful misconduct for the performance of such act.


 


101

















 


Section 10.3           Individual Rights of the Trustee.


 


The Trustee in its individual or any other capacity
may become the owner or pledgee of Notes and may otherwise deal with the
Securitization Entities or an Affiliate of the Securitization Entities with the
same rights it would have if it were not Trustee.  Any Agent may do the same with like rights.


 


Section 10.4           Notice of Events of Default and Defaults.


 


If an Event of Default, a Default, an Early
Amortization Event or a potential Early Amortization Event occurs and is
continuing and if it is actually known to a Trust Officer, or written notice of
the existence thereof has been delivered to a Trust Officer, the Trustee shall
promptly provide the Noteholders, the Co-Issuers, any Variable Funding Administrative
Agent and each Rating Agency with notice of such Event of Default, Default,
Early Amortization Event or potential Early Amortization Event, to the extent
that the Notes of such Series are Book-Entry Notes, by telephone, e-mail
and facsimile and otherwise by first class mail.


 


Section 10.5           Compensation and Indemnity.


 


(a)           The Co-Issuers shall promptly pay to the
Trustee and the Administrative Agent from time to time compensation for its
acceptance of the Indenture and services hereunder and under the other Related
Documents to which the Trustee or the Administrative Agent, as applicable, is a
party as the Trustee and the Co-Issuers and the Administrative Agent and the
Co-Issuers shall from time to time agree in writing.  The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust.  The Co-Issuers shall reimburse each of the
Trustee and the Administrative Agent promptly upon request (with appropriate
evidence) for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services in accordance with
the provisions of the Indenture (including, without limitation, the Priority of
Payments).  Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee’s or the
Administrative Agent’s agents and outside counsel.  The Co-Issuers shall not be required to
reimburse any expense incurred by the Trustee or the Administrative Agent
through the Trustee’s own willful misconduct or negligence or the
Administrative Agent’s own willful misconduct or gross negligence.  When the Trustee or the Administrative Agent
incurs expenses or renders services after an Event of Default occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under the Bankruptcy Code.


 


(b)           The Co-Issuers shall jointly and
severally indemnify and hold harmless (i) the Trustee and any predecessor
Trustee, (ii) the Administrative Agent and any predecessor Administrative
Agent, and in each case their respective directors, officers, agents and
employees from and against any loss, liability, claim, expense (including
taxes, other than taxes based upon, measured by or determined by the income of
the Trustee and such predecessor Trustee or the Administrative Agent and such
predecessor Administrative Agent), damage or injury suffered or sustained by
reason of 


 


102

















 


any acts, omissions or alleged acts or omissions arising out of or in
connection with the activities of the Trustee and such predecessor Trustee or
of the Administrative Agent and such predecessor Administrative Agent pursuant
to this Base Indenture, any Series Supplement or any other Related
Documents to which the Trustee or the Administrative Agent is a party,
including but not limited to any judgment, award, settlement, reasonable
attorneys’ fees and other costs or expenses reasonably incurred in connection
with the defense of any actual or threatened action, proceeding, claim (whether
asserted by the Co-Issuers, the Control Party or any Noteholder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, or in connection with enforcing the provisions
of this Section 10.5(b); provided, however, that the
Co-Issuers shall not indemnify the Trustee, any predecessor Trustee, the
Administrative Agent, any predecessor Administrative Agent or their respective
directors, officers, employees or agents if such acts, omissions or alleged
acts or omissions constitute, willful misconduct, bad faith or negligence by
the Trustee and such predecessor Trustee or willful misconduct, bad faith or
gross negligence by the Administrative Agent and such predecessor Administrative
Agent, as the case may be.


 


(c)           The provisions of this Section 10.5
shall survive the termination of the Indenture and the resignation and removal
of the Trustee and the Administrative Agent.


 


Section 10.6           Replacement of the Trustee or the
Administrative Agent.


 


(a)           A resignation or removal of (i) the
Trustee and appointment of a successor Trustee or (ii) the Administrative
Agent and appointment of a successor Administrative Agent shall become
effective only upon the successor Trustee’s or successor Administrative Agent’s,
as applicable, acceptance of appointment as provided in this Section 10.6.


 


(b)           Each of the Trustee or the Administrative
Agent may, after giving thirty (30) days’ prior written notice to the
Co-Issuers, the Master Manager, the Transaction Manager, each Noteholder, each
Variable Funding Administrative Agent and each Rating Agency, resign at any
time from its office and be discharged from the trust hereby created.  The Control Party may remove the Trustee or
the Administrative Agent at any time by so notifying the Trustee or the
Administrative Agent, as applicable, and the Co-Issuers.  So long as no Event of Default has occurred
and is continuing, the Co-Issuers (with the Control Party’s prior written
consent) may remove the Trustee or the Administrative Agent at any time.  The Co-Issuers (with the Control Party’s
prior written consent) shall remove the Trustee or the Administrative Agent if:


 


(i)            the Trustee or the Administrative Agent, as
applicable, fails to comply with Section 10.8;


 


(ii)           the Trustee or the Administrative Agent, as
applicable, is adjudged bankrupt or insolvent or an order for relief is entered
with respect to the Trustee or the Administrative Agent, as applicable, under
the Bankruptcy Code;


 


103

















 


(iii)          a custodian or public officer takes charge of the
Trustee or the Administrative Agent, as applicable, or its property; or


 


(iv)          the Trustee or the Administrative Agent, as
applicable, becomes incapable of acting.


 


If the
Trustee or the Administrative Agent, as applicable, resigns or is removed or if
a vacancy exists in the office of the Trustee or the Administrative Agent for
any reason, the Co-Issuers shall promptly, with the prior written consent of
the Control Party appoint a successor Trustee or successor Administrative
Agent, as applicable. In any event, however, neither (i) the resignation
or removal of the Trustee or the Administrative Agent, as applicable, nor (ii) 
the appointment of a successor Trustee or successor Administrative Agent, as
applicable, shall be effective until a successor Trustee or successor
Administrative Agent has assumed the obligations of the Trustee or the
Administrative Agent, respectively, hereunder by delivering to the current
Trustee or current Administrative Agent, as applicable, and the Co-Issuers
written notice of its acceptance of such appointment. Within one year after the
successor Trustee or successor Administrative Agent takes office, the Control
Party may appoint a successor Trustee or successor Administrative Agent to
replace the successor Trustee or successor Administrative Agent appointed by
the Co-Issuers.


 


(c)           If a successor Trustee or successor
Administrative Agent does not take office within sixty (60) days after the
retiring Trustee or retiring Administrative Agent resigns or is removed, the
retiring Trustee or Administrative Agent, at the expense of the Co-Issuers, may
petition any court of competent jurisdiction for the appointment of a successor
Trustee or successor Administrative Agent.


 


(d)           If either the Trustee or the
Administrative Agent after written request by the Control Party or any
Noteholder fails to comply with Section 10.8, the Control Party or
such Noteholder may petition any court of competent jurisdiction for the
removal of the Trustee or the Administrative Agent and the appointment of a
successor Trustee or successor Administrative Agent.


 


(e)           A successor Trustee or successor
Administrative Agent shall deliver a written acceptance of its appointment to
the retiring Trustee or removed Trustee, or the retiring Administrative Agent
or removed Administrative Agent, and to the Co-Issuers.  Thereupon the resignation or removal of the
retiring Trustee or retiring Administrative Agent shall become effective, and
the successor Trustee or successor Administrative Agent shall have all the
rights, powers and duties of the Trustee or Administrative Agent under this
Base Indenture, any Series Supplement and any other Related Document to
which the Trustee or Administrative Agent is a party.  The successor Trustee or successor
Administrative Agent shall mail a notice of its succession to Noteholders and
each Variable Funding Administrative Agent. 
The retiring Trustee or retiring Administrative Agent shall promptly
transfer all property held by it as Trustee or Administrative Agent, as
applicable, to the successor Trustee or successor Administrative Agent, as
applicable; provided, however, that all sums owing to the
retiring Trustee or retiring Administrative Agent hereunder have been
paid.  Notwithstanding replacement 


 


104

















 


of the Trustee or Administrative Agent pursuant to this Section 10.6,
the Co-Issuers’ obligations under Section 10.5 shall continue for
the benefit of the retiring Trustee or retiring Administrative Agent.


 


Section 10.7           Successor Trustee or Successor
Administrative Agent by Merger, etc.


 


Subject to Section 10.8, if the Trustee or
Administrative Agent consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee or
successor Administrative Agent, as applicable; provided that written
notice of such consolidation, merger or conversion shall be provided to the
Co-Issuers, the Noteholders and each Variable Funding Administrative Agent; provided further
that the resulting or successor corporation is eligible to be a Trustee or
Administrative Agent under Section 10.8.


 


Section 10.8           Eligibility Disqualification.


 


(a)           There shall at all times be a Trustee and
Administrative Agent hereunder which shall (i) be a bank or trust company
organized and doing business under the laws of the United States of America or
of any state thereof authorized under such laws to exercise corporate trustee
power, (ii) be subject to supervision or examination by federal or state
authority, (iii) have a combined capital and surplus of at least
$250,000,000 as set forth in its most recent published annual report of
condition, and (iv) have a long-term unsecured debt rating of at least “A2”
by Moody’s, “A” by S&P and “A” by Fitch.


 


(b)           At any time the Trustee or the
Administrative Agent shall cease to satisfy the eligibility requirements of Section 10.8(a),
the Trustee or the Administrative Agent shall resign immediately in the manner
and with the effect specified in Section 10.6.


 


Section 10.9           Appointment of Co-Trustee or Separate
Trustee.


 


(a)           Notwithstanding any other provisions of
this Base Indenture, any Series Supplement or any other Related Document,
at any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Collateral may at the time be located,
the Trustee shall have the power upon notice to the Noteholders, the Rating
Agencies, the Co-Issuers, the Master Manager, the Transaction Manager and each
Variable Funding Administrative Agent and may execute and deliver all
instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of
the Collateral, and to vest in such Person or Persons, in such capacity and for
the benefit of the Noteholders and the other Secured Parties, such title to the
Collateral, or any part thereof, and, subject to the other provisions of this Section 10.9,
such powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable.  Any co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under 


 


105

















 


Section 10.8 or shall be otherwise acceptable to the Control Party.  No co-trustee shall be appointed without the
consent of the Control Party and the Co-Issuers unless such appointment is
required as a matter of state law or to enable the Trustee to perform its
functions hereunder.


 


(b)           Every separate trustee and co-trustee
shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:


 


(i)            The Notes of each Series shall be authenticated
and delivered solely by the Trustee or an authenticating agent appointed by the
Trustee;


 


(ii)           All rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed, the Trustee shall be incompetent or unqualified to perform,
such act or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Collateral or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;


 


(iii)          No trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder and such
appointment shall not, and shall not be deemed to, constitute any such  trustee or co-trustee as an agent of the
Trustee; and


 


(iv)          The Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.


 


(c)           Any notice, request or other writing
given to the Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of
them.  Every instrument appointing any
separate trustee or co-trustee shall refer to this Base Indenture and the
conditions of this Article X. 
Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Base Indenture,
any Series Supplement and any other Related Documents to which the Trustee
is a party, specifically including every provision of this Base Indenture, any Series Supplement,
or any other Related Document which the Trustee is a party relating to the
conduct of, affecting the liability of, or affording protection to, the Trustee.
Every such instrument shall be filed with the Trustee and a copy thereof given
to the Co-Issuers.


 


(d)           Any separate trustee or co-trustee may at
any time constitute the Trustee, its agent or attorney-in-fact with full power
and authority, to the extent not 


 


106

















 


prohibited by law, to do any lawful act under or in respect to this
Base Indenture, any Series Supplement or any other Related Document on its
behalf and in its name.  If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.


 


Section 10.10         Representations and Warranties of the
Trustee and the Administrative Agent.


 


Each of the Trustee and the Administrative Agent
represents and warrants to the Co-Issuers and the Noteholders that:


 


(a)           It is a national banking association,
organized, existing and in good standing under the laws of the United States;


 


(b)           It has full power, authority and right to
execute, deliver and perform this Base Indenture, any Series Supplement
issued concurrently with this Base Indenture and each other Related Document to
which it is a party and to authenticate the Notes, and has taken all necessary
action to authorize the execution, delivery and performance by it of this Base
Indenture, any Series Supplement issued concurrently with this Base Indenture
and any such other Related Document and to authenticate the Notes;


 


(c)           This Base Indenture and each other
Related Document to which it is a party has been duly executed and delivered by
the Trustee and the Administrative Agent, and is a legal, valid and binding
obligation of the Trustee and the Administrative Agent enforceable against the
Trustee and the Administrative Agent in accordance with its terms; and


 


(d)           It meets the requirements of eligibility
as a trustee or administrative agent, as the case may be, hereunder set forth
in Section 10.8.


 


Section 10.11         Trustee and Administrative Agent
Communications.


 


Notwithstanding anything
to the contrary herein, any and all communications (both text and attachments)
by or from the Trustee or the Administrative Agent that the Trustee or the
Administrative Agent, each in its sole discretion, deems to contain
confidential, proprietary, and/or sensitive information and sent by secure
electronic mail will be encrypted.  The
recipient of the email communication will be required to complete a one-time
registration process.


 


ARTICLE XI


 


DISCHARGE OF INDENTURE


 


Section 11.1           Termination of the Co-Issuers’
Obligations.


 


(a)           The Indenture shall cease to be of
further effect (except that (i) the Co-Issuers’ obligations under Section 10.5,
(ii) the Trustee’s and the Paying Agent’s 


 


107

















 


obligations under Sections 11.2 and 11.3 and (iii) the
Noteholders’ and the Trustee’s obligations under Section 13.13
shall survive) when all Outstanding Notes theretofore authenticated and issued
(other than destroyed, lost or stolen Notes which have been replaced or paid)
have been delivered to the Trustee for cancellation, the Co-Issuers have paid
all sums payable hereunder and under each other Indenture Document and all
commitments to extend credit under all Variable Funding Note Purchase
Agreements have been terminated.


 


(b)           In addition, except as may be provided to
the contrary in any Supplement, the Co-Issuers may terminate all of their
obligations under the Indenture and obtain the release of all Collateral if:


 


(i)            the Co-Issuers irrevocably deposit in trust with the
Trustee or at the option of the Trustee, with a trustee reasonably satisfactory
to the Control Party, the Trustee and the Co-Issuers under the terms of an
irrevocable trust agreement in form and substance satisfactory to the Trustee,
money or U.S. Government Obligations in an amount sufficient (including
scheduled interest payments on any such U.S. Government Obligations), in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay, when due, all principal, premium, if any, and interest on the
Notes to maturity, redemption or prepayment, as the case may be, and to pay all
other sums payable by them hereunder and under each other Indenture Document; provided,
however, that (A) the trustee of the irrevocable trust shall have
been irrevocably instructed to pay such money or the proceeds of such U.S.
Government Obligations to the Trustee and (B) the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of said principal and interest with respect
to the Notes and such other sums;


 


(ii)           the Co-Issuers deliver to the Trustee an Officer’s
Certificate of the Co-Issuers stating that all conditions precedent to
satisfaction and discharge of the Indenture have been complied with, and an
Opinion of Counsel to the same effect;


 


(iii)          the Co-Issuers deliver to the Trustee an Officer’s
Certificate of the Co-Issuers stating that no Early Amortization Event, Default
or Event of Default has occurred and is continuing on the date of such deposit;


 


(iv)          if such termination occurs during a different calendar
year than the Series Scheduled Maturity Date of the affected Notes, the
Co-Issuers deliver to the Trustee an Opinion of Counsel to the effect that such
termination of the Co-Issuers’ obligations shall not result in the recognition
of income or gain by the Noteholders at the time of such termination;


 


(v)           the Trustee shall have received Rating Agency
Confirmation Letters from each Rating Agency rating each Series of Notes
then Outstanding, with the applicable Rating Agency confirming the applicable
rating 


 


108

















 


on each such Series of
Notes Outstanding with respect to such deposit and termination of obligations
pursuant to this Section 11.1; and


 


(vi)          all commitments under all Variable Funding Note
Purchase Agreements have been terminated.


 


Upon
such termination, the Indenture shall cease to be of further effect (except as
provided in this Section 11.1), and the Trustee, on demand of the
Co-Issuers, shall execute proper instruments prepared by the Co-Issuers
acknowledging confirmation of and discharge under the Indenture.


 


(c)           In addition, except as may be provided to
the contrary in any Series Supplement, the Co-Issuers, solely in
connection with any optional or mandatory prepayment or redemption in full of
all Outstanding Notes, may terminate all of their obligations under the
Indenture and obtaining the release of all Collateral in respect thereof if:


 


(i)            the Co-Issuers irrevocably deposit in trust with the
Trustee, or a trustee reasonably satisfactory to the Control Party, the Trustee
and the Co-Issuers funds or Permitted Investments having scheduled interest
payments thereon sufficient to pay in full when due all principal, premium, if
any, and interest on the Notes to the applicable prepayment or redemption date,
as the case may be, and to pay all other sums payable by them hereunder and
under each other Indenture Document; provided, however, that the
Trustee shall have been irrevocably instructed to apply such funds to the
payment of such principal, premium, if any, and interest with respect to the
Notes and such other sums;


 


(ii)           the Co-Issuers deliver an irrevocable notice of
prepayment or redemption in full in accordance with the terms of the Indenture
with respect to all Outstanding Notes and the date of prepayment or redemption
as specified in such notice is not longer than twenty (20) Business Days after
the date of such notice;


 


(iii)          the Co-Issuers deliver to the Trustee an Officer’s
Certificate of each Co-Issuer stating that all conditions precedent to
satisfaction and discharge of the Indenture have been complied with, and an
Opinion of Counsel to the same effect; and


 


(iv)          all commitments under all Variable Funding Note
Purchase Agreements have been terminated and all amounts due and payable
hereunder and thereunder (including all Outstanding Principal Amounts hereunder
and all accrued interest and fees thereon) shall have been paid in full, in
each case on or before the date such deposit is made.


 


Upon such
termination, the Indenture shall cease to be of further effect (except as
provided in this Section 11.1), and the Trustee, on the demand and
at the expense of the Co-Issuers, shall execute proper instruments prepared by
the Co-Issuers acknowledging confirmation of and discharge under the Indenture.


 


109

















 


(d)           After the conditions set forth in Section 11.1(a) or
(c) have been met, or after such irrevocable deposit is made pursuant to Section 11.1(b) and
satisfaction of the other conditions set forth therein have been met, the
Trustee upon request shall acknowledge in writing the discharge of the
Securitization Entities’ obligations under the Indenture except for those
surviving obligations specified above and shall reassign (without recourse
upon, or any warranty whatsoever by, the Trustee) and deliver all Collateral
and documents then in the custody or possession of the Trustee promptly to the
applicable Co-Issuers and Securitization Entities at the expense of the
Co-Issuers.


 


(e)           In order to have money available on a
Payment Date to pay principal, and premium, if any, or interest on the Notes
and the other sums referred to above, the U.S. Government Obligations shall be
payable as to principal, and premium, if any, or interest at least one (1) Business
Day before such payment date in such amounts as will provide the necessary
money.  The U.S. Government Obligations
shall not be callable at the issuer’s option.


 


(f)            The representations and warranties set
forth in Article VII shall survive for so long as any Series of
Notes are Outstanding, and except pursuant to Section 9.7, may not
be waived with respect to any Series of Notes Outstanding.


 


(g)           The Co-Issuers and the Noteholders hereby
agree that, if any funds remain on deposit in the Collection Account after the
termination of the Indenture, such amounts shall be released by the Trustee and
paid to the Co-Issuers.


 


Section 11.2           Application of Trust Money.


 


The Trustee or a trustee satisfactory to the Control Party,
the Trustee and the Co-Issuers shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 11.1.  The Trustee shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent in
accordance with this Base Indenture and the other Related Documents to the
payment of principal, premium, if any, and interest on the Notes and the other
sums referred to above.  The provisions
of this Section 11.2 shall survive the expiration or earlier
termination of the Indenture.


 


Section 11.3           Repayment to the Co-Issuers.


 


(a)           The Trustee and the Paying Agent shall
promptly pay to the Co-Issuers upon written request any excess money or,
pursuant to Sections 2.10 and 2.14, return any Notes held by
them at any time.


 


(b)           Subject to Section 2.6(c),
the Trustee and the Paying Agent shall pay to the Co-Issuers upon written
request any money held by them for the payment of principal, premium or
interest that remains unclaimed for two years after the date upon which such
payment shall have become due.


 


(c)           The provisions of this Section 11.3
shall survive the expiration or earlier termination of the Indenture.


 


 


110














 


Section 11.4                Reinstatement.


 


If the Trustee is unable
to apply any funds received under this Article XI by reason of any
proceeding, order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Co-Issuers’
obligations under the Indenture or the other Indenture Documents and in respect
of the Notes shall be revived and reinstated as though no deposit had occurred,
until such time as the Trustee is permitted to apply all such funds or property
in accordance with this Article XI. 
If the Co-Issuers make any payment of principal, premium, interest or
commitment fees on any Notes or any other sums under the Indenture Documents
while such obligations have been reinstated, the Co-Issuers shall be subrogated
to the rights of the Noteholders or Note Owners or other Secured Parties who
received such funds or property from the Trustee to receive such payment in
respect of the Notes.


 


ARTICLE XII



AMENDMENTS


 


Section 12.1                Without Consent of the Noteholders.


 


(a)                                  Without the consent of any Noteholder or
any other Secured Party, the Co-Issuers, the Administrative Agent and the
Trustee, at any time and from time to time, may enter into one or more
Supplements hereto, in form satisfactory to each party, for any of the
following purposes:


 


(i)                                     to create a new Series of Notes;


 


(ii)                                  to add to the covenants of the
Securitization Entities for the benefit of any Noteholders or any other Secured
Parties (and if such covenants are to be for the benefit of less than all Series of
Notes, stating that such covenants are expressly being included solely for the
benefit of such Series) or to surrender for the benefit of the Noteholders and
the other Secured Parties any right or power herein conferred upon the
Securitization Entities; provided, however, that no
Co-Issuer shall pursuant to this Section 12.1(a)(ii) surrender
any right or power it has under the Related Documents (other than this Base
Indenture);


 


(iii)                               to mortgage, pledge, convey, assign and
transfer to the Trustee any property or assets as security for the Obligations
and to specify the terms and conditions upon which such property or assets are
to be held and dealt with by the Trustee and to set forth such other provisions
in respect thereof as may be required by the Indenture or as may, consistent
with the provisions of the Indenture, be deemed appropriate by the Co-Issuers
and the Trustee, or to correct or amplify the description of any such property
or assets at any time so mortgaged, pledged, conveyed and transferred to the
Trustee;


 


111

















 


(iv)                              to cure any ambiguity, defect or
inconsistency or to correct or supplement any provision contained herein or in
any Supplement or in any Notes issued hereunder or any other Indenture Document
to which the Trustee is a party;


 


(v)                                 to provide for uncertificated Notes in
addition to certificated Notes;


 


(vi)                              to add to or change any of the provisions
of the Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Notes in bearer form, registrable or not registrable as to
principal, and with or without interest coupons;


 


(vii)                           to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee with respect to the
Notes of one or more Series and to add to or change any of the provisions
of the Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee;


 


(viii)                        to correct or supplement any provision
herein or in any Supplement or any other Indenture Document to which the
Trustee is a party that may be inconsistent with any other provision herein or
therein or to make consistent any other provisions with respect to matters or
questions arising under this Base Indenture or in any Supplement or any other
Indenture Document to which the Trustee is a party; or


 


(ix)                                to conform any provision of this Base
Indenture to any provision of the “Description of the Indenture” or “Description
of the Offered Notes” set forth in the Offering Memorandum;


 


provided, however, that, as evidenced by an
Officer’s Certificate delivered to the Trustee and the Administrative Agent,
such action shall not adversely affect in any material respect the interests of
any Noteholder, any Note Owner or any other Secured Party and that all
conditions precedent to the effectiveness of such action have been met.


 


(b)                                 Upon the request of the Co-Issuers and
receipt by the Trustee and the Administrative Agent of the documents described
in Section 2.2, the Trustee shall join with the Co-Issuers in the
execution of any Series Supplement authorized or permitted by the terms of
this Base Indenture and shall make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into such Series Supplement which affects its own
rights, duties or immunities under this Base Indenture or otherwise.


 


Section 12.2                With Consent of the Noteholders.


 


(a)                                  Except as provided in Section 12.1,
the provisions of this Base Indenture, any Supplement and any other Indenture
Document to which the Trustee is a party (unless otherwise provided in such
Supplement) may from time to time be 


 


112

















 


amended, modified or waived, if such amendment, modification or waiver
is in writing in a Supplement and consented to in writing by the Control
Party.  Notwithstanding the foregoing:


 


(i)                                     any amendment, waiver or other
modification that would reduce the percentage of the Aggregate Outstanding
Principal Amount or the Outstanding Principal Amount of any Series of
Notes, the consent of the Noteholders of which is required for any Supplement
under this Section 12.2 or the consent of the Noteholders of which
is required for any waiver of compliance with the provisions of the Indenture
or any other Related Document or defaults hereunder or thereunder and their
consequences provided for in herein or therein or for any other action
hereunder or thereunder shall require the consent of the Control Party and each
affected Noteholder;


 


(ii)                                  any amendment, waiver or other
modification that would permit the creation of any Lien ranking prior to or on
a parity with the Lien created by the Indenture or any other Related Documents
with respect to any material part of the Collateral or except as otherwise
permitted by the Related Documents, terminate the Lien created by the Indenture
or any other Related Documents on any material portion of the Collateral at any
time subject thereto (except as provided by the Indenture Documents) or deprive
any Secured Party of any material portion of the security provided by the Lien
created by the Indenture or any other Related Documents shall require the
consent of the Control Party, each affected Noteholder and each other affected
Secured Party;


 


(iii)                               any amendment, waiver or other
modification that would (A) extend the due date for, or reduce the amount
of any scheduled repayment or prepayment of principal of, premium, if any, or
interest on any Note and the other Obligations (or reduce the principal amount
of, premium, if any, or rate of interest on any Note and the other
Obligations); (B) affect adversely the interests, rights or obligations of
any Noteholder individually in comparison to any other Noteholder holding the
same Series and Class of Notes; (C) change the provisions of the
Priority of Payments; (D) change any place of payment where, or the coin
or currency in which, any Notes and the other Obligations or the interest
thereon is payable; (E) impair the right to institute suit for the
enforcement of the provisions of the Indenture requiring the application of
funds available therefor, as provided in Article V, to the payment
of any such amount due on the Notes and the other Obligations owing to
Noteholders on or after the respective due dates thereof, or (F) amend,
waive or otherwise modify this Section 12.2, shall require the
consent of the Control Party, each affected Noteholder and each other affected
Secured Party;


 


(iv)                              subject to the ability of the Control
Party to waive certain events as set forth in Section 9.7, any
amendment or other modification of the specific language of the following
definitions:  “Default,” “Event of
Default” or “Early Amortization Event” (as defined in this Base Indenture or
any applicable Series Supplement) will require the consent of the Control
Party, and the Rating 


 


113

















 


Agency Condition shall
have been satisfied with respect to such amendment or modification; and


 


(v)                                 any amendment, waiver or other
modification that would change the time periods with respect to any requirement
to deliver to Noteholders notice with respect to any repayment, prepayment,
redemption or election of any Extension Period shall require the consent of the
Control Party and each affected Noteholder.


 


(b)                                 No failure or delay on the part of any
Noteholder, the Trustee or any other Secured Party in exercising any power or
right under the Indenture or any other Related Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power or
right preclude any other or further exercise thereof or the exercise of any
other power or right.


 


(c)                                  Unless each Noteholder of each Series and
Class of Notes then Outstanding consents, the express requirement, in any
provision hereof, that Rating Agency Confirmation Letters be obtained to
confirm the applicable ratings be satisfied as a condition to the taking of a
specified action, shall not be amended, modified or waived by the parties
hereto without satisfying such requirement.


 


Section 12.3                Supplements.


 


Each amendment or other
modification to the Indenture or the Notes shall be set forth in a Supplement,
a copy of which shall be delivered to the Rating Agencies by the
Co-Issuers.  The initial effectiveness of
each Supplement shall be subject to the delivery to the Trustee and the
Administrative Agent of an Opinion of Counsel that such Supplement is
authorized or permitted by this Base Indenture and the conditions precedent set
forth herein with respect thereto have been satisfied.  In addition to the manner provided in Sections 12.1
and 12.2, each Series Supplement may be amended as provided in such
Series Supplement.


 


Section 12.4                Revocation and Effect of Consents.


 


Until an amendment or
waiver becomes effective, a consent to it by a Noteholder of a Note is a
continuing consent by the Noteholder and every subsequent Noteholder of a Note
or portion of a Note that evidences the same debt as the consenting Noteholder’s
Note, even if notation of the consent is not made on any Note.  Any such Noteholder or subsequent Noteholder,
however, may revoke the consent as to his Note or portion of a Note if the
Trustee receives written notice of revocation before the date the amendment or
waiver becomes effective.  An amendment
or waiver becomes effective in accordance with its terms and thereafter binds
every Noteholder.  The Co-Issuers may fix
a record date for determining which Noteholders must consent to such amendment
or waiver.


 


114

















 


Section 12.5                Notation on or Exchange of Notes.


 


The Trustee may place an
appropriate notation about an amendment or waiver on any Note thereafter
authenticated.  The Co-Issuers, in
exchange for all Notes, may issue and the Trustee shall authenticate new Notes
that reflect the amendment or waiver. 
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment or waiver.


 


Section 12.6                The Trustee to Sign Amendments, etc.


 


The Trustee shall sign
any Supplement authorized pursuant to this Article XII if the
Supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee.  If it does,
the Trustee may, but need not, sign it. 
In signing such Supplement, the Trustee shall be entitled to receive, if
requested, an indemnity reasonably satisfactory to it and to receive and,
subject to Section 10.1, shall be fully protected in relying upon,
an Officer’s Certificate of the Co-Issuers and an Opinion of Counsel as
conclusive evidence that such Supplement is authorized or permitted by this
Base Indenture and that all conditions precedent have been satisfied, and that
it will be valid and binding upon the Co-Issuers in accordance with its terms.


 


ARTICLE XIII


 


MISCELLANEOUS


 


Section 13.1                Notices.


 


(a)                                  Any notice or communication by the
Co-Issuers, the Master Manager or the Trustee to any other party hereto shall
be in writing and delivered in person or mailed by first-class mail (registered
or certified, return receipt requested) facsimile or overnight air courier
guaranteeing next day delivery, to such other party’s address:


 


If to the Master Issuer:


 


NuCO2 Funding LLC

c/o NuCO2 Inc.

2800 S.E. Market Place

Stuart, Florida 34997

Attention:  General Counsel

Facsimile:  (772) 221-1690


 


115

















 


If to the Contract Holder:


 


NuCO2 LLC

c/o NuCO2 Inc.

2800 S.E. Market Place

Stuart, Florida 34997

Attention:  General Counsel

Facsimile:  (772) 221-1690


 


If to the Equipment Holder:


 


NuCO2 Supply LLC

c/o NuCO2 Inc.

2800 S.E. Market Place

Stuart, Florida 34997

Attention:  General Counsel

Facsimile:  (772) 221-1690


 


If to the IP Holder:


 


NuCO2 IP LLC

c/o NuCO2 Inc.

2800 S.E. Market Place

Stuart, Florida 34997

Attention:  General Counsel

Facsimile:  (772) 221-1690


 


If to any Co-Issuer with a copy to:


 


Aurora Capital Group

10877 Wilshire Blvd., Suite 2100

Los Angeles, CA 90024

Attention: Timothy J. Hart

Facsimile: (310) 824-2791


 


If to the Master Manager:


 


NuCO2 Inc.

2800 S.E. Market Place

Stuart, Florida 34997

Attention:  General Counsel

Facsimile:  (772) 221-1690


 


116

















 


If to the Master Manager with a copy to:


 


Aurora Capital Group

10877 Wilshire Blvd., Suite 2100

Los Angeles, CA 90024

Attention: Timothy J. Hart

Facsimile: (310) 824-2791


 


If to the Trustee and/or the Registrar

and/or the Paying Agent:


 


U.S. Bank National Association

EP-MN-WS3D

60 Livingston Avenue

St. Paul, MN 55107

Attention:  Structured Finance/NuCO2

Facsimile:  (866) 831-7910


 


If to the Administrative Agent:


 


U.S. Bank National Association

1310 Madrid Street, Suite 103

Marshall, MN 56258

Attention:  Joe Andries/NuCO2


 


If to 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


 


with a copy of all notices pertaining to other
indebtedness:


 


Moody’s Investors Service, Inc.

7 World Trade Center, 250 Greenwich Street, 25th Floor

New York, NY 10007

Attention:  Asset Finance Group – Team
Managing Director


 


117

















 


If to Fitch:


 


Fitch Ratings

ABS Surveillance – New Assets

70 W. Madison, Suite 1100

Chicago, IL 60602


 


 


If to an Enhancement Provider or an Interest Rate
Hedge Provider:
At the address provided in the applicable Enhancement Agreement or the
applicable Interest Rate Hedge Agreement.


 


(b)                                 The Co-Issuers or the Trustee by notice
to each other party may designate additional or different addresses for
subsequent notices or communications; provided, however, the
Co-Issuers may not at any time designate more than a total of three (3) addresses
to which notices must be sent in order to be effective.


 


(c)                                  Any notice shall be deemed delivered on
the date of delivery of such notice if by e-mail, upon telephonic confirmation
of receipt.


 


(d)                                 Notwithstanding any provisions of the
Indenture to the contrary, the Trustee shall have no liability based upon or
arising from the failure to receive any notice required by or relating to the
Indenture, the Notes or any other Related Document.


 


(e)                                  If any Co-Issuer delivers a notice or
communication to Noteholders, it shall deliver a copy to the Trustee at the
same time.


 


(f)                                    Where the Indenture provides for notice to
Noteholders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if sent in writing and mailed, first-class
postage prepaid, to each Noteholder affected by such event, at its address as
it appears in the Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed (if any) for the giving of such
notice.  In any case where notice to a
Noteholder is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Noteholder shall affect the
sufficiency of such notice with respect to other Noteholders, and any notice
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given.  Where the Indenture
provides for notice in any manner, such notice may be waived in writing by any
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice.  Waivers of notice by Noteholders shall be
filed with the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.  In the case by reason of the suspension of
regular mail service or by reason of any other cause it shall be impracticable
to give such notice by mail, then such notification as shall be made that is
satisfactory to the Trustee shall constitute a sufficient notification for
every purpose hereunder.


 


118

















 


Section 13.2                Communication by Noteholders With Other Noteholders.


 


Noteholders may
communicate with other Noteholders with respect to their rights under the
Indenture or the Notes.


 


Section 13.3                Certificate and Opinion as to Conditions Precedent.


 


Upon any request or
application by the Co-Issuers to the Trustee, the Administrative Agent or the
Noteholders to take any action under the Indenture or any other Related
Document (other than in respect of the issuance of a new Series of Notes
in accordance with Section 2.2 hereof), the Co-Issuers to the
extent requested by the Trustee or the Administrative Agent shall furnish to
the Trustee and the Administrative Agent (a) an Officer’s Certificate of
the Co-Issuers in form and substance reasonably satisfactory to the Trustee and
the Administrative Agent (which shall include the statements set forth in Section 13.4)
stating that all conditions precedent and covenants, if any, provided for in
the Indenture or such other Related Documents relating to the proposed action
have been complied with and (b) an Opinion of Counsel confirming the
same.  Such Opinion of Counsel shall be
at the expense of the Co-Issuers.


 


Section 13.4                Statements Required in Certificate.


 


Each certificate with
respect to compliance with a condition or covenant provided for in the
Indenture or any other Related Document shall include:


 


(a)                                  a statement that the Person giving such
certificate has read such covenant or condition;


 


(b)                                 a brief statement as to the nature and
scope of the examination or investigation upon which the statements contained
in such certificate are based;


 


(c)                                  a statement that, in the opinion of such
Person, he has made such examination or investigation as is necessary to enable
him to reach an informed opinion as to whether or not such covenant or
condition has been complied with; and


 


(d)                                 a statement as to whether or not such
condition or covenant has been complied with.


 


Section 13.5                Rules by the Trustee.


 


The Trustee may make
reasonable rules for action by or at a meeting of Noteholders.


 


Section 13.6                Benefits of Indenture.


 


Except as set forth in a Series Supplement,
nothing in this Base Indenture or in the Notes, expressed or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder and the Holders and the other Secured Parties, any benefit or any
legal or equitable right, remedy or claim under the Indenture.


 


119

















 


Section 13.7                Payment on Business Day.


 


In any case where any
Payment Date, redemption date or maturity date of any Note shall not be a
Business Day, then (notwithstanding any other provision of the Indenture)
payment of interest or principal (and premium, if any), as the case may be,
need not be made on such date but may be made on the next succeeding Business
Day with the same force and effect as if made on the Payment Date, redemption
date or maturity date; provided, however, that no interest
shall accrue for the period from and after such Payment Date, redemption date
or maturity date, as the case may be.


 


Section 13.8                Governing Law.


 


THIS BASE INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN
SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK).


 


Section 13.9                Successors.


 


All agreements of each of
the Co-Issuers in the Indenture, the Notes and each other Related Document to
which it is a party shall bind its successors and assigns; provided, however,
no Co-Issuer may assign its obligations or rights under the Indenture or any
Related Document, except with the written consent of the Control Party.  All agreements of the Trustee in the
Indenture shall bind its successors.


 


Section 13.10          Severability.


 


In case any provision in
the Indenture, the Notes or any other Related Document shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.


 


Section 13.11          Counterpart Originals.


 


The parties may sign any
number of copies of this Base Indenture. 
Each signed copy shall be an original, but all of them together
represent the same agreement.


 


Section 13.12          Table of Contents, Headings, etc.


 


The Table of Contents and
headings of the Articles and Sections of the Indenture have been inserted
for convenience of reference only, are not to be considered a part hereof, and
shall in no way modify or restrict any of the terms or provisions hereof.


 


120














 


Section 13.13          No Bankruptcy Petition Against the Securitization
Entities.


 


Each of the Noteholders
by its acceptance of a Note hereunder, the Trustee and the other Secured
Parties hereby covenants and agrees that, prior to the date which is one year
and one day after the payment in full of all amounts due to all Noteholders, it
shall not institute against, or join with any other Person in instituting
against, any Securitization Entity any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings, under any federal
or state bankruptcy or similar law; provided, however, that
nothing in this Section 13.13 shall constitute a waiver of any
right to indemnification, reimbursement or other payment from the
Securitization Entities pursuant to the Indenture or any other Related
Document. In the event that any such Noteholder or Secured Party or the Trustee
takes action in violation of this Section 13.13, each affected
Securitization Entity shall file or cause to be filed an answer with the
bankruptcy court or otherwise properly contesting the filing of such a petition
by any such Noteholder or Secured Party or the Trustee against such
Securitization Entity or the commencement of such action and raising the
defense that such Noteholder or Secured Party or the Trustee has agreed in
writing not to take such action and should be estopped and precluded therefrom
and such other defenses, if any, as its counsel advises that it may assert. The
provisions of this Section 13.13 shall survive the termination of
the Indenture and the resignation or removal of the Trustee.  Nothing contained herein shall preclude
participation by any Noteholder or any other Secured Party or the Trustee in
the assertion or defense of its claims in any such proceeding involving any
Securitization Entity.


 


Section 13.14          Recording of Indenture.


 


If the Indenture is
subject to recording in any appropriate public recording offices, such
recording is to be effected by the Co-Issuers and at their expense accompanied
by an Opinion of Counsel (which may be counsel to the Co-Issuers, the Trustee
or any other counsel reasonably acceptable to the Trustee) to the effect that
such recording is necessary either for the protection of the Noteholders, the
other Secured Party or any other Person secured hereunder or for the
enforcement of any right or remedy granted to the Trustee under the Indenture.


 


Section 13.15          Waiver of Jury Trial.


 


EACH OF THE CO-ISSUERS
AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS BASE INDENTURE, THE NOTES, THE OTHER RELATED
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.


 


121

















 


Section 13.16          Waivers by the Co-Issuers.


 


(a)                                  To the extent that any Co-Issuer is or is
deemed to be a guarantor or surety of another Co-Issuer under this Indenture or
under any Related Document (in such capacity, a “Guarantor”), the
liability of each Co-Issuer as a Guarantor under this Indenture and the Related
Documents shall be irrevocable, absolute and unconditional irrespective of, and
each Co-Issuer hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following:


 


(i)                                     any lack of validity or enforceability of
any Related Document or any agreement or instrument relating thereto;


 


(ii)                                  any change in the time, manner or place
of payment of, or in any other term of, all or any of the Obligations of such
other Co-Issuer (“Guaranteed Obligations”) or any other Obligations of
any other Co-Issuer under or in respect of the Related Documents, or any other
amendment or waiver of or any consent to departure from any Related Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to any other Co-Issuer or any
of its Subsidiaries or otherwise;


 


(iii)                               any taking, exchange, release or
non-perfection of any Collateral or any other collateral, or any taking,
release or amendment or waiver of, or consent to departure from, any other
guaranty, for all or any of the Guaranteed Obligations;


 


(iv)                              any manner of application of Collateral
or any other collateral, or proceeds thereof, to all or any of the Guaranteed
Obligations, or any manner of sale or other disposition of any Collateral or
any other collateral for all or any of the Guaranteed Obligations or any other
Obligations of any other Co-Issuer under the Related Documents or any other
assets of any other Co-Issuer or any of its Subsidiaries;


 


(v)                                 any change, restructuring or termination
of the corporate structure or existence of any other Co-Issuer or any of its
Subsidiaries;


 


(vi)                              any failure of any Secured Party to
disclose to any Co-Issuer any information relating to the business, condition
(financial or otherwise), operations, performance, properties or prospects of
any other Co-Issuer now or hereafter known to such Secured Party (and any duty
on the part of the Secured Parties to disclose such information is hereby
waived);


 


(vii)                           the failure of any other Person to
execute or deliver any Related Document or any other guaranty or agreement or
the release or reduction of liability of any Guarantor or other guarantor or
surety with respect to the Guaranteed Obligations; or


 


122

















 


(viii)                        any other circumstance (including,
without limitation, any statute of limitations) or any existence of or reliance
on any representation by any Secured Party that might otherwise constitute a
defense available to, or a discharge of, any other Co-Issuer or any other
guarantor or surety.


 


The foregoing provisions of this Section 13.16(a) shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise
be returned by any Secured Party or any other Person upon the insolvency,
bankruptcy or reorganization of any Co-Issuer or otherwise, all as though such
payment had not been made.


 


(b)                                 Each Co-Issuer in its capacity as a
Guarantor (to the extent applicable) hereby unconditionally and irrevocably
waives:


 


(i)                                     promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and any requirement that any Secured Party
protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against any other Co-Issuer or any other
Person or any Collateral.


 


(ii)                                  any right to revoke this guaranty and
acknowledges that this guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.


 


(iii)                               (x) any defense arising by reason of
any claim or defense based upon an election of remedies by any Secured Party
that in any manner impairs, reduces, releases or otherwise adversely affects
the subrogation, reimbursement, exoneration, contribution or indemnification
rights of such Guarantor or other rights of such Guarantor to proceed against
any of the other Co-Issuers, any other guarantor or any other Person or any
Collateral and (y) any defense based on any right of set-off or
counterclaim against or in respect of the Obligations of such Guarantor
hereunder.


 


(iv)                              any duty on the part of any Secured Party
to disclose to such Guarantor any matter, fact or thing relating to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any other Co-Issuer or any of its Subsidiaries now
or hereafter known by such Secured Party.


 


(c)                                  Each Co-Issuer in its capacity as a
Guarantor acknowledges that (x) the Trustee may, without notice to or
demand upon such Guarantor and without affecting the liability of such
Guarantor under the Related Documents, foreclose under any mortgage by
nonjudicial sale, and each Guarantor hereby waives any defense to the recovery
by the Trustee and the other Secured Parties against such Guarantor of any
deficiency after such nonjudicial sale and any defense or benefits that may be
afforded by applicable law and (y) it will receive substantial direct and
indirect benefits from the 


 


123

















 


financing arrangements contemplated by the Related Documents and that
the waivers set forth in Sections 13.16(a) and 13.16(b) are
knowingly made in contemplation of such benefits.


 


Section 13.17          Submission to Jurisdiction; Waivers.


 


Each of the Co-Issuers
and the Trustee hereby irrevocably and unconditionally:


 


(a)                                  submits for itself and its property in
any legal action or proceeding relating to the Indenture and the other Related
Documents to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States for the
Southern District of New York, and appellate courts from any thereof;


 


(b)                                 consents that any such action or
proceeding may be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;


 


(c)                                  agrees that service of process in any
such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to the Co-Issuers or the Trustee, as the case may be, at its
address set forth in Section 13.1 or at such other address of which
the Trustee shall have been notified pursuant thereto;


 


(d)                                 agrees that nothing herein shall affect
the right to effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction; and


 


(e)                                  waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal
action or proceeding referred to in this Section 13.17 any special,
exemplary, punitive or consequential damages.


 


[Signature Pages Follow]


 


124

















 


IN WITNESS WHEREOF, each
of the Co-Issuers and the Trustee have caused this Base Indenture to be duly
executed by its respective duly authorized signatory as of the day and year
first written above.


 


	
   

  	
  NuCO2 Funding LLC,
  as Co-Issuer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NuCO2 Inc., its
  Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Eric M.
  Wechsler

  
	
   

  	
   

  	
   

  	
  Name: Eric M.
  Wechsler

  
	
   

  	
   

  	
   

  	
  Title:  General Counsel

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NuCO2 LLC, as Co-Issuer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NuCO2 Funding LLC,
  its Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Inc., its
  Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Eric M.
  Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Name: Eric M.
  Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Title:  General Counsel

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NuCO2 IP LLC, as Co-Issuer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NuCO2 Funding LLC,
  its Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Inc., its
  Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Eric M.
  Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Name: Eric M.
  Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Title:  General Counsel

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NuCO2 SUPPLY LLC, as Co-Issuer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NuCO2 Funding LLC,
  its Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  NuCO2 Inc., its
  Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Eric M.
  Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Name: Eric M.
  Wechsler

  
	
   

  	
   

  	
   

  	
   

  	
  Title:
  General Counsel 

  
						



 

















 


	
   

  	
  U.S. Bank National Association, not in its
  individual capacity but solely in its capacity as Trustee, Administrative Agent
  and as Securities Intermediary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Edward F. Kachinski

  
	
   

  	
   

  	
  Name:
   Edward F. Kachinski

  
	
   

  	
   

  	
  Title:  Senior Vice President

  



 

















 


ANNEX A


 


BASE
INDENTURE DEFINITIONS LIST


 


“1933
Act” means the Securities Act of 1933, as amended.


 


“Account
Agreement” means each agreement governing the establishment and maintenance
of the Concentration Account or any other Base Indenture Account or Series Account
to the extent that any such account is not held at the Trustee.


 


“Account
Control Agreement” means each control agreement pursuant to which the
Trustee is granted the right to control deposits and withdrawals from, or
otherwise to give instructions or entitlement orders in respect of, a deposit
and/or securities account, including, without limitation, with respect to the
Concentration Account and the other Securitization Entity Accounts.


 


“Actual
Knowledge” means the actual knowledge of (a) the members of the
Leadership Team, (b) any manager or director (as applicable) of the
relevant Securitization Entity who is also a director or an officer of NuCO2, (c) an Authorized
Officer of NuCO2, the Employee
Company or any Co-Issuer or other Securitization Entity who is directly
responsible for managing or servicing the assets of the Co-Issuer or other
Securitization Entity or for administering the transactions relevant to such
event or (d) an Authorized Officer of the Administrative Agent or a Trust
Officer of the Trustee, as the case may be, responsible for administering the
transactions relevant to such event.


 


“Additional
Co-Issuer” means any entity that, after the Closing Date, becomes a “Co-Issuer”
pursuant to Section 8.34 of the Base Indenture.


 


“Additional
Co-Issuer Operating Agreement” means, with respect to any Additional
Co-Issuer, the certificate of incorporation, the operating agreement or such
similar document of such Additional Co-Issuer depending on the form of such
entity.


 


“Additional
Contract Holder” means any Additional Securitization Entity that, after the
Closing Date, is designated as a “Contract Holder” pursuant to Section 8.34
of the Base Indenture.


 


“Additional
Equipment Holder Operating Expenses” means, with respect to a Payment Date,
an amount equal to the excess, if any, of (a) the Equipment Holder’s
actual aggregate operating expenses for the related Monthly Collection Period
as evidenced by the Monthly Manager’s Certificate, over (b) the
aggregate Equipment Holder Operating Expense Fees transferred into the
Equipment Holder Operating Account during such Monthly Collection Period.


 


“Additional
IP Holder” means any entity that, after the Closing Date, is designated as
an “IP Holder” pursuant to Section 8.34 of the Base Indenture.


 

















 


“Additional
Notes” means any notes the
Co-Issuers may from time to time subsequent to the Closing Date issue pursuant
to Section 2.2 of the Base Indenture.


 


“Additional
Prepayment Amount” means the aggregate and accrued (A) Insurance
Proceeds Amount, if any, (B) Asset Disposition Prepayment Amount, if any, (C) Indemnification
Amount, if any, and (D) Excess CAPEX Amounts, if any, in each case with
respect to any Payment Date and all prior Payment Dates.


 


“Additional
Securitization Entity” means any entity that becomes a direct or indirect
wholly-owned Subsidiary of the Master Issuer or any other Securitization Entity
after the Closing Date in accordance with and as permitted under the Related
Documents and is designated by the Co-Issuers as a “Securitization Entity”
pursuant to Section 8.34 of the Base Indenture.


 


“Additional
Securitization Entity Operating Agreement” means, with respect to any
Additional Securitization Entity at any time, the limited liability company
agreement, certificate of formation or similar agreement of such entity in
effect at such time.


 


“Additional
Senior Note Prepayment Amount” is the sum of (x) the lesser of (A) the
Outstanding Principal Amount of the Series 2008-1 Class A-1 Notes and
(B) the ratio achieved by dividing (I) the Additional
Prepayment Amount, by (II) the sum of (a) one and (b) the Series 2008-1
Class A-1 Note Make-Whole Mandatory Prepayment Rate, and (y) if the Series 2008-1
Class A-1 Notes are paid in full after taking into account amounts
distributed in accordance with clause (x) above, then the lesser of (A) the
Outstanding Principal Amount of the Series 2008-1 Class A-2 Notes (as
defined in the Series 2008-1 Supplement) and the Series 2008-1 Class A-3
Notes (as defined in the Series 2008-1 Supplement) and (B) any
remaining Additional Prepayment Amount after paying the Series 2008-1 Class A-1
Notes in full.


 


“Additional
Subordinated Note Prepayment Amount” is the lesser of (A) the
Outstanding Principal Amount of the Series 2008-1 Class B-1 Notes and
(B) the ratio achieved by dividing (I) any Additional
Prepayment Amount remaining after giving effect to the prepayment set forth in clause
tenth of the Priority of Payments, if any, by (II) the sum of (a) one
and (b) the Series 2008-1 Class B-1 Note Make-Whole Mandatory
Prepayment Rate.


 


“Adjusted
Customer Collections” means, for a Weekly Allocation Date, the Customer
Collections deposited to the Concentration Account during the preceding Weekly
Collection Period minus the sum of (i) any Sales Tax Reimbursements
and any Property Tax Reimbursements due to the Equipment Holder on such Weekly
Allocation Date and (ii) the Customer Deposits deposited to the
Concentration Account during the preceding Weekly Collection Period.


 


“Adjusted
Repayment Date” means, (a) with respect to the Series 2008-1
Notes, (i) unless the Series 2008-1 First Extension Election becomes
effective, the Series 2008-1 Scheduled Maturity Date; (ii) from and
after the date that the Series 2008-1 First 


 


2

















 


Extension
Election becomes effective, the Series 2008-1 First Extended Scheduled
Maturity Date; and (iii) from and after the date that the Series 2008-1
Second Extension Election becomes effective, the Series 2008-1 Second
Extended Scheduled Maturity Date, and (b) with respect to any other Series of
Notes, the meaning set forth in the applicable Series Supplement.


 


“Administrative
Agent” means the party named as such in the Indenture until a successor
replaces it in accordance with the applicable provisions of the Indenture and
thereafter means the successor serving thereunder.  The Administrative Agent initially
shall be U.S. Bank National Association.


 


“Affiliate”
means, with respect to any specified Person, another Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by or
is under common control with the Person specified.  For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise; and “controlled” and “controlling” have meanings correlative to the
foregoing.


 


“After-Acquired IP
Assets” means any Intellectual Property created, developed, authored or
acquired after the Closing Date by or on behalf of, and owned by, the IP Holder
or any Additional IP Holder pursuant to the Related Documents or otherwise,
including any Intellectual Property developed by the Transaction Manager
pursuant to the Transaction Management Agreement, the Master Manager pursuant
to the Master Management Agreement or by any Securitization Entity pursuant to
the Securitization IP License Agreement or any sublicense thereof, and registered or issued or subject to an
application for registration or issuance in the United States or encompassing
Intellectual Property rights in the United States.


 


“Agent”
means any Registrar or Paying Agent.


 


“Aggregate
Contributions Amount” shall have the meaning set forth in Section 5.14(k)(i) of
the Base Indenture.


 


“Aggregate
Outstanding Principal Amount” means the sum of the Outstanding Principal
Amounts of the referenced Series of Notes or any Classes of Notes thereof.


 


“Aggregate
Termination Amounts” shall have the meaning set forth in Section 5.14(l)(i) of
the Base Indenture.


 


“Ancillary
Revenues” means certain non-Customer Contract revenues earned by the
Co-Issuers  from high-pressure
cylinder sales or leases, and installation, maintenance and other sales,
services and fees.


 


“Ancillary
Services” means the related sales, maintenance, installation, leasing and
other services provided by the Co-Issuers that generate the Ancillary Revenues.


 


3

















 


“Annual
Accountants’ Report” means the annual reports of the Independent
Accountants required to be delivered to the Trustee, the Administrative Agent
and the Rating Agencies by the Transaction Manager pursuant to Section 4.1(e) of
the Base Indenture.


 


“Annual
Noteholders’ Tax Statement” shall have the meaning set forth in Section 4.2
of the Base Indenture.


 


“Applicants”
shall have the meaning set forth in Section 2.7 of the Base
Indenture.


 


“Asset
Disposition Amounts” means the net cash proceeds from any Permitted Asset
Disposition after deduction by the Transaction Manager of any and all taxes
estimated to be payable in connection with such Permitted Asset Disposition and
any and all transaction costs and other direct costs associated with the
Permitted Asset Disposition.


 


“Asset
Disposition Prepayment Amounts” means, for any Payment Date, the aggregate
amount of Asset Disposition Amounts arising during the related Monthly
Collection Period for (a) all Excess Bulk CO2 Tank and
Nitrogen Generator Dispositions and (b) all Dispositions of Customer
Contracts.


 


“Asset
Transfer Documents” means, collectively, the Contribution Agreements and
other written documents and agreements effectuating the Asset Transfers.


 


“Asset
Transfers” means the transfers by NuCO2 on or before
the Closing Date (by capital contribution) of (i) the Contributed Property
to the Securitization Entities and (ii) the Employees (other than the
Leadership Team) to the Employee Company.


 


“Assignment”
means any assignment delivered in accordance with the terms of the Contribution
Agreements.


 


“Audit”
shall have the meaning set forth in Section 8.6 of the Base
Indenture.


 


“Authorized
Officer” means, as to any Person, (i) any of the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Treasurer, the General Counsel, the Senior Vice President of Sales, the
Secretary, any Assistant Treasurer or any Assistant Secretary of such Person
and in the case of the Administrative Agent, such officer is directly
responsible for the administration of the Indenture or (ii) in the case of
a Person whose Charter Documents do not provide for appointed officers, such
Person’s “member” or “manager” as provided in such Person’s Charter Documents
or an authorized designee thereof.


 


4














 


“Available
Senior Note Interest Reserve Account Amount” means, as of any date, the
amount (excluding investment on Income thereon) on deposit in the Senior Note
Interest Reserve Account.


 


“Bank
Account Expenses” means any fees or charges imposed on any Base Indenture
Account or Series Account by the bank establishing and maintaining such
account.


 


“Bankruptcy
Code” means the Bankruptcy Reform Act of 1978, as amended from time to
time, and as codified as 11 U.S.C. Section 101 et seq.


 


“Base
Indenture” means the Base Indenture, dated as of May 28, 2008, by and
among the Co-Issuers, the Trustee and the Administrative Agent (as amended,
modified or supplemented from time to time, exclusive of the Series 2008-1
Supplements and other future Supplements providing for the issuance of
additional Notes).


 


“Base
Indenture Account” means any account or accounts authorized and established
pursuant to the Base Indenture, including, without limitation, each account
established pursuant to Article V of the Base Indenture.


 


“Base
Indenture Definitions List” shall have the meaning set forth in Section 1.1
of the Base Indenture.


 


“Board
of Directors” means the board of directors of any corporation, or any
authorized committee of such board of directors.


 


“Board
of Managers” means the board of managers of any limited liability company,
or any authorized committee of such board of managers.


 


“Book-Entry
Note” means a Note in the form of a fully registered book-entry note,
deposited with, or on behalf of, DTC, and registered in the name of a nominee
of DTC as described in Section 2.12 of the Base Indenture; provided
that, after the occurrence of a condition whereupon book-entry registration and
transfer are no longer permitted and a Definitive Note is issued to the Note
Owner, such Definitive Note shall replace the Book-Entry Note.


 


“Budget
Plan” means a plan under a Customer Contract pursuant to which the Customer
(i) pays a flat monthly fee for (a) the lease, installation and
maintenance of Bulk CO2 Equipment and (b) refills of Bulk CO2 up to a predetermined annual
volume, and (ii) to the extent the Customer’s Bulk CO2 usage exceeds the predetermined volume
referenced in the foregoing clause (i)(b), is charged for additional
delivered Bulk CO2 on a per pound
basis.


 


“Bulk CO2”   means beverage-grade bulk carbon
dioxide.


 


“Bulk CO2 Equipment” means bulk carbon dioxide systems used in the
Bulk Gases Business.


 


5

















 


“Bulk
CO2 Tank and
Nitrogen Generator Aggregate Disposition Amount” means, as of any date of
determination, the total number of Dispositions of Bulk CO2 Tanks and Nitrogen Generators on such date and
during the immediately preceding twelve-month period.


 


“Bulk
CO2 Tanks” means Bulk CO2 tanks used in the Bulk Gases Business.


 


“Bulk
Gases” shall have the meaning given under the definition of “Bulk Gases
Business” below.


 


“Bulk
Gases Business” refers to the Master Manager’s, the Securitization Entities’
and any Affiliates’ business, which is primarily to collectively engage in the
management of or the business of the delivery of liquid and/or high pressure
carbon dioxide or other gases (“Bulk Gases”) and the selling and leasing
of related tanks and other equipment (“Customer Location Equipment”) in
the United States, to quick service restaurants and other customers in the
United States for use primarily in retail settings, including, but not limited
to, entering into the Customer Contracts, the Supply Contracts, and the Real
Estate Leases, providing certain Ancillary Services, Delivery Services,
Maintenance Services and Customer Services, buying and selling the Equipment
and acquiring, developing and using the Securitization IP.


 


“Business
Day” means any day except Saturday, Sunday or any day on which banks are
generally not open for business in New York, New York and the State of
Minnesota and, if any Series of Notes are listed on any non-U.S. stock
exchange, in the capital city of the country in which the related exchange is
located.


 


“Call
Center” shall have the meaning given within the definition of “Equipment.”


 


“Capitalized
Lease Obligations” of any Person means the obligations of such Person to
pay rent or other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP and, for the purposes of
the Related Documents, the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.


 


“Cash
Trap Reserve Account” shall have the meaning set forth in Section 5.4(a) of
the Base Indenture.


 


“Cash
Trapping Amount” means, with respect to a Payment Date, the amount of funds
to be deposited in the Cash Trap Reserve Account with respect to the Series 2008-1
Notes in an amount equal to the Series 2008-1 Cash Trapping Amount and
such other amount designated as a “Cash Trapping Amount” pursuant to the terms
of any Series Supplement.


 


6

















 


“Cash
Trapping Period” means the Series 2008-1 Cash Trapping Period as
defined in the Series 2008-1 Supplement and any other period designated as
a “Cash Trapping Period” pursuant to the terms of any Series Supplement.


 


“Cash
Trapping Release Amount” means the aggregate amount of funds on deposit in
the Cash Trap Reserve Account that are required to be released pursuant to the
terms of any Series Supplement.


 


“Cash
Trapping Release Event Date” means any date on which any amount on deposit
in the Cash Trap Reserve Account is required to be released pursuant to the
terms of any Series Supplement.


 


“Cede”
means Cede & Co.


 


“Change
of Control” means the occurrence of any of the following events:


 


(a) an
event or series of events by which (i) any Person other than Parent
becomes the owner of record of more than 50% of the voting stock in NuCO2 or (ii) any Person other than NuCO2 becomes the owner of record of more than 50%
of the Equity Interests in the Master Issuer;


 


(b) Parent
merges with another entity that is not an Affiliate of Parent and Parent is not
the surviving entity unless (i) such surviving entity has executed an
assumption agreement pursuant to which it agrees to assume all of the
obligations of Parent under the Related Documents to which Parent is a party
such that the assumed obligations are the legal, valid and binding obligations
of such surviving entity (supported by a customary legal opinion to that
effect), (ii) either or both of the Chief Executive Officer or Chief Financial
Officer of NuCO2 in office immediately prior to such merger has
an employment contract with NuCO2 for a minimum
term of 12 months immediately following the closing of such merger and (iii) a
Rating Agency Confirmation Letter is received confirming the ratings with
respect to each Series of Notes Outstanding; or


 


(c) an
event or series of events by which any person or group (other than any
Permitted Holder) (i) acquires beneficial ownership of more than 50% of
the Equity Interests of Parent or (ii) controls, either directly or
indirectly, more than 50% of the common stock of Parent or an amount of common
stock of Parent that entitles such person or group to exercise more than 50% of
the voting power of Parent’s security holders or gives such person or group the
power to appoint the majority of Parent’s Board of Directors unless, with
respect to any such event described in the foregoing clauses (i) and (ii),
(A) either or both of the Chief Executive Officer or Chief Financial
Officer of NuCO2 in office immediately prior to such event has
an employment contract with NuCO2 for a minimum term of 12 months immediately
following the occurrence of such event and (B) a Rating Agency
Confirmation Letter is received confirming the ratings with respect to each Series of
Notes Outstanding.


 


7

















 


“Charter
Documents” means, with respect to (i) a limited liability company, the
certificate of formation and limited liability company agreement, (ii) a
corporation, the certificate of incorporation and by-laws and (iii) a
partnership, the certificate of partnership and the partnership agreement.


 


“Class”
means, with respect to any Series of Notes, any one of the classes of
Notes of such Series as specified in the applicable Series Supplement.


 


“Class A
Notes” means, (i) with respect to the Series 2008-1 Notes, the Series 2008-1
Class A-1 Notes, the Series 2008-1 Class A-2 Notes and the Series 2008-1
Class A-3 Notes (each as defined in the Series 2008-1 Supplement),
and (ii) with respect to any other Series of Notes, as identified in
the applicable Series Supplement.


 


“Class A-1
Notes” means, (i) with respect to the Series 2008-1 Notes, the Series 2008-1
Class A-1 Notes (as defined in the Series 2008-1 Supplement), and (ii) with
respect to any other Series of Notes, as identified in the applicable Series Supplement.


 


“Class A-2
Breakage Amounts” means (i) with respect to the Series 2008-1
Notes, the Series 2008-1 Class A-2 Breakage Amounts (as defined in
the Series 2008-1 Supplement) and (ii) with respect to any other Series of
Notes, the “Class A-2 Breakage Amounts” with respect to such Series specified
in the applicable Series Supplement.


 


“Class A-2
Customer Contract” means any Customer Contract relating to a Bulk CO2 Tank or Nitrogen Generator acquired or
originated by the Contract Holder following the Closing Date that satisfies the
Contract Eligibility Criteria.


 


“Class A-2
Draw Date” means the Draw Date relating to the Series 2008-1 Class A-2
Notes.


 


“Class A-2
Note Administrative Agent” means the Person identified as such in the
applicable Class A-2 Note Purchase Agreement.


 


“Class A-2
Note Administrative Expenses” means, for any Payment Date, the aggregate
amount of any fees owing to the Class A-2 Note Administrative Agent
pursuant to the applicable Class A-2 Note Purchase Agreement (and any fee
letter entered into in connection therewith) and Class A-2 Amendment
Expenses (as defined in the applicable Series Supplement) then due and
payable and not previously paid.


 


“Class A-2
Note Purchase Agreement” means (i) with respect to the Series 2008-1
Notes, the Series 2008-1 Class A-2 Note Purchase Agreement (as
defined in the Series 2008-1 Supplement) and (ii) with respect to any
other Series of Notes, the note purchase agreement with respect to such
Series.


 


“Class A-2
Notes” means, (i) with respect to the Series 2008-1 Notes, the Series 2008-1
Class A-2 Notes (as defined in the Series 2008-1 Supplement), and (ii) 


 


8

















 


with
respect to any other Series of Notes, as identified in the applicable Series Supplement.


 


“Class A-2
Notes Commitment Fees Account” shall have the meaning set forth in Section 5.9(a) of
the Base Indenture.


 


“Class A-2
Other Amounts” means (i) with respect to the Series 2008-1 Notes,
the Series 2008-1 Class A-2 Other Amounts (as defined in the Series 2008-1
Supplement) and (ii) with respect to any other Series of Notes, the “Class A-2
Other Amounts” with respect to such Series specified in the applicable Series Supplement.


 


“Class A-2
Senior Note Commitment Fee Amount” means, as of any Determination Date for
any Interest Period, an amount equal to the aggregate of the Daily Commitment
Fee Amounts in respect of the Class A-2 Notes (calculated in accordance
with the provisions of the applicable Variable Funding Purchase Agreement and Series Supplement)
for each day in such Interest Period.


 


“Class A-2
Voluntary Decrease” means (i) with respect to the Series 2008-1
Notes, the Series 2008-1 Class A-2 Voluntary Decrease (as defined in
the Series 2008-1 Supplement), and (ii) with respect to any other Series of
Notes, any amount identified as constituting a “Class A-2 Voluntary
Decrease” in the applicable Series Supplement.


 


“Class A-3
Breakage Amounts” means (i) with respect to the Series 2008-1
Notes, the Series 2008-1 Class A-3 Breakage Amounts (as defined in
the Series 2008-1 Supplement) and (ii) with respect to any other Series of
Notes, the “Class A-3 Breakage Amounts” with respect to such Series specified
in the applicable Series Supplement.


 


“Class A-3
Draw Date” means the Draw Date relating to the Series 2008-1 Class A-3
Notes.


 


“Class A-3
Note Administrative Agent” means the Person identified as such in the
applicable Class A-3 Note Purchase Agreement.


 


“Class A-3
Note Administrative Expenses” means, for any Payment Date, the aggregate
amount of any fees owing to the Class A-3 Note Administrative Agent
pursuant to the applicable Class A-3 Note Purchase Agreement (and any fee
letter entered into in connection therewith) and Class A-3 Amendment
Expenses (as defined in the applicable Series Supplement) then due and
payable and not previously paid.


 


“Class A-3
Note Purchase Agreement” means (i) with respect to the Series 2008-1
Notes, the Series 2008-1 Class A-3 Note Purchase Agreement (as
defined in the Series 2008-1 Supplement) and (ii) with respect to any
other Series of Notes, the note purchase agreement with respect to such
Series.


 


“Class A-3
Notes” means, (i) with respect to the Series 2008-1 Notes, the Series 2008-1
Class A-3 Notes (as defined in the Series 2008-1 Supplement), and (ii) 


 


9

















 


with
respect to any other Series of Notes, as identified in the applicable Series Supplement.


 


“Class A-3
Notes Commitment Fees Account” shall have the meaning set forth in Section 5.9(a) of
the Base Indenture.


 


“Class A-3
Other Amounts” means (i) with respect to the Series 2008-1 Notes,
the Series 2008-1 Class A-3 Other Amounts (as defined in the Series 2008-1
Supplement) and (ii) with respect to any other Series of Notes, the “Class A-3
Other Amounts” with respect to such Series specified in the applicable Series Supplement.


 


“Class A-3
Senior Note Commitment Fee Amount” means, as of any Determination Date for
any Interest Period, an amount equal to the aggregate of the Daily Commitment
Fee Amounts in respect of the Class A-3 Notes (calculated in accordance
with the provisions of the applicable Variable Funding Note Purchase Agreement
and Series Supplement) for each day in such Interest Period.


 


“Class A-3
Voluntary Decrease” means (i) with respect to the Series 2008-1
Notes, the Series 2008-1 Class A-3 Voluntary Decrease (as defined in
the Series 2008-1 Supplement), and (ii) with respect to any other
Series of Notes, any amount identified as constituting a “Class A-3
Voluntary Decrease” in the applicable Series Supplement.


 


“Clearing
Agency” means an organization registered as a “clearing agency” pursuant to
Section 17A of the Exchange Act or any successor provision thereto or
Euroclear or Clearstream.


 


“Clearing
Agency Participant” means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.


 


“Clearstream”
means Clearstream Luxembourg.


 


“Closing
Date” means May 28, 2008.


 


“Code”
means the Internal Revenue Code of 1986, as amended, restated or otherwise
modified from time to time, and any successor statute of similar import, in
each case as in effect from time to time. 
References to sections of the Code also refer to any successor sections.


 


“Co-Issuer”
means, individually, the Master Issuer and each Issuer Subsidiary, and “Co-Issuers”
means, collectively, the Master Issuer and all Issuer Subsidiaries.


 


“Co-Issuers
Operating Agreements” means, collectively, the Master Issuer Operating
Agreement, the Contract Holder Operating Agreement, the Equipment Holder
Operating Agreement, the IP Holder Operating Agreement and any Additional
Co-Issuer Operating Agreement.


 


10

















 


“Cold
Replacement Manager Phase” means any period during the term of the
Replacement Management Agreement when neither a Warm Replacement Manager Phase
nor a Hot Replacement Manager Phase is in effect.


 


“Collateral”
shall have the meaning set forth in Section 3.1(a) of the Base
Indenture.


 


“Collateral
Bulk Gases Business Documents” means, collectively, the Customer Contracts
(other than those that have not been assigned to a Securitization Entity),
Contract Revenue Streams, the agreements pursuant to which Ancillary Services
are performed or Ancillary Revenues are otherwise payable to any Securitization
Entity, and each and every other agreement related to the operation of the Bulk
Gases Business that is between or among the Co-Issuers (or any of them) and any
third party pursuant to which any Co-Issuer is entitled to receive payment or
performance of obligations from, or otherwise has the benefit of rights from or
against, any such third party.


 


“Collateral
Documents” means, collectively, the Collateral Bulk Gases Business
Documents and the Collateral Transaction Documents.


 


“Collateral
Transaction Documents” means, collectively, the Contribution Agreements,
the Transaction Management Agreement, the Master Management Agreement, the
Pledge Agreement, the Replacement Management Agreement, the Securitization IP
License Agreement, the Employment Services Agreement, the Delivery and Customer
Services Agreement and any other agreements entered into, or certificates
delivered, pursuant to the foregoing documents, excluding the Indenture
Documents, to which any of the Co-Issuers is a party.


 


“Collection
Account” shall have the meaning set forth in Section 5.8 of the
Base Indenture.


 


“Collection
Account Administrative Accounts” shall have the meaning set forth in Section 5.9
of the Base Indenture.


 


“Collections”
means (a) Customer Collections, (b) all Contributions (provided
that, for avoidance of doubt, Collections shall not include any amount of
equity contributions made in cash by NuCO2 to the Master
Issuer that are not intended by NuCO2 to constitute
“Contributions” for inclusion in Net Cash Flow subject to the limitations set
forth in the proviso to the definition of Contributions), (c) the
Customer Location Equipment Resale Revenues, (d) any Asset Disposition
Amounts, Indemnification Amounts and Insurance Proceeds Amounts, (e) all
amounts and allocations distributed to the Master Issuer as a result of its
ownership of the Preferred Equity Interests in the Employee Company (f) all
other amounts, including Investment Income, deposited into the Collection
Account under the Indenture and (g) any amounts received in respect of
Permitted Hedges.


 


“Company
Order” or “Company Request” means a written order or request signed
in the name of each of the Co-Issuers by any Authorized Officer of each 


 


11

















 


such
Co-Issuer and delivered to the Trustee, the Administrative Agent, the Registrar
or the Paying Agent.


 


“Compliance
Certificate” shall have the meaning set forth in Section 4.1(d) of
the Base Indenture.


 


“Concentration
Account” shall have the meaning set forth in Section 5.1 of the
Base Indenture.


 


“Confidential
Information” means Know-How and any other information treated as
confidential and proprietary by its owner, whether or not designated as
confidential.


 


“Consolidated
EBITDA” means, for any period, Consolidated Net Income for such period,
adjusted by (x) adding thereto, in each case only to the extent
(and in the same proportion) deducted in determining such Consolidated Net
Income and without duplication:


 


(a)                                  Consolidated
Interest Expense for such period and, without duplication, amortization of debt
issuance costs, debt discount or premium and other financing fees and expenses
incurred by NuCO2 or any of its Subsidiaries for such period,


 


(b)                                 the
amortization expense of NuCO2 and its Subsidiaries for such
period (including amortization of goodwill, other intangibles, transaction
costs and financing fees and expenses), determined on a consolidated basis in
accordance with GAAP,


 


(c)                                  the
depreciation expense of NuCO2 and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP,


 


(d)                                 the tax expense
of NuCO2 and its Subsidiaries, for such period,
determined on a consolidated basis in accordance with GAAP,


 


(e)                                  costs and
expenses directly incurred in connection with the acquisition of NuCO2 and the transactions related thereto,


 


(f)                                    management fees
and expenses paid to Aurora Management Partners LLC, a Delaware limited
liability company, for such period pursuant to Management Services Agreement
between NuCO2 and Aurora Management Partners LLC in effect
as of the Closing Date, and


 


(g)                                 the aggregate
amount of all other non-cash charges reducing Consolidated Net Income for such
period, including without limitation:


 


(i)                                     the non-cash
portion of pension expenses for such period,


 


(ii)                                  non-cash
impairment charges, and


 


12

















 


(iii)                               non-cash expenses
resulting from the grant of stock and stock options and other compensation to
management personnel of NuCO2 and its Subsidiaries pursuant to
a written incentive plan or agreement.


 


(y) subtracting
therefrom the
aggregate amount of all non-cash items increasing Consolidated Net Income
(other than the accrual of revenue or recording of receivables in the ordinary
course of business) for such period.


 


Consolidated EBITDA shall be calculated on a
pro forma basis to give effect to any acquisition and Dispositions (other than
any Dispositions in the ordinary course of business) consummated at any time on
or after the first day of the applicable period thereof as if each such
acquisition had been effected on the first day of such period and as if each
such Disposition had been consummated on the day prior to the first day of such
period.


 


“Consolidated
Interest Expense” means for any period, the total consolidated interest
expense of NuCO2 and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; provided
that Consolidated Interest Expense shall be calculated after giving effect to
all Interest Rate Hedges (including associated costs), but excluding unrealized
gains and losses with respect to Interest Rate Hedges.


 


Consolidated
Interest Expense shall be calculated on a pro forma basis to give effect to any
Indebtedness incurred, assumed or permanently repaid or extinguished during the
relevant period in connection with any acquisitions and Dispositions (other
than any Dispositions in the ordinary course of business) as if such
incurrence, assumption, repayment or extinguishing had been effected on the
first day of such period.


 


“Consolidated
Net Income” means, for any period, the consolidated net income (or loss) of
NuCO2 and its Subsidiaries determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded from such net income (to the extent otherwise included therein),
without duplication:


 


(a) the
net income (or loss) of any Person (other than a Subsidiary of NuCO2) in which any Person other
than NuCO2 and its Subsidiaries has an ownership
interest, except to the extent that cash in an amount equal to any such income
has actually been received by NuCO2 or any of its
Subsidiaries during such period;


 


(b) any
gain (or loss), together with any related provisions for taxes on any such gain
(or the tax effect of any such loss), realized during such period by NuCO2 or any of its Subsidiaries upon any
Dispositions (other than any Dispositions in the ordinary course of business)
by Holdings or any of its Subsidiaries;


 


(c) gains
and losses due solely to fluctuations in currency values and the related tax
effects determined in accordance with GAAP for such period;


 


13

















 


(d) earnings
(or losses) resulting from any reappraisal, revaluation or write-up (or
write-down) of assets;


 


(e) unrealized
gains and losses with respect to any Interest Rate Hedge for such period;


 


(f) any
extraordinary or nonrecurring gain (or extraordinary or nonrecurring loss),
together with any related provision for taxes on any such gain (or the tax
effect of any such loss), recorded or recognized by NuCO2 or any of its Subsidiaries during such period;
and


 


(g) the
cumulative effect of a change in accounting principles.


 


“Contingent
Obligation” means, as to any Person, any obligation, agreement,
understanding or arrangement of such Person guaranteeing or intended to
guarantee any Indebtedness, leases, dividends or other obligations (“primary
obligations”) of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, including any obligation of such Person,
whether or not contingent, (a) to purchase any such primary obligation or
any property constituting direct or indirect security therefor; (b) to
advance or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor; (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation; (d) with respect to bankers’ acceptances, letters of credit
and similar credit arrangements, until a reimbursement obligation arises (which
reimbursement obligation shall constitute Indebtedness); or (e) otherwise
to assure or hold harmless the holder of such primary obligation against loss
in respect thereof; provided, however, that the term “Contingent
Obligation” shall not include endorsements of instruments for deposit or
collection in the ordinary course of business or any product warranties.


 


“Contract
Eligibility Criteria” refers, with respect to any Customer Contract, to
certain eligibility requirements relating to such contract’s enforceability,
assignability, termination provisions and other terms as described in the Series 2008-1
Class A-2 Note Purchase Agreement.


 


“Contract
Holder” means NuCO2 LLC, a Delaware limited liability company, and
its successors and assigns.


 


“Contract
Holder Operating Agreement” means the Amended and Restated Limited
Liability Company Agreement of the Contract Holder, dated as of May 28,
2008, as further amended, supplemented or otherwise modified from time to time.


 


“Contract
Revenue Streams” means all revenues which NuCO2 is entitled
to receive pursuant to a Customer Contract that has not been assigned to the
Contract Holder.


 


14














 


“Contractual Obligation”
means, with respect to any Person, any provision of any security issued by that
Person or of any indenture, mortgage, deed of trust, license, contract,
undertaking, agreement or other instrument to which that Person is a party or by
which it or any of its properties is bound or to which it or any of its
properties is subject.


 


“Contributed Property”
means all right, title and interest in, to and under (i) all Existing
Customer Contracts (other than those that cannot be assigned to the Contract
Holder on or prior to the Closing Date), (ii) all Contract Revenue
Streams, (iii) all Existing Supply Contracts, (iv) all Existing Real
Estate Leases (other than those that cannot be assigned to the Equipment Holder
on or prior to the Closing Date), (v) Use and Occupancy Licenses with
respect to any Existing Real Estate Leases that cannot be assigned to the
Equipment Holder on or prior to the Closing Date, (vi) all Existing
Delivery Truck Leases, (vii) all Existing Equipment, (viii) the
Preferred Equity Interests in the Employee Company, (ix) the Concentration
Account, (x) all Existing Securitization IP (other than those Third Party
IP License Agreements that cannot be assigned to the IP Holder on or prior to
the Closing Date) and (xi) all products and proceeds of the foregoing.


 


“Contribution Agreements”
means the First Tier Contribution Agreement and the Second Tier Contribution
Agreements, collectively.


 


“Contributions” means
the amount of equity contributions made in cash by NuCO2 to the Master Issuer during any Monthly
Collection Period that the Transaction Manager elects to have treated as “Contributions”
for purposes of the Indenture; provided that such Contributions shall be
made only (x) during up to seven different Monthly Collection Periods
between the Closing Date and the Series 2008-1 Legal Final Maturity Date,
and (y) during not more than three Monthly Collection Periods that occur
during any twelve month period beginning with the twelve month period
commencing on the Closing Date, and may not exceed $30,000,000 in aggregate
amount any time (taking into account all prior Contributions); provided,
further that Contributions shall not include any contributions made in
cash by NuCO2 to the Surplus Account or other account that
does not constitute part of the Collateral under the Base Indenture. In
connection with each Contribution, NuCO2 shall provide
the Trustee, the Administrative Agent and the Rating Agencies with prior
written notice thereof, which notice shall include its business rationale
underlying such Contribution.


 


“Contributions Amount
Shortfall” shall have the meaning set forth in Section 5.14(k)(i) of
the Base Indenture.


 


“Contributions Reserve
Account” shall have the meaning set forth in Section 5.5(a) of
the Base Indenture.


 


“Control Party”
means, in respect of the Series 2008-1 Class A Notes, the Trustee
acting at the direction or with the consent of at least a majority of the sum
of the aggregate principal amount of the Outstanding Series 2008-1 Class A-1
Notes and the aggregate commitments in respect of the Series 2008-1 Class A-2
Notes and the Series 2008-1 Class A-3 Notes (the “Required Senior
Noteholders”) so long as there are any 


 


15

















 


Series 2008-1 Class A
Notes Outstanding, and if there are no Series 2008-1 Class A Notes
Outstanding at such time, the Trustee acting at the direction or with the
consent of the Noteholders holding at least a majority of the aggregate
principal amount of the Outstanding Subordinated Notes (the “Required
Subordinated Noteholders”).


 


“Control Party Order”
means a written order signed by or on behalf of the Required Senior Noteholders
or Required Subordinated Noteholders, as applicable, and delivered to the
Trustee.


 


“Controlled Group”
means, with respect to any Person, such Person, whether or not incorporated,
and any corporation, trade, business, organization or other entity that is,
along with such Person, treated as a single employer under
Sections 414(b), (c), (m) or (o) of the Code or Section 4001(a)(14) of
ERISA.


 


“Controlled Investment
Affiliate” means, as to any Person, any other Person which directly or
indirectly is in control of, is controlled by, or is under common control with
such Person and is organized by such Person (or any Person controlling such
Person) primarily for making equity or debt investments in Parent or other
portfolio companies.


 


“Controlling Class”
means, for so long as the Series 2008-1 Class A Notes are
Outstanding, the Senior Notes.  If there
are no Series 2008-1 Class A Notes Outstanding, the Subordinated
Notes shall be the Controlling Class.


 


“Copyrights” means
all United States and non-U.S. copyrights, copyrightable works and mask works,
whether registered or unregistered, and pending applications to register the
same.


 


“Corporate Trust Office”
shall mean (i) for note transfer purposes and for purposes of presentment
and surrender of the Notes for the final distributions thereon, 60 Livingston
Avenue, EP-MN-WS2N, St. Paul, MN 55107, Attn: Transfer Unit, and (ii) for
all other purposes, 60 Livingston Avenue, EP-MN-WS3D, St. Paul, MN 55107, Attn:
Structured Finance/NuCO2, or such other
addresses as the Trustee may designate from time to time by notice to the
Noteholders and the Co-Issuers.


 


“CPI” means, with
respect to any period, the Consumer Price Index as published by the U.S.
Department of Labor.


 


“Customer” means a
party (other than an Affiliate of NuCO2) to a Customer Contract or a user of Ancillary
Services.


 


“Customer Collections”
means all payments made on or with respect to (a) the Customer Contracts
(including, without limitation, (i) all amounts payable to the Contract
Holder in connection with a termination of a Customer Contract (“Termination
Amounts”) and (ii) all amounts payable by Customers in connection with
Customer Contracts which NuCO2 (if NuCO2 is the counterparty to that Customer Contract)
or the applicable Securitization Entity (if such Securitization Entity is the
counterparty or 


 


16

















 


assignee to that Customer
Contract) designates as deposits made pursuant thereto (the “Customer
Deposits”)), (b) the Ancillary Revenues and (c) all
reimbursements from third parties with respect to sales taxes, property taxes
or other taxes and fees advanced by any of the Securitization Entities on
behalf of such third parties.


 


“Customer Contract
Aggregate Disposition Amount” means, as of any date of determination, the
aggregate revenue (measured in accordance with GAAP) attributable to all of the
Customer Contracts disposed of on such date and during the immediately
preceding twelve month period, with the aggregate revenue attributable to each
such Customer Contract being the revenue generated during the twelve month
period immediately preceding its Disposition.


 


“Customer Contracts”
means contracts existing on the Closing Date and originated after the Closing
Date providing for NuCO2 (prior to the Closing Date) and Contract
Holder (after the Closing Date) to provide to Customers the products and
services contemplated by the Budget Plan, the Equipment Lease and Product
Purchase Plan, the Fill Plan, the Nitrogen Generator Plan and other contracts
(relating to other plans) entered into by NuCO2 (prior to the
Closing Date) and Contract Holder (after the Closing Date) with customers for
the provision by the Contract Holder to such Customers of Equipment leasing,
Bulk CO2 supply, services and sales.


 


“Customer Deposits”
shall have the meaning given in the definition of “Customer Collections” in
this Base Indenture Definitions List.


 


“Customer Location
Equipment” shall have the meaning given in the definition of “Bulk Gases
Business” in this Base Indenture Definitions List.


 


“Customer Location
Equipment Costs” means the costs to the Equipment Holder, including
transaction costs, of purchasing Customer Location Equipment from suppliers for
sale to the Contract Holder, which resells such Customer Location Equipment to
its Customers.


 


“Customer Location
Equipment Resale Revenues” mean all amounts received by the Contract Holder
in respect of sales of Customer Location Equipment to its Customers, which
amounts equal (i) the Customer Location Equipment Costs applicable to the
relevant Customer Location Equipment being sold and (ii) any additional
amounts charged by the Contract Holder in excess of the Customer Location
Equipment Costs applicable to such Customer Location Equipment.


 


“Customer Services” has the meaning
set forth in the Delivery and Customer Services Agreement.


 


“Cut
Off Date” means May 28, 2008.


 


“Daily Commitment Fee
Amount” means, for any day during any Interest Period, the Undrawn
Commitment Fees (as defined in the Class A-2 Note Purchase 


 


17

















 


Agreement or the Class A-3
Note Purchase Agreement, as applicable) that accrue for such day on each Class A-2
Note or each Class A-3 Note, as applicable.


 


“Debt Service” means, with
respect to each Payment Date, the sum of (a) the Senior Note Interest
Amount, plus (b) the Class A-2 Senior Note Commitment Fee
Amount, plus (c) the Class A-3 Senior Note Commitment Fee
Amount, plus (d) the Series Hedge Payment Amount, if any; provided,
in respect of the first Payment Date, Debt Service will be deemed to be the
excess, if any, of (i) the sum of clauses (a) through (d) above
over (ii) the Initial Collection Account Senior Note Reserve Amount.


 


“Debt Service Coverage
Ratios” means, collectively, the Three-Month DSCR, the One-Year DSCR, the Series 2008-1
Post-Adjusted Repayment Date DSCR and the Pro Forma DSCR.


 


“Default”
means any occurrence that is, or with notice or the lapse of time or both would
become, an Event of Default.


 


“Default
Rate” has the meaning set forth in the applicable Series Supplement.


 


“Definitive Notes”
shall have the meaning set forth in Section 2.12(a) of the
Base Indenture.


 


“Delivery and Customer
Services Agreement” means the Delivery and Customer Services Agreement,
dated as of  May 28, 2008, by and
between the Contract Holder and the Equipment Holder.


 


“Delivery and Customer
Services Fees” means, for a Weekly Allocation Date, 98% of Adjusted
Customer Collections deposited to the Concentration Account during the
preceding Weekly Collection Period.


 


“Delivery Equipment” means the
Existing Delivery Equipment and any such equipment acquired or leased after the
Closing Date.


 


“Delivery Services” has the meaning
set forth in the Delivery and Customer Services Agreement.


 


“Delivery Truck Leases” means the
Existing Delivery Truck Leases and all future agreements pursuant to which the
Securitization Entities lease Delivery Trucks from certain industrial truck
leasing companies.


 


“Delivery Trucks”
means those motor vehicles (both leased and owned as of the Closing Date or
thereafter by the Securitization Entities) used to perform the Delivery
Services associated with Customer Contracts and Ancillary Revenues.


 


“Depository” shall
have the meaning set forth in Section 2.12(a) of the Base
Indenture.


 


18

















 


“Depository Agreement”
means, with respect to a Series or Class of a Series of Notes
having Book-Entry Notes, the agreement among the Co-Issuers, the Trustee and
the Clearing Agency governing the deposit of such Notes with the Clearing
Agency, or as otherwise provided in the applicable Series Supplement.


 


“Determination Date”
means, with respect to any Payment Date, the day that is three Business Days
prior to such Payment Date.


 


“Disposition” means,
with respect to any property of any Person, the sale, transfer, conveyance or
other disposition of such property to another Person.


 


“Dollar” and the
symbol “$” mean the lawful currency of the United States.


 


“Draw Date” means,
with respect to the Series 2008-1 Class A-2 Notes and the Series 2008-1
Class A-3 Notes, the date on which commitments thereunder are drawn.


 


“Drawn VFN Amounts” shall
have the meaning set forth in Section 5.14(i)(v) of the Base
Indenture.


 


“DTC” means The
Depository Trust Company, and any successor thereto.


 


“Early Amortization Event”
shall have the meaning specified in Section 9.1 of the Base
Indenture.


 


“Early Amortization
Period” means all such times as an Early Amortization Event shall have
occurred and be continuing.


 


“Eligible Account”
means (a) a segregated identifiable trust account established in the trust
department of a Qualified Trust Institution or (b) a separately
identifiable deposit or securities account established at a Qualified
Institution.


 


“Employee Company”
means NuCO2 Management LLC,
a Delaware limited liability company, and its successors and assigns.


 


“Employee Company Account”
means the deposit account of the Employee Company designated as “Employee
Company Account” and maintained at Bank of America, N.A., or another financial
institution satisfying the criteria applicable to the Trustee.


 


“Employee Services
Agreement” means the Employee Services Agreement, dated as of  May 28, 2008, between the Equipment
Holder and the Employee Company, as amended, supplemented or otherwise modified
from time to time.


 


“Employee Services Fee”
means the fee identified as the “Employee Services Fee” in the Employee
Services Agreement.


 


19

















 


“Employee Wages and
Benefits” means all Employee base salaries, bonuses and other perquisites,
as applicable, all other employee benefits, as may be modified from time to
time, all federal state or local taxes withheld or otherwise required to paid
with respect thereto, liabilities for statutory benefits, including workers’
compensation and unemployment insurance.


 


“Employees” means
individuals employed by NuCO2 as of the Closing Date and
thereafter by the Employee Company that provide the Delivery Services, the
Maintenance Services, the Customer Services, the Ancillary Services and/or
related managerial, administrative and other services, together with any future
employees employed for the same purposes.


 


“Enhancement” means,
with respect to any Series of Notes, the rights and benefits provided to
the Noteholders of such Series of Notes pursuant to any letter of credit,
surety bond, cash collateral account, spread account, guaranteed rate
agreement, maturity guaranty facility, tax protection agreement, or any other
similar arrangement entered into by the Co-Issuers in connection with the
issuance of such Series of Notes as provided for in the applicable Series Supplement
in accordance with the terms of the Base Indenture, including any note guaranty
insurance policy.


 


“Enhancement Agreement”
means any contract, agreement, instrument or document governing the terms of
any Enhancement or pursuant to which any Enhancement is issued or outstanding.


 


“Enhancement Payment
Account” has the meaning set forth in Section 5.7 of the Base
Indenture.


 


“Enhancement Payment
Amount” means for any Interest Period with respect to the applicable Class of
Notes, the aggregate amount due and payable on the applicable Payment Date
pursuant to the related Enhancement Agreement, which amount shall be identified
as the “Enhancement Payment Amount” in the related Series Supplement.


 


“Enhancement Provider”
means the Person providing any Enhancement as designated in the applicable Series Supplement.


 


“Environmental Law”
means any and all laws, rules, orders, regulations, statutes, ordinances,
guidelines, codes, decrees, agreements or other legally enforceable
requirements (including, without limitation, common law) of any
international authority, foreign government, the United States, or any state,
local, municipal or other governmental authority, regulating, relating to or
imposing liability or standards of conduct concerning protection of the
environment or of human health, or employee health and safety, as has been, is
now, or may at any time hereafter be, in effect.


 


“Equipment” means the
high pressure cylinders, Bulk CO2 storage tanks
and receivers, other related maintenance equipment and other equipment in connection
with the Customer Contracts and the Ancillary Revenues, including equipment
used in 


 


20

















 


the provision of Customer
Services, and office equipment such as computers, telephones, telephone
systems, desks, records, supplies and other equipment necessary to operate its
Customer service call center (the “Call Center”), the Existing Customer
Location Equipment, the Existing Delivery Equipment, the Existing Service
Location Equipment and the Existing Maintenance Equipment, together with any
equipment acquired or leased on or after the Closing Date by the Equipment
Holder.


 


“Equipment Holder”
means NuCO2 Supply LLC, a Delaware limited liability
company, and its successors and assigns.


 


“Equipment Holder CAPEX
Account” shall have the meaning set forth in Section 5.2(c) of
the Base Indenture.


 


“Equipment Holder CAPEX
Fees” means for any Weekly Allocation Date an amount equal to 6.15% of
Adjusted Customer Collections deposited to the Concentration Account during the
preceding Weekly Collection Period.


 


“Equipment Holder Master
Account” shall have the meaning set forth in Section 5.2(a) of
the Base Indenture.


 


“Equipment Holder
Operating Account” shall have the meaning set forth in Section 5.2(b) of
the Base Indenture.


 


“Equipment Holder
Operating Agreement” means the Amended and Restated Limited Liability
Company Agreement of the Equipment Holder, dated as of May 28, 2008, as
further amended, supplemented or otherwise modified from time to time.


 


“Equipment Holder Operating
Expense Cap” means, for any Weekly Allocation Date, an amount equal to the
sum of (i) $231,000, subject to annual increases to adjust for any
increase in the CPI, and (ii) 31.13% of Adjusted Customer Collections
deposited to the Concentration Account during the preceding Weekly Collection
Period.


 


“Equipment Holder
Operating Expense Fees” means, for any Weekly Allocation Date, an amount
equal to (i) all payments and deposits made during the preceding Weekly
Collection Period pursuant to any agreement relating to the Equipment, the
Delivery Truck Leases, the Real Estate Leases and the Supply Contracts, and (ii) any
other payments and deposits related to the operation of the Bulk Gases Business
made during the preceding Weekly Collection Period; provided that such
amount excludes (a) any Sales Tax Reimbursements or Property Tax
Reimbursements relating to such Weekly Allocation Date and (b) the Product
and Lease Expenses relating to the preceding Weekly Collection Period.


 


“Equipment Lease
and Product Purchase Plan” means a plan under a
Customer Contract pursuant to which the Customer (a) pays a flat monthly
fee for the lease, installation and maintenance of Bulk CO2 Equipment, and (b) for the delivery of
Bulk CO2 on a per pound basis.


 


21

















 


“Equity Interests”
means (a) any ownership, management or membership interests in any limited
liability company or unlimited company, (b) any general or limited
partnership interest in any partnership, (c) any common, preferred or
other stock interest in any corporation, (d) any share, participation,
unit or other interest in the property or enterprise of an issuer that
evidences ownership rights therein, (e) any ownership or beneficial
interest in any trust or (f) any option, warrant or other right to convert
into or otherwise receive any of the foregoing.


 


“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended, and any successor
statute of similar import, in each case as in effect from time to time.  References to sections of ERISA also refer to
any successor sections.


 


“Euroclear” means
Euroclear Bank, S.A./N.V., or any successor thereto, as operator of the
Euroclear System.


 


“Event of Bankruptcy”
shall be deemed to have occurred with respect to a Person if:


 


(a) a case or other
proceeding shall be commenced, without the application or consent of such
Person, in any court, seeking the liquidation, reorganization, debt
arrangement, dissolution, winding up, or composition or readjustment of debts
of such Person, the appointment of a trustee, receiver, custodian, liquidator,
assignee, sequestrator or the like for such Person or all or any substantial
part of its assets, or any similar action with respect to such Person under any
law relating to bankruptcy, insolvency, reorganization, winding up or
composition or adjustment of debts, and such case or proceeding shall continue
undismissed, or unstayed and in effect, for a period of sixty (60) consecutive
days; or an order for relief in respect of such Person shall be entered in an
involuntary case under the federal bankruptcy laws or other similar laws now or
hereafter in effect; or


 


(b) such Person shall
commence a voluntary case or other proceeding under any applicable bankruptcy,
insolvency, reorganization, debt arrangement, dissolution or other similar law
now or hereafter in effect, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) for such Person or for any substantial
part of its property, or shall make any general assignment for the benefit of
creditors; or


 


(c) the board of
directors or board of managers (or similar body) of such Person shall vote to
implement any of the actions set forth in clause (b) above.


 


“Event of Default”
means any of the events set forth in Section 9.2 of the Base
Indenture.


 


“Excess Bulk CO2 Tank and Nitrogen Generator Disposition” means, as of
any date of determination, a Disposition of a Bulk CO2 Tank or Nitrogen Generator on any day on which
(x) the applicable Bulk CO2 Tank and
Nitrogen Generator Aggregate 


 


22

















 


Disposition Amount as of
such date exceeds (y) the Ordinary Disposition Amount relating to Bulk CO2 Tanks and Nitrogen Generators as of such date.


 


“Excess CAPEX Amounts”
means, as of any Determination Date, an amount equal to the excess, if any, of (i) the
amount on deposit in the Equipment Holder CAPEX Account as of such date over (ii) $20
million.


 


“Excess Customer Contract
Disposition” means, as of any date of determination, a Disposition of a
Customer Contract on any day on which (x) the Customer Contract Aggregate
Disposition Amount as of such date exceeds (y) the Ordinary Disposition
Amount relating to Customer Contracts as of such date.


 


“Exchange Act” means
the Securities Exchange Act of 1934, as amended.


 


“Existing Bulk CO2 Equipment
Supply Contracts”
means (i) the existing contract between NuCO2 and Chart
Industries, Inc., dated as of July 1, 2003, as amended from time to
time,  and (ii) the existing
contract between NuCO2 and Harsco Corporation, dated as of June 27,
2006, as amended from time to time, in each case pursuant to which NuCO2 purchases Bulk CO2 Equipment.


 


“Existing Bulk CO2 Supply Contract” means the existing
contract between NuCO2 and The BOC Group, Inc., dated as of
April, 1997, as amended from time to time, pursuant to which NuCO2 purchases Bulk CO2


 


“Existing Customer
Contracts” means the Customer Contracts to which NuCO2 is a party prior to or as of the Closing Date
and transferred (or, with respect to those that have not been assigned, the
related Contract Revenue Streams of which are assigned) to the Securitization
Entities pursuant to the Contribution Agreements.


 


“Existing Customer Location
Equipment” means the Customer Location Equipment owned by NuCO2 on or prior to the Closing Date transferred to
the Securitization Entities pursuant to the Contribution Agreements.


 


“Existing Delivery
Equipment” means the Existing Delivery Trucks together with the Bulk CO2 holding tanks and other
equipment owned by NuCO2 and transferred to the Securitization Entities
pursuant to the Contribution Agreements.


 


“Existing Delivery Trucks”
means the trucks used to complete the Delivery Services on or prior to the
Closing Date (whether owned by NuCO2 or a
Securitization Entity or leased pursuant to the Delivery Truck Leases) and
transferred to the Securitization Entities pursuant to the Contribution
Agreements.


 


“Existing Delivery Truck
Leases” means each of (i) the existing lease between NuCO2 and Ryder Truck Rental, Inc., dated as of
December 1, 1994, as amended from time to time and transferred to the
Securitization Entities pursuant to the Contribution Agreements, and (ii) the
existing lease between NuCO2 and Penske Truck Leasing CO.,
L.P., dated as of  February 7, 2006,
as amended from time to time and 


 


23

















 


transferred to the
Securitization Entities pursuant to the Contribution Agreements, in each case
pursuant to which NuCO2 leases Delivery Trucks.


 


“Existing Equipment”
means, collectively, the Existing Related Equipment, the Existing Customer
Location Equipment, the Existing Delivery Equipment, the Existing Service
Location Equipment and the Existing Maintenance Equipment.


 


“Existing Maintenance
Equipment” means the NuCO2-owned equipment that NuCO2 uses to
provide on-site and off-site maintenance and refurbishment of Customer Location
Equipment on or prior to the Closing Date and transferred to the Securitization
Entities pursuant to the Contribution Agreements.


 


“Existing Real Estate
Leases” means the leases existing on the Closing Date, pursuant to which
the stationary Service Locations are leased by NuCO2 from third
parties, and transferred to the Securitization Entities pursuant to the
Contribution Agreements.


 


“Existing Related
Equipment” means the high pressure cylinders, Bulk CO2 storage tanks and receivers, other related
maintenance equipment and other equipment used in connection with the Customer
Contracts and the Ancillary Services, including equipment used in the provision
of Customer Services, and office equipment such as computers, telephones,
telephone systems, desks, records, supplies and other equipment necessary to
operate the Call Center owned by NucO2 and
transferred to the Equipment Holder pursuant to the Contribution Agreements on
or prior to the Closing Date.


 


“Existing
Securitization IP” means the Third Party IP License Agreements and all
Intellectual Property registered
or issued or subject to an application for registration or issuance in the
United States or encompassing Intellectual Property rights in the United States, including, without limitation, all customer lists, algorithms,
Trademarks, trade names, Copyrights, Patents, Know-How and Software, owned,
used or held for use as of the Closing Date by NuCO2 and transferred to the Securitization Entities
pursuant to the Contribution Agreements.


 


“Existing Service
Location Equipment” means each Bulk CO2 storage
receiver, which is used to receive Bulk CO2 from large
capacity tanker trucks and from which the Delivery Trucks are filled with Bulk
CO2 to complete the Delivery Services, as well as
other equipment used at Service Locations existing on the Closing Date, and
transferred to the Securitization Entities pursuant to the Contribution
Agreements.


 


“Existing Supply
Contracts” means the Existing Bulk CO2 Supply
Contract, the Existing Bulk CO2 Equipment
Supply Contracts and any other existing supply contracts owned by NuCO2 prior to or as of the Closing Date and
transferred to the Securitization Entities pursuant to the Contribution
Agreements.


 


24














 


“Extension Election
Period” means, with respect to the Series 2008-1 Notes (i) the
period from the Series 2008-1 Scheduled Maturity Date to the Series 2008-1
First Extended Scheduled Maturity Date and (ii) the period from the Series 2008-1
First Extended Scheduled Maturity Date to the Series 2008-1 Second
Extended Scheduled Maturity Date, as applicable.


 


“FDIC” means the
Federal Deposit Insurance Corporation or any successor agency thereto.


 


“Fill Plan”
means a plan pursuant to a Customer Contract under which a Customer pays for
refills of Bulk CO2 for
Customer-owned Bulk CO2 Equipment on a
per pound or flat monthly fee basis.


 


“Final Payment” means
the repayment of all accrued and unpaid interest, as well as all Outstanding
Principal Amounts, on the Notes.


 


“Final Series Adjusted
Repayment Date” means the Series Adjusted Repayment Date with respect
the last Series of Notes Outstanding.


 


“Final Series Legal
Final Maturity Date” means the Series Legal Final Maturity Date with
respect the last Series of Notes Outstanding.


 


“Financial Assets”
shall have the meaning set forth in Section 5.10 of the Base
Indenture.


 


“First Tier Contribution
Agreement” means the First Tier Contribution Agreement, dated as of May 28,
2008, by and between NuCO2 and the Master Issuer, as
amended, supplemented or otherwise modified from time to time.


 


“Fitch” means Fitch, Inc.,
doing business as Fitch Ratings, or any successor thereto.


 


“GAAP” means the
generally accepted accounting principles promulgated or adopted by the
Financial Accounting Standards Board and its predecessors and successors from
time to time.


 


“Governmental Authority”
means the government of the United States of America or any other nation or any
political subdivision of the foregoing, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


 


“Hedge Counterparty”
means, with respect to any Series of Notes, the Person specified as the
counterparty to the applicable Interest Rate Hedge Agreement, if any; provided
that any Hedge Counterparty shall have (i) a long-term debt rating of at
least “A” from S&P, “A2” from Moody’s or “A” from Fitch and (ii) a
short-term debt rating of at least “P-1” from Moody’s and “F-1” from Fitch.


 


25

















 


“Hedge Payment Account”
has the meaning set forth in Section 5.7 of the Base Indenture.


 


“Holder” and “Noteholder”
means the Person in whose name a Note is registered in the Note Register.


 


“Hot Back-Up Services
Effective Date” means the date of receipt of written notice by the
Replacement Manager from the Administrative Agent (acting at the direction of
the Control Party) to the Replacement Manager to the effect that the
Three-Month DSCR for any Payment Date is less than 1.20 times or that an Event
of Default has occurred and is continuing and the Administrative Agent (acting
at the direction of the Control Party) is exercising its rights under the
Replacement Management Agreement.


 


“Hot Replacement Manager
Phase” means the period during the term of the Replacement Management
Agreement between a “Hot Back-Up Services Effective Date” and a “Hot Back-Up Services
Termination Date,” in accordance with the terms thereof.


 


“Hot Services Replacement
Manager Fees” with respect to any Payment Date, means the fees, if any,
payable to the Replacement Manager for rendering certain “Hot Back-Up Services”
pursuant to the Replacement Management Agreement and that certain fee letter
entered into in connection therewith.


 


“Hypothetical Parent”
means an entity whose only assets are the interests in the Securitization
Entities owned by NuCO2, subject to tax in all
jurisdictions in which NuCO2 is subject to tax and having all
of the same tax attributes (including, without limitation, entity
classification, taxable year, methods of accounting and elections) as NuCO2.


 


“Indebtedness” as
applied to any Person, means, without duplication, (a) all indebtedness
for borrowed money in any form, including derivatives shown as a liability in
accordance with FAS 133, (b) all Capitalized Lease Obligations incurred by
such Person, (c) notes payable, (d) any obligation owed for all or
any part of the deferred purchase price for property or services, which
purchase price is (i) due more than six months from the date of the
incurrence of the obligation in respect thereof or (ii) evidenced by a
note or similar written instrument (other than (A) an earn-out obligation
until such obligation becomes a liability on the balance sheet of such Person
under GAAP or (B) trade payables incurred in the ordinary course of
business, including by means of a corporate purchasing card program or
e-payables program), (e) all indebtedness secured by any Lien on any
property or asset owned by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to the
credit of that Person and (f) all Contingent Obligations of such Person in
respect of 


 


26

















 


any of the foregoing.
Notwithstanding the foregoing, Indebtedness shall not include any liability for
federal, state, local or other taxes owed or owing to any governmental entity.


 


“Indemnification Amounts”
means amounts paid by NuCO2 pursuant to Section 4.6
of the First Tier Contribution Agreement, as a result of a breach of any
representation or warranty made by NuCO2.


 


“Indenture” means the
Base Indenture, together with all Series Supplements, as amended,
supplemented or otherwise modified from time to time by Supplements thereto in
accordance with its terms.


 


“Indenture Documents”
means, collectively, the Indenture, the Notes, the Account Control Agreements, each
Note Purchase Agreement and any other agreements relating to the issuance or
the purchase of the Notes or the pledge of Collateral under any of the
foregoing.


 


“Indenture Trust Accounts”
means (a) the Collection Account Administrative Accounts, (b) the
Senior Note Interest Reserve Account, (c) the Cash Trap Reserve Account, (d) the
Contributions Reserve Account, (e) the Termination Amount Reserve Account,
(f) the Hedge Payment Account and, if any, and (g) the Enhancement
Payment Account, if any.


 


“Independent Accountants”
means the firm of independent accountants appointed pursuant to the Master
Management Agreement or any successor independent accountant.


 


“Independent Manager”
means a natural Person who, for the five-year period prior to his or her appointment
as the Independent Manager, has not been, and during the continuation of his or
her service will not be: (i) an employee, director, stockholder, partner
or officer of the related NuCO2 Entity or any
of its Affiliates (other than in his or her service as an Independent Manager
or other similar capacities of such NuCO2 Entity or any
of its Affiliates); (ii) a Customer or supplier of the applicable NuCO2 Entity or any of such entity’s Affiliates; or (iii) any
member of the immediate family of a person described in (i) or (ii) above;
provided that notwithstanding the foregoing, an Independent Manager
shall be permitted to serve as an independent manager, independent director or
in another similar capacity of other limited-purpose entities which are now, or
may in the future be, established by any Affiliate of a NuCO2 Entity or any member thereof.


 


“Initial Collection Account Reserve Amount”
means the initial deposit of approximately $1,969,618 made by Master Issuer to
the Collection Account on the Closing Date.


 


“Initial Collection
Account Senior Note Reserve Amount” means, with respect to the first
Payment Date, the product of (x) the sum of (a) the Senior Note
Interest Amount, plus (b) the Class A-2 Senior Note Commitment
Fee Amount, plus (c) the Class A-3 Senior Note Commitment Fee
Amount, multiplied by (y) the quotient 


 


27

















 


obtained by dividing
the number of days between the Closing Date and the first Payment Date
(assuming 30 days in any month) minus 32, by the actual number of days
between the Closing Date and the first Payment Date.


 


“Initial Principal Amount”
means, with respect to any Series or Class (or Subclass) of
Notes, the aggregate initial principal amount of such Series or Class (or
Subclass) of Notes specified in the applicable Series Supplement.


 


“Initial Purchaser”
means UBS Securities LLC.


 


“Initial Series of
Notes” means the Series of Notes (and each Class thereof) issued
on the Closing Date.


 


“Insurance Proceeds”
means the aggregate amount of (a) insurance proceeds for casualty, loss or
business interruption and (b) compensation or other amounts for the
condemnation or taking by eminent domain of any property, received by or on
behalf of any Securitization Entity.


 


“Insurance Proceeds Amounts”
means, for any Payment Date, the Insurance Proceeds that (a) the
Transaction Manager elects to deposit to the Collection Account as “Insurance
Proceeds Amounts” for application in accordance with clause tenth and clause
fifteenth, as applicable, of the Priority of Payments, or (b) that are
no longer Restoration Proceeds.


 


“Insurance Proceeds
Reserve Account” shall have the meaning set forth in Section 5.2(d) of
the Base Indenture.


 


“Intellectual Property”
means any and all of the following in any jurisdiction throughout the world:
Trademarks, Copyrights, Know-How, Patents, Software and all other proprietary
and intellectual property rights, and all registrations and applications for
registration of any of the foregoing.


 


“Interest Period”
means with respect to each Payment Date, a period commencing on and
including the immediately preceding Payment Date and ending on but excluding
such Payment Date; provided that the initial Interest Period will be
from and including the Closing Date to but excluding the Payment Date occurring
in July 2008.


 


“Interest Rate Hedge”
means, with respect to any Series of Notes, any interest rate cap or swap
entered into by the Co-Issuers in connection with the issuance of such Series of
Notes as provided for in the applicable Series Supplement in accordance
with the terms of the Base Indenture.


 


“Interest Rate Hedge
Agreement” means any contract, agreement, instrument or document governing
the terms of any Interest Rate Hedge.


 


28

















 


“Interest Rate Hedge
Provider” means the Person providing any Interest Rate Hedge as permitted
in the applicable Series Supplement.


 


“Investment Company Act”
means the Investment Company Act of 1940, as amended.


 


“Investment Income”
means, with respect to the Collection Account, any other Base Indenture
Account, any Concentration Account, any other Securitization Entity Account and
any Series Accounts, for any Monthly Collection Period the excess, if any,
of (a) the sum of all investment interest and other earnings on such
account during such Monthly Collection Period over (b) any investment
losses incurred in respect of such account during such Monthly Collection
Period.


 


“Investment Property”
shall have the meaning specified in Section 9-102(a)(49) of the
applicable UCC.


 


“IP Holder Contribution
Agreement” means the IP Holder Contribution Agreement, dated as of May 28,
2008, between the Master Issuer and the IP Holder, as amended, supplemented or
otherwise modified from time to time.


 


“IP Holder” means NuCO2 IP LLC, a Delaware limited liability company,
and its successors and assigns.


 


“IP Holder Certificate of
Formation” means the certificate of formation of the IP Holder, dated as of
February 21, 2008, as amended, supplemented or otherwise modified from
time to time.


 


“IP Holder Charter
Documents” means the IP Holder Certificate of Formation and the IP Holder
Operating Agreement.


 


“IP Holder Operating
Agreement” means the Amended and Restated Limited Liability Company
Agreement of the IP Holder, dated as of May 28, 2008, as further amended,
supplemented or otherwise modified from time to time.


 


“IRS” means the U.S.
Internal Revenue Service.


 


“Issuer Subsidiary”,
or collectively “Issuer Subsidiaries”, means the Contract Holder, the
Equipment Holder and the IP Holder and each of their successors and assigns.


 


“Know-How” means all
trade secrets and all other confidential or proprietary know how, inventions,
processes, procedures, methods, techniques, discoveries, non-patentable
inventions, industrial designs, improvements, ideas, designs, models, formulae,
algorithms, patterns, compilations, data collections, drawings, blueprints,
devices, Customer lists, technical information and data, specifications,
research and development information, engineering drawings, operating and
maintenance 


 


29

















 


manuals, recipes, supplier
lists, pricing and cost information, business plans and other similar
information and rights.


 


“Leadership Team”
means the Chief Executive Officer, the Chief Financial Officer, the Chief
Operating Officer, the General Counsel and the Senior Vice President of Sales
and Customer Support of NuCO2, any other position held by an individual with NuCO2 that contains substantially the same
supervisory responsibilities as any of the positions listed above.


 


“Lenders” means,
collectively, the Variable Funding Lenders.


 


“Lien” means, when
used with respect to any Person, any interest in any real or personal property,
asset or other right held, owned or being purchased or acquired by such Person
which secures payment or performance of any obligation, and shall include any
mortgage, lien, pledge, encumbrance, charge, retained security title of a
conditional vendor or lessor, or other security interest of any kind, whether
arising under a security agreement, mortgage, lease, deed of trust, chattel
mortgage, assignment, pledge, retention or security title, financing or similar
statement, or arising as a matter of law, judicial process or otherwise.


 


“Maintenance Equipment” means
equipment owned by the Equipment Holder and utilized to provide the Maintenance
Services.


 


“Maintenance Services” means on-site
and off-site maintenance and refurbishment of Customer Location Equipment.


 


“Majority” with
respect to any Series of Notes, the Holders of more than 50% of the
Aggregate Outstanding Principal Amount of such Series of Notes (excluding
any Notes held by any Co-Issuer or any Affiliate of any Co-Issuer), for which
purpose the Series 2008-1 Class A-2 Notes, Series 2008-1 Class A-3
Notes and any other variable funding Series of Notes will be deemed to be
fully drawn.


 


“Master Issuer” means
NuCO2 Funding LLC, a Delaware limited liability
company, and its successors and assigns.


 


“Master Issuer
Certificate of Formation” means the certificate of formation of the Master
Issuer, dated as of February 21, 2008, as amended, supplemented or
otherwise modified from time to time.


 


“Master Issuer Charter
Documents” means the Master Issuer Certificate of Formation and the Master
Issuer Operating Agreement.


 


“Master
Issuer Operating Agreement” means the Amended and Restated Limited
Liability Company Agreement of the Master Issuer, dated as of May 28,
2008, as further amended, supplemented or otherwise modified from time to time.


 


30

















 


“Master Issuer Trustee
Accounts” shall have the meaning set forth in Section 5.10 of
the Base Indenture.


 


“Master Management
Agreement” means the Master Management Agreement, dated as of  May 28, 2008, between NuCO2, as the Master Manager, and
the Transaction Manager, as amended, supplemented or otherwise modified from
time to time.


 


“Master Management Fee”
means, with respect to each Payment Date, an amount equal to the sum of (a) for
strategic and advisory services related to management, a fee of $874,000 per
annum and (b) for strategic and advisory services related to servicing, a
fee of $50,000 per annum.  These two
components of the Master Management Fee will each be adjusted annually based on
the CPI.  The Master Management Fee and
the reimbursement of expenses of the Master Manager shall be payable solely
from amounts received by the Transaction Manager pursuant to the terms of, and
to the extent amounts are available for payment under, the Priority of Payments.


 


“Master Management
Standard” shall have the meaning set forth in the Master Management
Agreement.


 


“Master Manager”
means NuCO2 (or any replacement) acting as “Master Manager”
under the Master Management Agreement, and any successor thereto.


 


“Master Manager Default”
means any of the events set forth in Section 7.1 of the Master
Management Agreement.


 


“Master Manager Interest
Coverage Ratio” means, at any time of determination, an amount equal to the
ratio of (a) Consolidated EBITDA for the most recently ended twelve-month
period for which financial statements are available, divided  by (b) the
Consolidated Interest Expense for such period and, without duplication,
amortization of debt issuance costs, debt discount or premium and other
financing fees and expenses incurred by NuCO2 or any of its
Subsidiaries for such period (determined on a pro forma basis to give effect to
the application of the proceeds of the proposed Indebtedness).


 


“Master Manager Leverage
Ratio” means, at any time of determination, an amount equal to the ratio of
(a) the consolidated Indebtedness of NuCO2 and any of
its Subsidiaries (on a pro forma basis for Indebtedness proposed to be incurred
or repaid), less cash and cash equivalents and less any Indebtedness
attributable to Permitted Interest Rate Hedges, as of the last day of the
immediately preceding twelve-month period for which financial statements are
available, divided by (b) Consolidated EBITDA for the immediately
preceding twelve-month period for which financial statements are available.


 


“Master Manager
Termination Event” means the occurrence of an event specified in Section 7.2
of the Master Management Agreement.


 


31

















 


“Material Adverse Effect”
means, with respect to any occurrence, event or condition, individually or in
the aggregate, and including, without limitation, any previously undisclosed
environmental liability:


 


(a) a material adverse
effect on the condition (financial or otherwise), business, properties,
prospects, profits or operations of the Co-Issuers;


 


(b) a material adverse
effect on the ability of the Co-Issuers to perform their payment and other
obligations pursuant to the Indenture Documents or the ability of the Master
Manager to perform its obligations pursuant to the Master Management Agreement;


 


(c) a material adverse
effect on the ability of NuCO2 to perform its material
obligations under any of the Related Documents;


 


(d) a material adverse
change in or effect on (i) the enforceability of any material terms of the
Customer Contracts taken as a whole, (ii) the likelihood of the payment of
all amounts due and payable by the Customers under the terms of the Customer
Contracts taken as a whole or (iii) the value of the Customer Contracts
and/or the Customer Collections payable under the Customer Contracts taken as a
whole;


 


(e) a material adverse
change in or effect on (i) the enforceability of the Securitization IP
taken as a whole or any material part of the Securitization IP, (ii) the
value of the Securitization IP taken as a whole, (iii) the transferability
or the transfer of any material portion of the Securitization IP to the IP
Holder or the ownership thereof by the IP Holder or any Additional IP Holder or
(iv) the validity, status, perfection or priority of the Lien in any
material part of the Securitization IP required under the Base Indenture; or


 


(f) a material adverse
effect on (i) the validity or enforceability of any Related Document or
the rights and remedies of the Co-Issuers, the Master Manager, the Replacement
Manager, the Trustee, the Administrative Agent, the Holders or the Control
Party under or with respect to any Related Document or (ii) the validity,
status, perfection or priority of the Lien of the Trustee in any material
portion of the Collateral.


 


“Miscellaneous Equipment”
means carbon dioxide detectors and any other Equipment (not including Bulk CO2 Tanks and Nitrogen Generators) sold by the
Co-Issuers to their Customers.


 


“Monthly Collection
Period” means, with respect to any Payment
Date, the calendar month preceding the calendar month in which such Payment
Date occurs, or for the first Payment Date, the period from and including the
Cut Off Date through and to the end of June, 2008.  Any reference to a Monthly Collection Period
relating to a Payment Date means the Monthly Collection Period most recently
ended prior to such Payment Date.


 


32

















 


“Monthly Manager’s
Certificate” shall have the meaning specified in Section 4.1(b) of
the Base Indenture.


 


“Moody’s” means Moody’s
Investors Service, Inc. or any successor thereto.


 


“Multiemployer Plan”
means any “multiemployer plan” as defined in Section 4001 of ERISA.


 


“Net Cash Flow”
means, with respect to any Payment Date and the Monthly Collection Period
relating to such Payment Date, an amount equal to the excess, if any, of


 


(a) the Adjusted
Customer Collections for each Weekly Allocation Date during such Monthly
Collection Period (excluding Termination Amounts), plus the Customer
Location Equipment Resale Revenues deposited to the Concentration Account
during the Weekly Collection Periods immediately preceding each Weekly
Allocation Date occurring during such related Monthly Collection Period, plus
Contributions made during such Monthly Collection Period; provided that
such Contributions shall be excluded for purposes of (i) the calculation
of the One-Year DSCR, (ii) the calculation of the Pro-Forma DSCR, (iii) the
calculation of the Three-Month DSCR for purposes of determining the end of a Series 2008-1
Cash Trapping Period, (iv) the calculation of the Three-Month DSCR for
purposes of determining whether the applicable Senior Note Interest Reserve
Required Amount shall be decreased or increased, and (v) the calculation
of the Three-Month DSCR for purposes of determining whether an Event of Default
has occurred, over


 


(b) the sum of (i) the
SPE Operating Expenses paid on each Payment Date with respect to such Monthly
Collection Period, plus (ii) the Transaction Management Fee paid on
each Payment Date to the Transaction Manager with respect to such Monthly
Collection Period, plus (iii) all reimbursements, if any, paid to
the Transaction Manager during such Monthly Collection Period, plus (iv) the
Equipment Holder Operating Expense Fees paid during such Monthly Collection
Period, plus (v) the Product and Lease Expenses paid during such
Monthly Collection Period.


 


“New Class A-2
Customer Contract”  means, with
respect to any Payment Date, any Class A-2 Customer Contract entered into
during the related Monthly Collection Period.


 


“New York Uniform
Commercial Code” means the Uniform Commercial Code as in effect in the
State of New York from time to time.


 


“Nitrogen
Generator” shall have the meaning given under the definition of
“Nitrogen Generator Plan” in this Base Indenture Definitions List.


 


33

















 


“Nitrogen
Generator Plan” means a plan under a Customer Contract pursuant to
which a Customer pays a flat monthly fee for
the lease, installation and maintenance of nitrogen generators (each, a “Nitrogen
Generator”).


 


“Non-U.S. IP Rights Agreement” means the
Non-U.S. Intellectual Property Rights Agreement, dated as of the Closing Date,
entered into by and among the IP Holder, the Master Issuer, the Contract
Holder, the Equipment Holder and the Master Manager.


 


“Note Insurance Agreement”
means any insurance agreement pursuant to which an Insurer issues a Policy to
insure or financially guarantee the payment of principal of or interest on any Class or
Series of Notes, as specified in the applicable Series Supplement.


 


“Note Make Whole Premium”
means, with respect to (i) the Series 2008-1 Notes, the Series 2008-1
Note Make Whole Premium (as defined in the Series 2008-1 Supplement), and (ii) any
additional Series of Notes, the meaning specified in the related Series Supplement.


 


“Note Owner” means,
with respect to a Book-Entry Note, the Person who is the beneficial owner of
such Book-Entry Note, as reflected on the books of the Clearing Agency that
holds such Book-Entry Note, or on the books of a Person maintaining an account
with such Clearing Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency).


 


“Note Purchase Agreement”
means a Variable Funding Note Purchase Agreement or a Term Note Purchase
Agreement.


 


“Note Rate” or “Note
Interest Rate” means, with respect to any Series or any Class of
any Series of Notes, the annual rate at which interest (other than
contingent additional interest) accrues on the Notes of such Series or
such Class of such Series of Notes (or the formula on the basis of
which such rate shall be determined) as stated in the applicable Series Supplement.


 


“Note Register” shall
have the meaning set forth in Section 2.5(a) of the Base
Indenture.


 


“Noteholder” and “Holder”
means the Person in whose name a Note is registered in the Note Register.


 


“Noteholders’ Statement”
means, with respect to any Series of Notes, a statement substantially in
the form of an Exhibit D to the applicable Series Supplement.


 


“Notes” shall have
the meaning specified in the recitals to the Base Indenture.


 


34














 


“Notice Triggering
Customer Contract Disposition” means, as of any date of determination, a
Disposition of a Customer Contract on any day on which (x) the Customer
Contract Aggregate Disposition Amount as of such date exceeds (y) the
Notice Triggering Customer Contract Disposition Amount as of such date.


 


“Notice Triggering
Customer Contract Disposition Amount” means, as of any date of
determination, an amount equal to 5% of the aggregate revenue (measured in
accordance with GAAP) received on all Customer Contracts during the immediately
preceding twelve-month period.


 


“NuCO2” means NuCO2 Inc., a Florida corporation.


 


“Obligations” means (a) all
principal, interest and premium, if any, at any time and from time to time,
owing by the Co-Issuers on the Notes, (b) all other obligations, covenants
and liabilities of the Co-Issuers arising under, or payments otherwise provided
to be made pursuant to, the Indenture, the Notes or any other Indenture
Document and (c) the obligation of the Co-Issuers to pay all fees and
expenses to the Trustee, the Registrar, the Paying Agent and the Administrative
Agent when due and payable as provided in the Indenture.


 


“Obsolete Property
Disposition” means any sale or other disposition of an interest in any of
the Securitization Entities’ (a) inventory, equipment, furniture, fixtures
and other assets (other than Intellectual Property) deemed by the Master
Manager to be obsolete, worn out or no longer useful in the ordinary course of
business in accordance with the Master Management Standard, including trade-ins
of equipment so long as such equipment is replaced, concurrently, by like-kind
equipment in an effort to upgrade the Securitization Entities’ equipment or (b) in
connection with the acquisition of another business, newly-acquired inventory,
equipment, furniture, fixtures and other assets (other than the Intellectual
Property), which the Master Manager deems not useful to the Bulk Gases Business
in accordance with the Master Management Standard, provided, in the case
of clause (b), that the Master Issuer (or the Master Manager on behalf of the
Master Issuer) has given written notice to the Trustee and the Control Party
within 60 days of acquiring such assets (and prior to selling or otherwise
disposing of such assets) of its intention to sell or otherwise dispose of such
assets within 60 days of such notice.


 


“Offering Memorandum”
means, in relation to any Series of Notes, the offering memorandum
relating to such Series of Notes, if any.


 


“Officer’s Certificate”
means a certificate signed by an Authorized Officer of each Co-Issuer.


 


“One-Month LIBOR”
means, for any Interest Period, the London interbank offered rate for
Eurodollar deposits for one month which appears on the page of the Reuters
screen which displays an average British Bankers Association Interest
Settlement Rate (such page currently being Reuters Screen LIBOR01 Page)
(or such other page as may replace such page on that service for the
purpose of displaying London interbank offered rates of major banks, or if such
service is no longer offered, such other 


 


35

















 


service for displaying LIBOR
or comparable rates as may be selected by the Indenture Trustee) as of 11:00 a.m.,
London time, on the second Eurodollar Business Day prior to the first day of
such Interest Period. If such rate does not appear on such page of any
such service, the rate will be determined on the basis of the rates at which
deposits in U.S. Dollars are offered by the reference banks (which will be
three major banks that are engaged in transactions in the London interbank
market, selected by the Indenture Trustee) as of 11:00 a.m., London time,
on the second Eurodollar Business Day prior to the first day of such Interest
Period to prime banks in the London interbank market for a period of one month
in amounts approximately equal to the principal amount of the relevant Class of
Notes then outstanding. The Trustee will request the principal London office of
each of the reference banks to provide a quotation of its rate. If at least two
such quotations are provided, the rate will be the arithmetic mean of the
quotations. If on such date fewer than two quotations are provided as
requested, the rate will be the arithmetic mean of the rates quoted by two or
more major banks in New York City, selected by the Trustee, as of 11:00 a.m.,
New York City time, on such date for loans in U.S. Dollars to leading European
banks for a period of one month in amounts approximately equal to the principal
amount of the relevant Class of Notes then outstanding. If no such
quotations can be obtained, the rate will be the One-Month LIBOR for the prior
Interest Period.


 


“One-Year DSCR”
means, with respect to each Payment Date, the ratio calculated by dividing
(i) the Net Cash Flow during the related Monthly Collection Period and the
prior eleven Monthly Collection Periods (excluding Contributions) by (ii) the
Debt Service due on such Payment Date and the immediately preceding eleven
Payment Dates.


 


“Operating Agreement”
means any one or more, depending on the context in which it is used, of the
Co-Issuers’ Operating Agreements and any Additional Securitization Entity
Operating Agreement.


 


“Opinion of Counsel”
means a written opinion from legal counsel who is reasonably acceptable to the
Trustee.  The counsel may be counsel to
the Securitization Entities or NuCO2.


 


“Ordinary Disposition
Amount” means, as of any date of determination, (i) for Customer
Contracts, an amount equal to 10% of the aggregate revenue (measured in
accordance with GAAP) received on all Customer Contracts during the immediately
preceding twelve month period, and (ii) for Bulk CO2 Tanks and Nitrogen Generators, an amount equal
to 2% of the total number of all Bulk CO2 Tanks and
Nitrogen Generators owned by the Securitization Entities on the first day of
the immediately preceding twelve month period.


 


“Other Collections”
means any amounts deposited into a Concentration Account that are not readily
identifiable as Investment Income earned with respect to amounts on deposit in
any Concentration Account.


 


“Outstanding” means
with respect to the Notes, all Notes theretofore authenticated and delivered
under the Indenture, except (a) Notes theretofore cancelled or 


 


36

















 


delivered to the Registrar
for cancellation, (b) Notes which have not been presented for payment but
funds for the payment of which are on deposit in the appropriate account and
are available for payment in full of such Notes and (c) Notes in exchange
for or in lieu of other Notes which have been authenticated and delivered
pursuant to the Indenture unless proof satisfactory to a Trust Officer is
presented that any such Notes are held by a purchaser for value.


 


“Outstanding Principal
Amount” means, with respect to each Series of Notes, the amount
calculated in accordance with the applicable Series Supplement.


 


“Parent” means NuCO2 Parent Inc., a Delaware
corporation.


 


“Patents” means all
United States and non-U.S. patents and inventions (whether or not patentable or
reduced to practice) described and claimed therein, patent applications,
divisions, continuations, continuations-in-part, extensions, provisional patent
applications, reexaminations, and reissues thereof, and improvements thereto.


 


“Paying Agent” shall
have the meaning specified in Section 2.5(a) of the Base Indenture.


 


“Payment Date” means
the 25th day of each calendar month or, if such day is not a Business Day, the
next succeeding Business Day, commencing on July 25, 2008.


 


“Permitted Asset
Disposition” shall have the meaning set forth in Section 8.16
of the Base Indenture.


 


“Permitted Hedges” of
any Co-Issuer means (i) each Permitted Interest Rate Hedge and (ii) any
other Interest Rate Hedge required to be treated as “Indebtedness” under clause
(a) of the definition of that term with respect to which the Co-Issuers
have received a Rating Agency Confirmation Letter, and that conforms to the
terms considered in such Rating Agency Confirmation Letter (provided
that the aggregate notional amount of all Permitted Hedges in effect at any
time shall not exceed $50,000,000).


 


“Permitted Holder”
means the collective reference to the following:


 


(a) Aurora Equity
Partners III L.P. and Aurora Overseas Equity Partners III L.P. (together, the “Limited
Partnerships”);


 


(b) Aurora Capital
Partners III L.P. and Aurora Overseas Advisors Capital Partners III L.P.
(together, the “General Partners”);


 


(c) Aurora Advisors III
LLC and Aurora Overseas Advisors III LLC (together, the “Ultimate General
Partners”);


 


37

















 


(d) any limited
partners of the Limited Partnerships, any limited partners of the General
Partners or any Controlled Investment Affiliate of any or more of such limited
partners, provided that any such limited partner or Controlled
Investment Affiliate grants an irrevocable proxy to any of the Limited
Partnerships or the General Partners with respect to any and all matters
regarding Parent and NuCO2;


 


(e) any managing
director or, consultant to or employee of Aurora Management Partners LLC or
NuCO2, provided
that any such managing director, consultant or employee grants an irrevocable
proxy to any of the Limited Partnerships or the General Partners with respect
to any and all matters regarding Parent and NuCO2;


 


(f) any member of the
advisory board of Aurora Management Partners LLC, provided that any such
member grants an irrevocable proxy to any of the Limited Partnerships or the
General Partners with respect to any and all matters regarding Parent and NuCO2; or


 


(g) any Affiliate of
Aurora Management Partners LLC, provided that any such Affiliate grants
an irrevocable proxy to any of the Limited Partnerships or the General Partners
with respect to any and all matters regarding Parent and NuCO2.


 


“Permitted Interest Rate
Hedge” means an Interest Rate Hedge with respect to which (i) the
Master Issuer is the fixed rate payor, (ii) the Hedge Counterparty is the
floating rate payor, (iii) the floating rate is One-Month LIBOR, (iv) the
notional amount does not exceed $50,000,000 and (v) the expiration date is
not later than twelve months after the trade date of such Interest Rate Hedge.


 


“Permitted Investments”  means
any one or more negotiable instruments or securities, purchased at or for less
than their par value, payable in Dollars, issued by an entity organized under
the laws of the United States of America or any state thereof (or by the United
States of America) and represented by instruments in bearer or registered
form or in book-entry form which evidence:


 


(a)           obligations that are direct obligations the full and
timely payment of which is to be made by, or obligations that are fully
guaranteed as to principal and interest by, the United States of America other
than financial contracts whose value depends on the values or indices of asset
values; provided that each such obligation is (i) backed by the
full faith and credit of the United States of America, (ii) has a
predetermined, fixed amount of principal due at maturity (that cannot vary or
change) and (iii) either (A) bears interest at a fixed rate or
at an interest rate tied to a single interest rate index plus a single fixed
spread or (B) is a Treasury Bill or similar instrument that does not bear
interest but is instead sold at a discount at the time it is originally issued;


 


(b)           demand deposits of, time deposits in, or certificates of
deposit issued by, any depositary institution or trust company incorporated
under the laws of the United States of America or any state thereof whose
short-term debt is rated in the highest short-term debt rating category
respectively by any two of (i) Moody’s, (ii) S&P and (iii) Fitch,
and which is subject to supervision and examination by federal or state 


 


38

















 


banking or depositary
institution authorities; provided, however, that at the time of
the investment the long-term unsecured debt obligations (other than such
obligations whose rating is based on collateral or on the credit of a Person
other than such institution or trust company) of such depositary
institution or trust company shall have a credit rating from any two of (i) S&P,
(ii) Moody’s and (iii) Fitch of “A”, “A2” or “A”, respectively;


 


(c)           commercial paper (i) rated by any two of (x) S&P,
(y) Moody’s and (z) Fitch, in the highest short-term debt rating
category, (ii) having a predetermined fixed amount of principal due at
maturity (that cannot vary or change) and (iii) (A) bearing
interest at a fixed interest rate or an interest rate tied to a single interest
rate index plus a single fixed spread or (B) not bearing interest and that
is sold at a discount at the time it is originally issued;


 


(d)           bankers’ acceptances issued by any depositary institution
or trust company described in clause (b) above;


 


(e)           investments in money market funds (including money market
funds managed by the Trustee or its Affiliates) that have as one of their
investment objectives the maintenance of a constant net asset value with a
rating of any two of (i) “Aaa” by Moody’s, (ii) “AAA” by S&P and (iii) “AAA”
by Fitch, or otherwise approved in writing by the Control Party and the Rating
Agencies; and


 


(f)            any other instruments or securities, if approved in
writing by the Control Party and the Rating Agencies confirm in writing that
the investment in such instruments or securities will not adversely affect any
ratings with respect to any Series of Notes;


 


provided that (i) no such
investment shall evidence either the right to receive (A) only interest
with respect to such investment or (B) in the case of an interest-bearing
obligation, a yield to maturity greater than 120% of the yield to maturity at
par of the underlying obligation (ii) each Permitted Investment (A) is
at all times available for withdrawal or liquidation at par or (B) matures
prior to the immediately succeeding Payment Date, (iii) no such investment
shall have the “r” symbol attached to its rating and (iv) no payments on
any such investment shall be subject to withholding tax.  Permitted Investments may be purchased by or
through the Trustee or its Affiliates.


 


“Permitted Liens”
means (a) Liens for (i) taxes, assessments or other governmental
charges not delinquent or (ii) taxes, assessments or other charges being
contested in good faith and by appropriate proceedings and with respect to
which adequate reserves have been established, and are being maintained, in
accordance with GAAP, (b) all Liens created or permitted under the Related
Documents in favor of the Trustee for the benefit of the Secured Parties, (c) Liens
existing on the Closing Date, which shall be released on such date, (d) deposits
or pledges made (i) in connection with health insurance or casualty
insurance maintained in accordance with the Related Documents, (ii) to
secure the performance of bids, tenders, contracts or leases, (iii) to
secure workers’ compensation or unemployment insurance self insurance
arrangements, statutory obligations or surety or appeal bonds or (iv) to
secure indemnity, performance 


 


39

















 


or other similar bonds in
the ordinary course of business of any Securitization Entity, (e) Liens of
carriers, warehouses, mechanics and similar Liens, in each case under this
clause (e) (i) for amounts not delinquent for a period of more than
60 days or (ii) being contested in good faith by any Securitization Entity
in appropriate proceedings (so long as such Securitization Entity shall, in
accordance with GAAP, have set aside on its books adequate reserves with
respect thereto), (f) restrictions under federal, state or foreign securities
laws on the transfer of securities, (g) easements, rights-of-way,
restrictions or other similar Liens under reciprocal easement, operating or
similar agreements in respect of real property, encroachments, and other minor
defects or irregularities in title, in each case which do not and will not
interfere in any material respect with the ordinary conduct of the business of
NuCO2 or any of its Subsidiaries, (h) any (i) interest
or title of a lessor or sublessor under any lease of real estate permitted
hereunder, (ii) restriction or encumbrance that the interest or title of
such lessor or sublessor may be subject to, or (iii) subordination of the
interest of the lessee or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (ii), (i) Liens solely on
any cash earnest money deposits made by a Securitization Entity in connection
with any purchase of assets permitted hereunder, (j) purported Liens
evidenced by the filing of precautionary UCC financing statements relating
solely to operating leases of personal property entered into in the ordinary
course of business or as otherwise contemplated by the Related Documents, (k) Liens
securing Capitalized Lease Obligations permitted by clause (iv) of Section 8.13
of the Base Indenture; provided that any such Lien shall encumber only
the assets acquired with the proceeds of such Capitalized Lease Obligations, (l) leases
and subleases of property granted to others in the ordinary course of business
not interfering in any material respect with the business of the Securitization
Entities, taken as a whole, (m) Liens in favor of Hedge Counterparties
granted pursuant to Permitted Hedges and (n) Liens created in the ordinary
course of business in favor of banks or other financial institutions over
credit balances of any bank account held at such bank/financial institution so
long as such Liens are subordinated or waived in the applicable Account
Agreements.


 


“Person” means any
natural person, corporation, business trust, joint venture, association,
company, partnership, limited liability company, joint stock company, trust,
unincorporated organization or Governmental Authority or other entity.


 


“Plan” means any “employee
pension benefit plan”, as such term is defined in ERISA, which is subject to
Title IV of ERISA or subject to Section 412 of the Code including any
Multiemployer Plan.


 


“Pledge Agreement”
means the Pledge Agreement, dated as of  May 28,
2008, by and between NuCO2, as the pledgor, and the Trustee, as the pledgee, as amended,
supplemented or otherwise modified from time to time.


 


“PORTAL securities”
means securities that are currently designated and authorized for inclusion in
the PORTAL® Market operated by the Nasdaq Stock Market LLC.


 


40

















 


“Post-Adjusted
Repayment Date DSCR” means, with respect to the Series 2008-1 Notes
and any Payment Date following the Series 2008-1 Adjusted Repayment Date,
the ratio calculated by dividing (A) the Net Cash Flow for the
related Monthly Collection Period and the immediately preceding two Monthly
Collection Periods by (B) the aggregate amount of principal and interest
that would be payable in the succeeding three Monthly Collection Periods on a
loan that has a fully amortizing level principal and interest payment schedule
assuming (i) the initial principal balance of such loan was equal to the
Aggregate Outstanding Principal Amount of all the Series 2008-1 Class A
Notes as of the date of such calculation, (ii) the remaining term to
maturity of that loan was equal to the remaining term from the date of such
calculation to the end of the 25th year following the Closing Date and (iii) the
interest rate on that loan was equal to the then-current weighted average
interest rate on the Series 2008-1 Class A Notes, weighted based on
outstanding principal balances of each of the Series 2008-1 Class A
Notes (excluding any rate of any Senior Contingent Additional Interest on all Series 2008-1
Class A Notes) as of the date of such calculation.


 


“Preferred
Equity Interest” means the preferred membership interests in the Employee
Company owned by the Master Issuer.


 


“Principal Terms”
shall have the meaning specified in Section 2.3 of the Base
Indenture.


 


“Priority of Payments”
means the allocation and payment obligations described in Section 5.13
of the Base Indenture as supplemented by the allocation and payment obligations
with respect to each Series of Notes described in each Series Supplement.


 


“Proceeding” means
any suit in equity, action at law or other judicial or administrative
proceeding.


 


“Proceeds” shall have
the meaning specified in Section 9-102(a)(64) of the applicable UCC.


 


“Product and Lease
Expenses” means an amount equal to the sum of (a) the raw materials
cost of Bulk Gases offered for sale by the Contract Holder, (b) the
Delivery Truck Lease expenses, (c) the Real Estate Lease expenses and the
Use and Occupancy License expenses, (d) the cost of high pressure cylinder
rentals and (e) to the extent of Customer Location Equipment Resale
Revenues received in the Concentration Account during the applicable preceding
Weekly Collection Period, the related Customer Location Equipment Costs.


 


“Pro Forma Adjusted Customer Collections”
means, with respect to each Payment Date, the sum of (a) the Adjusted
Customer Collections (excluding Collections attributable to the New Class A-2
Customer Contracts at such time) for each Weekly Allocation Date occurring
during the related Monthly Collection Period and the two immediately preceding
Monthly Collection Periods; provided that for purposes of this clause
(a), “Collections” shall exclude the related Termination Amounts and Asset 


 


41

















 


Disposition Amounts; and (b) the product of (i) the
Adjusted Customer Collections, if any, attributable to the New Class A-2
Customer Contracts (excluding the related Termination Amounts) for the related
Monthly Collection Period, and (ii) three.


 


“Pro Forma Adjusted Net Cash Flow” means, with
respect to each Payment Date, an amount equal to the excess, if any, of (a) the
related Pro Forma Adjusted Customer Collections, plus the Customer Location
Equipment Resale Revenues deposited to the Concentration Account during the
Weekly Collection Periods immediately preceding each Weekly Allocation Date
occurring during the related Monthly Collection Period and the two immediately
preceding Monthly Collection Periods, over (b) the sum of (i) the SPE
Operating Expenses paid on such Payment Date and the two immediately preceding
Payment Dates, plus (ii) the Transaction Management Fee paid on such
Payment Date and the two immediately preceding Payment Dates, plus (iii) all
reimbursements, if any, paid to the Transaction Manager on such Payment Date
and the two immediately preceding Payment Dates, plus (iv) the sum of (x) the
Equipment Holder Operating Expense Fees (excluding any Equipment Holder
Operating Expense Fees attributable to the New Class A-2 Customer
Contracts) withdrawn from the Equipment Holder Master Account during the
related Monthly Collection Period and the two immediately preceding Monthly
Collection Periods, and (y) the product of (I) any Equipment Holder
Operating Expense Fees attributable to the New Class A-2 Customer
Contracts withdrawn from the Equipment Holder Master Account during the last 30
days, and (II) three (but in no event greater than the Pro Forma Equipment
Holder Operating Expense Cap); plus (v) the product of (x) the
Product and Lease Expenses withdrawn from the Equipment Holder Master Account
during the last 30 days, and (y) three.


 


“Pro Forma Debt Service” means, with respect to each Payment Date, an amount equal to the sum of (a) the
Debt Service relating to the Series 2008-1 Notes due on such Payment Date
and the two immediately preceding Payment Dates, plus (b) the
product of (i) three, and (ii) the net increase in interest expense
(adjusted for the corresponding reduction in commitment fees) on the Series 2008-1
Class A-2 Notes for the immediately following Interest Period.


 


“Pro Forma DSCR” with
respect to each Payment Date, an amount equal to the ratio calculated by dividing
(a) the related Pro Forma Adjusted Net Cash Flow, by (b) the related
Pro Forma Debt Service.


 


“Pro Forma Equipment
Holder Operating Expense Cap”  means, on any Payment Date, an amount
equal to the sum of (i) $1,001,000, subject to annual increases to adjust
for any increase in the CPI, and (ii) 31.13% of the related Pro Forma
Adjusted Customer Collections.


 


“Pro Forma Tax Amount”
means the hypothetical tax, as reasonably determined by the Master Manager,
that a Hypothetical Parent (or its owners, to the extent the income of the
Hypothetical Parent is taxable to its owners) would be required to pay to all
tax authorities.  For the purposes of
this determination, any amount paid by any Securitization Entity to Employee
Company shall be treated as a compensation expense.


 


42

















 


“Property Tax
Reimbursements” means, on any Weekly Allocation Date, any amounts owed to
the Equipment Holder by the Contract Holder for property taxes advanced by the
Equipment Holder on behalf of the Customers during the preceding Weekly
Collection Period.


 


“PTO” means the U.S. Patent and Trademark
Office and any successor U.S. federal office.


 


“Qualified Institution”
means a depository institution organized under the laws of the United States of
America or any state thereof or incorporated under the laws of a foreign
jurisdiction with a branch or agency located in the United States of America or
any state thereof and subject to supervision and examination by federal or
state banking authorities which at all times shall have the Required Rating
and, in the case of any such institution organized under the laws of the United
States of America, whose deposits are insured by the FDIC.  On the Closing Date, Bank of America, N.A. is
a Qualified Institution.


 


“Qualified Trust
Institution” means an institution organized under the laws of the United
States of America or any state thereof or incorporated under the laws of a
foreign jurisdiction with a branch or agency located in the United States of
America or any state thereof and subject to supervision and examination by
Federal or state banking authorities which at all times (i) is authorized
under such laws to act as a trustee or in any other fiduciary capacity, (ii) has
capital, surplus and undivided profits of not less than $250,000,000 as set
forth in its most recent published annual report of condition and (iii) has
a long term deposits rating of not less than two of the following: “A2” by
Moody’s, “A” by S&P, and “A” by Fitch.


 


“Quarterly Customer
Contracts Report” shall have the meaning specified in Section 4.1(h) of
the Base Indenture.


 


“Rating Agencies” or “Rating
Agency” with respect to any Series of Notes, shall have the meaning specified
in the applicable Series Supplement.


 


“Rating Agency Condition” means, with respect to any prospective action or
occurrence, a condition that shall be satisfied if each Rating Agency then
rating any Notes then Outstanding (or, if so specified, the relevant Rating
Agency) notifies the Trustee in writing that such action or occurrence, as the
case may be, will not result in a withdrawal or reduction of either (i) the
initial ratings issued on the applicable issuance dates with respect to such
Outstanding Notes or, (ii) if such Outstanding Notes were upgraded
following their applicable issuance dates, the then-current rating on the
Notes, without giving effect to any Enhancement, by S&P, Moody’s or Fitch,
respectively.


 


“Rating Agency
Confirmation Letter” (i) with respect to a new Series of Notes,
refers to written confirmation by the applicable rating agency confirming that
such Notes have been assigned a rating specified in the applicable Series Supplement
and that such ratings are in full force and effect on the such issuance date, (ii) with
respect to existing Notes, refers to written confirmation by the applicable
rating agency confirming 


 


43

















 


that the ratings specified
in the applicable Series Supplement relating to such Notes Outstanding
remain in full force and effect on the issuance date of the new Notes after
giving effect to such issuance and (iii) with respect to existing Notes,
refers to written confirmation by the applicable rating agency confirming that
the ratings specified in the applicable Series Supplement relating to such
Notes Outstanding remain in full force and effect on the issuance date of the
new Notes after giving effect to the occurrence of the events described in
clause (b) or (c), as the case may be, of the definition of “Change of
Control.”


 


“Real Estate Leases”
means the Existing Real Estate Leases and all future lease agreements pursuant to which any
stationary Service Location is leased from third parties and any lease of real
property used in the Bulk Gases Business.


 


“Record Date” means,
with respect to each Payment Date or any date on which payments are permitted
to be made as provided for in the Indenture, the close of business of the last
day of the immediately preceding calendar month.


 


“Registrar” shall
have the meaning set forth in Section 2.5(a) of the Base
Indenture.


 


“Related Documents”
means the Indenture Documents, the Collateral Transaction Documents, the
Account Agreements, any Enhancement Agreement, any Interest Rate Hedge
Agreement and any other agreements entered into, or certificates or
powers-of-attorney delivered, pursuant to the foregoing documents.


 


“Replacement Management
Agreement” means the Replacement Management Agreement, dated as of May 28,
2008 by and among the NuCO2, the Co-Issuers, the Employee Company, the Replacement Manager, the
Administrative Agent and the Trustee.


 


“Replacement Manager”
means Alvarez & Marsal North America, LLC, a Delaware limited
liability company, in its capacity as Replacement Manager pursuant to the
Replacement Management Agreement, and any successor Replacement Manager.


 


“Required Amortization
Amount” means (i) with respect to the Series 2008-1 Notes, the Series 2008-1
Class A-2 Required Amortization Amounts and the Series 2008-1 Class A-3
Required Amortization Amounts, and (ii) with respect to all other Series of
Notes, such amounts as shall be identified in the applicable Series Supplement
as constituting a “Required Amortization Amount.”


 


“Required Rating”
means (i) not less than two of the following short-term certificate of
deposit ratings: “P-1” by Moody’s, “A-1” by S&P, and “A-1” by Fitch, and (ii) not
less than two of the following long-term unsecured debt ratings: “Aa3” by Moody’s,
“AA-” by S&P, and “AA-” by Fitch.


 


“Required Senior
Noteholders”
shall have the meaning given under the definition of “Control Party” in
this Base Indenture Definitions List.


 


44














 


“Required Subordinated
Noteholders”
shall have the meaning given under the definition of “Control Party” in
this Base Indenture Definitions List.


 


“Requirements of Law”
means, with respect to any Person or any of its property, the certificate of
incorporation or articles of association and by-laws, limited liability company
agreement, partnership agreement or other organizational or governing documents
of such Person or any of its property, and any order, law, statute, treaty, rule or
regulation, or determination of any arbitrator or Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject, whether federal, state,
local or foreign (including, without limitation, usury laws, the Federal Truth
in Lending Act and retail installment sales acts).


 


“Restoration Proceeds”
means all Insurance Proceeds deposited in the Insurance Proceeds Reserve
Account and which the Transaction Manager elects to use for purposes of
investment or reinvestment in the restoration or replacement of the property
for which insurance and condemnation proceeds have been received by or on
behalf of the Securitization Entities or for the purpose of purchasing assets
useful in the Bulk Gases Business; provided that if such Insurance
Proceeds have not been so invested or reinvested within 360 days from the time
the Securitization Entities (or the Transaction Manager on behalf of the
Securitization Entities) received such Insurance Proceeds, then upon the
expiration of such 360-day period, such Insurance Proceeds shall be deemed “Insurance
Proceeds Amounts” and deposited by the Transaction Manager to the Collection
Account on the last day of each Monthly Collection Period as Insurance Proceeds
Amounts to be used to pay down principal of the Notes in accordance with the
Priority of Payments.


 


“Rule 144A”
means Rule 144A under the 1933 Act.


 


“S&P” or “Standard &
Poor’s” means Standard & Poor’s Ratings Services, a division of
The McGraw-Hill Companies, Inc., or any successor thereto.


 


“Sales Tax Reimbursements”
means, on any Weekly Allocation Date, any amounts owed to the Equipment Holder
by the Contract Holder for sales taxes advanced by the Equipment Holder on
behalf of the Customers during the preceding Weekly Collection Period.


 


“Second Tier Contribution
Agreements” means the contribution agreements between the Master Issuer and
each of the other Securitization Entities, as amended, supplemented or
otherwise modified from time to time.


 


“Secured Parties”
means the Noteholders and the Trustee in its individual capacity and in its
capacity as trustee for the Noteholders, together with their respective
successors and assigns.


 


“Securities Act”
means the Securities Act of 1933, as amended.


 


45

















 


“Securities Intermediary”
shall have the meaning set forth in Section 5.10 of the Base
Indenture.


 


“Securitization Entities”
means, collectively, the Master Issuer, the Issuer Subsidiaries and any
Additional Securitization Entity.


 


“Securitization Entities
Indemnities” means all indemnification obligations that the Securitization
Entities have to their officers, directors or managers under their Charter
Documents.


 


“Securitization Entity
Account” means each of the Concentration Account, the Equipment Holder
Master Account, the Equipment Holder Operating Account, the Equipment Holder
CAPEX Account, the Insurance Proceeds Reserve Account, and the Tax Reserve
Account.


 


“Securitization IP” means all of the right, title and interest of NuCO2 (and following the transactions contemplated
by the Contribution Agreements, one or more
Securitization Entities) in and to all (i) Existing Securitization IP and (ii) After-Acquired
IP Assets, including, in each case, the right to bring an action at law or in equity for any misappropriation,
infringement, dilution, or violation of, and to collect all damages, settlement
and proceeds relating to, any of the foregoing.


 


“Securitization IP License Agreement” means the
Securitization IP License Agreement, dated as of the Closing Date, between the
IP Holder, as the licensor, and the Contract Holder, as the licensee.


 


“Senior Debt” means
the issuance of Indebtedness under the Indenture by the Co-Issuers that by its
terms (through its alphabetical designation as “Class A” pursuant to the Series Supplement
applicable to such Indebtedness) is senior in the right to receive
interest and principal on such Indebtedness to the right to receive interest
and principal on any Subordinated Debt.


 


“Senior Note Aggregate Contingent Additional
Interest Shortfall Amount” means with respect to any Payment Date, the
excess, if any, of (a) the Senior Note Contingent Additional Interest
Amount accrued on all prior Payment Dates for each Class of Senior Notes
over (b) the aggregate amount of funds that was allocated by the
Co-Issuers for payment of such Senior Note Contingent Additional Interest
Amounts on such prior Payment Dates.


 


“Senior Note Available
Reserve Account Amount” means, as of any date of determination,
collectively, the amount on deposit in the Senior Note Interest Reserve Account
and the amount on deposit in the Cash Trap Reserve Account.


 


“Senior Note Contingent
Additional Interest Account” shall have the meaning set forth in Section 5.9(a)(vii) of
the Base Indenture.


 


46

















 


“Senior Note Contingent
Additional Interest Amount” means (i) with respect to the Series 2008-1
Notes, the Series 2008-1 Class A-1 Contingent Additional Interest,
the Series 2008-1 Class A-2 Contingent Additional Interest and the Series 2008-1
Class A-3 Contingent Additional Interest, each as defined in the Series 2008-1
Supplement, and (ii) with respect to the Senior Notes of each other Series of
Notes, the contingent additional interest specified in the applicable Series Supplement.


 


“Senior Note Interest
Account” shall have the meaning set forth in Section 5.9(a)(i) of
the Base Indenture.


 


“Senior Note Interest
Amount” means with respect to each Payment Date and any Class of
Senior Notes, the aggregate amount of interest due and payable, with respect to
such Interest Period, on such Senior Notes as described in the related Series Supplement;
provided, that any amount identified as a contingent additional interest
amount, an administrative expense or a commitment fee in any Series Supplement
shall under no circumstances be deemed to constitute part of the “Senior Note
Interest Amount.”


 


“Senior Note Interest
Reserve Account” shall have the meaning set forth in Section 5.3 of
the Base Indenture.


 


“Senior Note Interest
Reserve Account Deficit Amount” means, with respect to each Payment Date
for any Class of Senior Notes, the amount, if any, by which (a) the
Senior Note Interest Reserve Account Required Amount exceeds (b) the
amount on deposit in the Senior Note Interest Reserve Account on such date
(after giving effect to any withdrawals therefrom on such Payment Date); provided,
that with respect to any Payment Date that occurs during the Monthly Collection
Period immediately preceding the Series 2008-1 Legal Final Maturity Date,
the Senior Note Interest Reserve Account Deficit Amount shall be zero.


 


“Senior Note Interest
Reserve Account Required Amount” means the aggregate amount of funds
identified in the applicable Series Supplements as constituting a “Senior
Note Interest Reserve Account Required Amount” and required to be maintained on
deposit in the Senior Note Interest Reserve Account pursuant to the terms of
the Indenture.


 


“Senior Note Interest Shortfall Amount” means
with respect to any Payment Date, the excess, if any, of (a) the Senior
Note Interest Amount accrued on all prior Payment Dates for each Class of
Senior Notes over (b) the aggregate amount of funds that was allocated by
the Co-Issuers for payment of such Senior Note Interest Amounts on such prior
Payment Dates.


 


“Senior Note Principal
Payments Account” shall have the meaning set forth in Section 5.9(a)(iv) of
the Base Indenture.


 


“Senior Noteholder”
means any Holder of Senior Notes of any Series.


 


47

















 


“Senior Notes” means
any Series or Class of any Series of Notes issued that are
designated as “Class A” and identified as “Senior Notes” in the applicable
Series Supplement that constitute Senior Debt.


 


“Series 2008-1 Notes”
means the Series 2008-1 Class A Notes together with the Series 2008-1
Class B-1 Notes (each as defined in the Series 2008-1 Supplement).


 


“Series 2008-1
Supplement” means the Series 2008-1 Supplement, dated as of the
Closing Date, by and among the Co-Issuers and U.S. Bank National Association,
as Trustee, Administrative Agent and Securities Intermediary, as amended,
supplemented or otherwise modified from time to time.


 


“Series 2008-1 Term
Note Purchase Agreement” means the Purchase Agreement, dated as of the May 22,
2008, among the Co-Issuers, NuCO2, the
Employee Company and the Initial Purchaser.


 


“Series Account”
means any account or accounts established pursuant to a Series Supplement
for the benefit of a Series of Notes (or any Class thereof).


 


“Series Adjusted
Repayment Date” means, with respect to the Series 2008-1 Notes, the Series 2008-1
Adjusted Repayment Date, and with respect to any other Series of Notes,
the “Adjusted Repayment Date” as set forth in the related Series Supplement.


 


“Series Closing Date”
means, with respect to any Series of Notes, the date of issuance of such Series of
Notes, as specified in the applicable Series Supplement.


 


“Series Distribution
Account” means, with respect to any Series of Notes or any Class of
any Series of Notes, an account established to receive distributions to be
paid to the Noteholders of such Class or such Series of Notes
pursuant to the applicable Series Supplement.


 


“Series Hedge
Payment Amount” means all net amounts payable by the Master Issuer under
Permitted Hedges with respect to a Series of Notes, including any
termination payment thereon payable by the Master Issuer.


 


“Series Legal Final
Maturity Date” means (i) with respect to the Series 2008-1 Notes,
the Series 2008-1 Legal Final Maturity Date (as defined in the Series 2008-1
Supplement), and (ii) with respect to any other Series of Notes, the
legal final maturity date set forth in the related Series Supplement and
identified as a “Series Legal Final Maturity Date.”


 


“Series of Notes”
or “Series” means each series of Notes issued and authenticated pursuant
to the Base Indenture and the applicable Series Supplement.


 


48

















 


“Series Scheduled
Maturity Date” means, with respect to any Series of Notes, the “Scheduled
Maturity Date” set forth in the related Series Supplement.


 


“Series Supplement”
or “Supplement” means (i) with respect to the Series 2008-1
Notes, the Series 2008-1 Supplement, and (ii) with respect to any
other Series of Notes, a supplement to the Base Indenture executed in
conjunction with the issuance of a new Series of Notes and complying (to
the extent applicable) with the terms of Section 2.3 of the
Base Indenture.


 


“Service Location Equipment” means for any
Service Location the large storage tank that is used to receive Bulk
CO2 from large capacity tanker trucks and from
which the Delivery Trucks are filled with Bulk CO2 to complete
the Delivery Services as well as other related equipment and fixtures.


 


“Service Locations” means (i) the
Master Manager’s and the Securitization Entities’ corporate headquarters, (ii) the
refurbishment center, (iii) the disaster recovery center, (iv) the
Call Center and (v) any stationary service locations (from which, inter
alia, Delivery Trucks are dispatched and refilled) or mobile service locations
(including, without limitation, “man-and-truck” Delivery Trucks).


 


“Software” means computer programs, including
in both source code and object code therefor, together with all utilities,
routines, data, databases, firmware, related documentation and explanatory
materials, including any Copyrights, Patents and Know-How contained in any of
the foregoing.


 


“SPE Operating Expenses”
means collectively all expenses incurred by the Securitization Entities and
payable to third parties in connection with the maintenance and operation of
the Securitization Entities (including, without limitation, the Securitization
Entity Accounts) and the transactions contemplated by the Related Documents to
which they are a party, including but not limited to (i) accrued and
unpaid government taxes (other than federal, state and local income taxes),
filing fees and registration fees payable by the Securitization Entities to any
federal, state or local government entities; (ii) the indemnities, if any,
and fees and expenses payable to (A) the Trustee, (B) the Replacement
Manager, (C) the Administrative Agent, the Class A-2 Administrative
Agent and the Class A-3 Administrative Agent, (D) the Rating Agencies
and (E) any independent certified public accountants or external legal
counsel; (iii) Securitization Entities Indemnities; (iv) any
reimbursable expenses owed to the Transaction Manager under the Transaction
Management Agreement and to the Master Manager under the Master Management
Agreement; and (v) fees incurred by the Co-Issuers in connection with the
replacement of the Master Manager or Transaction Manager following any
resignation or removal of the Master Manager or Transaction Manager, as
applicable.


 


“SPE Operating Expenses
Cap” means SPE Operating Expenses of up to $500,000 per year; provided
that the SPE Operating Expenses Cap shall not apply to the payment of the Warm
Services Replacement Manager Fees (during the Warm 


 


49

















 


Replacement Manager Phase)
and the payment of the Hot Services Replacement Manager Fees (during the Hot
Replacement Manager Phase).


 


“Specified Bankruptcy
Opinion Provisions” means the provisions contained in the legal opinions
delivered in connection with the issuance of each Series of Notes relating
to the non-substantive consolidation of the Securitization Entities with either
NuCO2 or the Employee Company.


 


“Subclass” means,
with respect to any Class of any Series of Notes, any one of the
subclasses of Notes of such Class as specified in the applicable Series Supplement.


 


“Subordinated Debt”
means any issuance of Indebtedness under the Indenture by the Co-Issuers that
by its terms (through its alphabetical designation as “Class B” through “Class Z”
pursuant to the Series Supplement applicable to such
Indebtedness) subordinates the right to receive interest and principal on
such Indebtedness to the right to receive interest and principal on any Senior
Notes.


 


“Subordinated Note
Contingent Additional Interest Amount” means for any Interest Period, with
respect to all Subordinated Notes Outstanding, the aggregate amount of
Subordinated Notes Contingent Additional Interest accrued on all such
Subordinated Notes with respect to such Interest Period.


 


“Subordinated Note
Contingent Additional Interest Account” shall have the meaning set forth in
Section 5.9(a)(viii) of the Base Indenture.


 


“Subordinated Note
Interest Account” shall have the meaning set forth Section 5.9(a)(v) of
the Base Indenture.


 


“Subordinated Note
Principal Payments Account” shall have the meaning set forth in Section 5.9(a)(vi) of
the Base Indenture.


 


“Subordinated Notes”
means any Series or Class of any Series of Notes that are
identified as “Subordinated Notes” in the applicable Series Supplement
that constitute Subordinated Debt.


 


“Subordinated Notes
Interest Amount” means with respect to each Payment Date, the aggregate
amount of interest due and payable, with respect to such Interest Period, on
the Subordinated Notes Outstanding (other than the related Contingent
Additional Interest Amount, if any).


 


“Subordinated Note Interest Shortfall Amount”
means with respect to any Payment Date, the excess, if any, of (a) the
Subordinated Note Interest Amount accrued on all prior Payment Dates for each Class of
Subordinated Notes over (b) the aggregate amount of funds that was
allocated by the Co-Issuers for payment of such Subordinated Note Interest
Amounts on such prior Payment Dates.


 


50

















 


“Subsidiary” means,
with respect to any Person (herein referred to as the ‘‘parent’’), any
corporation, partnership, limited liability company, association or other
business entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary
voting power or more than 50% of the general partnership interests are, at the
time any determination is being made, owned, controlled or held by the parent
or (b) that is, at the time any determination is being made, otherwise
controlled, by the parent or one or more Subsidiaries of the parent or by the
parent and one or more Subsidiaries of the parent.


 


“Supplement” means a
supplement to the Base Indenture complying (to the extent applicable) with
the terms of Section 2.3 of the Base Indenture.


 


“Supply Contracts”
means the Existing Supply Contracts together with all other contracts providing for
the supply to the Securitization Entities of gas, equipment or other property
related to the Bulk Gases Business entered into after the Closing Date.


 


“Surplus Account”
means the deposit account established by the Transaction Manager on behalf of
the Master Issuer designated as the “Surplus Account” maintained at Bank of
America, N.A., or another financial institution satisfying the criteria applicable
to the Trustee.


 


“Surplus Amount”
means 100% of the funds available in the Collection Account after payment of clauses
first through twenty-second of the Priority of Payments.


 


“Tax” means (i) any
federal, state, local or foreign income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, environmental,
customs duties, capital stock, profits, documentary, property, franchise,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration, value added,
alternative or add-on minimum, or other tax of any kind whatsoever, including
any interest, penalty, fine, assessment or addition thereto and (ii) any
transferee liability in respect of any items described in clause (i) above.


 


“Tax Opinion” means
an opinion of tax counsel of nationally recognized standing in the United
States experienced in such matters to be delivered in connection with the
issuance of each new Series of Notes to the effect that, for United States
federal income tax purposes, (a) the issuance of such new Series of
Notes will not affect adversely the United States federal income tax
characterization as debt of any Series of Notes Outstanding or Class thereof
that was (based upon an Opinion of Counsel) treated as debt at the time of
their issuance, (b) except with respect to any Additional Securitization
Entity (including Additional Securitization Entities organized with the consent
of the Control Party pursuant to the Base Indenture) that the Master Manager
will treat as a corporation for United States federal income tax purposes, each
of the Co-Issuers (i) has been at all times since formation and will as of
the date of issuance be treated as a disregarded entity and (ii) has not
been at any time since formation and will not as of the date of issuance be
classified as a corporation or as an association taxable as 


 


51

















 


a corporation or publicly
traded partnership taxable as a corporation and (c) such new Series of
Notes will as of the date of issuance be treated as debt.


 


“Tax Payment Deficiency”
means any tax liability of NuCO2 (including
Taxes imposed under Treasury regulation Section 1.1502-6 (or any similar
provision of state, local or foreign law)) attributable to the operations of
the Securitization Entities or their direct or indirect Subsidiaries that
cannot be satisfied by NuCO2 from its available funds.


 


“Tax Reserve Account”
shall have the meaning set forth in Section 5.2(e) of the Base
Indenture.


 


“Tax Reserve Amount”
means for any Payment Date an amount as reasonably determined by the Master
Manager, equal to the portion of the estimated Pro Forma Tax Amount
attributable to the period to which such Payment Date relates. Such Tax Reserve
Amount may be, as reasonably determined by the Master Manager, adjusted to take
into account any differences between the Pro Forma Tax Amount determined on
such Payment Date and the Pro Forma Tax Amount determined on any prior Payment Dates.


 


“Termination Amount
Reserve Account” shall have the meaning set forth in Section 5.6 of
the Base Indenture.


 


“Termination
Amounts” shall have the meaning set forth in the definition of “Customer
Collections” in this Base Indenture Definitions List.


 


“Termination Amounts
Shortfall” shall have the meaning set forth in Section 5.14(l)(i) of
the Base Indenture.


 


“Term Note Purchase
Agreement” means, (i) with respect to the Series 2008-1 Notes,
the Series 2008-1 Class A-1/B-1 Note Purchase Agreement (as defined
in the Series 2008-1 Supplement), as amended, modified or supplemented
from time to time, and (ii) with respect to each other Series of
Notes, such other note purchase agreements similar to the agreements described
in the foregoing clause (i), as the applicable parties shall enter into
from time to time.


 


“Third Party IP License Agreements” means all
licenses, sublicenses, covenants not to sue or permissions, including, the
right to receive royalties or any other consideration, under which any Securitization
Entity licenses from or to any Person the use of any Intellectual Property; provided,
however, that Third Party IP License Agreements do not include the
Securitization IP License Agreement.


 


“Third-Party Matching
Expenses” means any amounts (i) collected by the Master Issuer or any
of its direct or indirect Subsidiaries where such amounts are being collected
by such entity on behalf of a third party (other than any other NuCO2 Entity) or (ii) collected by the Master
Issuer or any of its direct or indirect Subsidiaries which are matched to a
payable due to a third party (other than any other NuCO2 Entity).


 


52

















 


“Three-Month DSCR”
means, with respect to each Payment Date, on or after the third Payment Date
following the Closing Date, the ratio calculated by dividing (i) the
Net Cash Flow received over the related Monthly Collection Period and the two
immediately preceding Monthly Collection Periods by (ii) the Debt
Service due on such Payment Date and on the immediately preceding two Payment
Dates; provided that (A) with respect to the first Payment Date
following the Closing Date, ‘‘Three-Month DSCR’’ shall mean the ratio
calculated by dividing (i) the Net Cash Flow received over the
related Monthly Collection Period by (ii) the Debt Service due on
such Payment Date, and (B) with respect to the second Payment Date
following the Closing Date, ‘‘Three-Month DSCR’’ shall mean the ratio
calculated by dividing (i) the Net Cash Flow received over the
related Monthly Collection Period and the immediately preceding Monthly
Collection Period by (ii) the Debt Service due on such Payment Date
and on the immediately preceding Payment Date.


 


“Trademarks” means
all United States and state trademarks, service marks, trade names, trade
dress, designs, logos, slogans, domain names, and other indicia of source or
origin, whether registered or unregistered, pending registrations and
applications to register the foregoing, and all goodwill of any business
associated or connected therewith or symbolized thereby.


 


“Transaction Management
Agreement” means the Transaction Management Agreement, dated as of  May 28, 2008, by and among the Employee
Company and the Securitization Entities, as amended, supplemented or otherwise
modified from time to time.


 


“Transaction Management
Fee” means, with respect to each Payment Date, an amount equal to the sum
of (a) a management fee of $874,000 per annum and (b) a servicing fee
of $50,000 per annum. The management fee component and the servicing fee
component of the Transaction Management Fee will each be adjusted annually
based on the CPI.


 


“Transaction Management
Standard” shall have the meaning set forth in the Transaction Management
Agreement.


 


“Transaction Manager
Default” means any of the events set forth in Section 7.1 of
the Transaction Management Agreement.


 


“Trust Officer” means
any officer within the corporate trust department of the Trustee, including any
Vice President, Assistant Vice President or Assistant Treasurer of the
Corporate Trust Office, or any trust officer, or any officer customarily
performing functions similar to those performed by the person who at the time
shall be such officers, in each case having direct responsibility for the
administration of this Indenture.


 


“Trustee” means the
party named as such in the Indenture until a successor replaces it in
accordance with the applicable provisions of the Indenture and thereafter means
the successor serving thereunder.  As of
the Closing Date, the Trustee shall be U.S. Bank National Association.


 


53

















 


“U.S. Government
Obligations” means direct obligations of the United States of America, or
any agency or instrumentality thereof for the payment of which the full faith
and credit of the United States of America is pledged as to full and timely
payment of such obligations.


 


“UCC” means the
Uniform Commercial Code as in effect from time to time in the specified
jurisdiction or any applicable jurisdiction, as the case may be.


 


“United States” or “U.S.”
means the United States of America, its fifty states and the District of
Columbia.


 


“Use and Occupancy
License” means any license by NuCO2 in favor of
the Equipment Holder permitting the Equipment Holder to use and occupy a
Service Location for which the related Real Estate Lease has not been assigned
to the Equipment Holder.


 


“Variable Funding
Administrative Agent” means the Person identified as the “Class A-2
Note Administrative Agent” or the “Class A-3 Note Administrative Agent,”
or by such equivalent title, in the applicable Variable Funding Note Purchase
Agreement.


 


“Variable Funding
Administrative Fee Expenses” means, for any Payment Date, the aggregate
amount of any fees owing to the applicable Variable Funding Administrative
Agent pursuant to the applicable Variable Funding Note Purchase Agreement (and
any fee letter entered into in connection therewith) and any amendment expenses
specified in such Variable Funding Note Purchase Agreement) then due and
payable and not previously paid.


 


“Variable Funding Note
Purchase Agreement” means, (i) with respect to the Series 2008-1
Notes (as defined in the Series 2008-1 Supplement), (a) the Series 2008-1
Class A-2 Note Purchase Agreement (as defined in the Series 2008-1
Supplement) and (b) the Series 2008-1 Class A-3 Note Purchase
Agreement (as defined in the Series 2008-1 Supplement), in each case, as
amended, modified or supplemented from time to time, and (ii) with respect
to each other Series of Notes, such other note purchase agreements similar
to the agreements described in the foregoing clause (i), as the
applicable parties shall enter into from time to time.


 


“Variable Funding Senior
Notes” means the Series 2008-1 Class A-2 Notes and the Series 2008-1
Class A-3 Notes and any other “Variable Funding Senior Notes” pursuant to
any Series Supplement applicable to such class of Notes.


 


“Variable Funding
Subfacilities” shall have the meaning specified in the applicable Variable
Funding Note Purchase Agreement.


 


“VFN Fee Letter”
shall refer to the fee letter entered into in connection with each applicable
Variable Funding Note Purchase Agreement which, among other


 


54














 


things, sets forth certain
fees payable to the applicable Variable Funding Administrative Agent.


 


“Warm Back-Up Services
Effective Date” means the date of the receipt by the Replacement Manager of
written notice from the Administrative Agent (acting at the direction of the
Control Party) to the Replacement Manager to the effect that an Early
Amortization Event, Master Manager Default, Transaction Manager Default or
Employee Manager Default has occurred.


 


“Warm Back-Up Services
Termination Date” means the date that the Replacement Manager receives
written notice from the Administrative Agent (acting at the direction of the
Control Party) that the applicable Early Amortization Event, Master Manager
Default, Transaction Manager Default or Employee Manager Default is no longer
continuing as of a specified date or the Hot Back-Up Services Effective Date
has occurred.


 


“Warm Replacement Manager
Phase” means the period during the term of the Replacement Management
Agreement between (i) a “Warm Back-Up Services Effective Date” and (ii) a
“Warm Back-Up Services Termination Date” or “Hot Back-Up Services Effective
Date” in accordance with the terms thereof.


 


“Warm Services
Replacement Manager Fees” with respect to any Payment Date, refers to the
fees, if any, payable to the Replacement Manager for rendering certain “Warm
Back-Up Services” pursuant to the Replacement Management Agreement and that
certain fee letter entered in connection therewith.


 


“Weekly Allocation Date”
means the first Business Day of each Weekly Collection Period, on which date
the Transaction Manager will make all withdrawals and deposits pursuant to the
Base Indenture relating to the applicable Collections in respect of the
preceding Weekly Collection Period.


 


“Weekly Collection Period”
means the period from and including each Monday and ending on and including the
next succeeding Sunday; provided that the first Weekly Collection Period
will commence on the Cut-Off Date and end on June 8, 2008.


 


“Weekly Reporting Date”
means the second Business Day following the last day of each Weekly Collection
Period, commencing on June 10, 2008.


 


“Weekly Manager’s
Certificate” shall have the meaning specified in Section 4.1(a) of
the Base Indenture.


 


“Welfare Plan” means
a “welfare plan” as such term is defined in Section 3(l) of ERISA.


 


“written” or “in
writing” means any form of written communication, including, without
limitation, by means of facsimile or electronic mail.


 


55

















 


Exhibit A


 


WEEKLY MANAGER’S CERTIFICATE


[Attached]


 


The Weekly
Manager’s Certificate shall  be delivered
together with the following statement by the Transaction Manager:


 


This certificate is being delivered pursuant to Section 4.1(a) of
the Base Indenture, dated as of May 28, 2008, by and among NuCO2 Funding
LLC, NuCO2 LLC, NuCO2 Supply LLC, NuCO2 IP LLC and U.S. Bank National
Association, as Trustee, Administrative Agent and Securities Intermediary, as
amended, supplemented, or otherwise modified from time to time by supplements
thereto in accordance with its terms (the “Base Indenture”).  Capitalized terms not otherwise defined
herein, shall have the meaning ascribed to them in the Base Indenture.  The undersigned officer of the Transaction
Manager hereby certifies that (i) to the knowledge of the undersigned the
historical information contained herein is true and correct in all material
respects, and (ii) the forward looking information contained herein has
been prepared in good faith based on information in the undersigned’s
possession and/or reasonably available to the undersigned on the date hereof.


 


	
  NUCO2 MANAGEMENT LLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
			



 














 


NuCO2 Funding LLC (“Master Issuer”)

Weekly Manager’s Certificate


 


	
   

  	
   

  	
  Weekly Allocation

  	
   

  	
  Monthly

  	
   

  
	
   

  	
   

  	
  Date

  	
   

  	
  Record Date

  	
   

  
	
  For the Collection Period Ended:

  	
   

  	
  6/2/08

  	
   

  	
  6/30/08

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  	
  Cumulative

  	
   

  
	
   

  	
   

  	
  Weekly

  	
   

  	
  Monthly

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I. 

  	
  NuCO2 LLC (“Contract Holder”)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A. 

  	
  Concentration Account

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  i)

  	
  Beginning Balance

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ii)

  	
  Add:
  Customer Collections (excluding Termination Amounts & Customer
  Deposits

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  iii)

  	
  Add:
  Termination Amounts

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  iv)

  	
  Add:
  Customer Deposits

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  v)

  	
  Add:
  Customer Location Equipment Resale Revenues

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  vi)

  	
  Add:
  Investment Income

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  vii)

  	
  Less:
  Delivery & Customer Services Fee

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  viii)

  	
  Less:
  Customer Location Equipment Costs

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  ix)

  	
  Less:
  Sales Tax Reimbursements

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  x)

  	
  Less:
  Property Tax Reimbursements

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xi)

  	
  Less:
  Monthly Sweep to Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  xii) 

  	
  Ending Balance

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  xiii) 

  	
  Customer Collections

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xiv) 

  	
  Adjusted Customer Collections

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xv) 

  	
  Delivery & Customer Services Fee

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Cumulative

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Weekly

  	
   

  	
  Monthly

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II. 

  	
  NuCO2 Supply (“Equipment Holder”)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B. 

  	
  Equipment Holder Master Account

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  i)

  	
  Beginning Balance

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ii)

  	
  Add:
  Delivery & Customer Services Fee

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  iii)

  	
  Add:
  Customer Location Equipment Costs

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  iv)

  	
  Add:
  Sales Tax Reimbursements

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  v)

  	
  Add:
  Property Tax Reimbursements

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  vi)

  	
  Add:
  Investment Income

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  vii)

  	
  Less:
  Equipment Holder Operating Expense Fees (up to Cap)

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  viii)

  	
  Less:
  Product & Lease Expenses

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  ix)

  	
  Less:
  Sales Tax Reimbursements

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  x)

  	
  Less:
  Property Tax Reimbursements

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xi)

  	
  Less:
  Monthly Sweep to Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  xii)

  	
  Ending Balance

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  xiii)

  	
  Equipment Holder Operating Expense Fees

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xiv)

  	
  Equipment Holder Operating Expense Fees Cap

  	
   

  	
  $

  	
  231,000.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
  Equipment Holder Operating Account

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  i)

  	
  Beginning Balance

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ii)

  	
  Add:
  Equipment Holder Operating Expense Fees (up to Cap)

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  iii)

  	
  Add:
  Product & Lease Expenses

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  iv)

  	
  Add:
  Sales Tax Reimbursements

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  v)

  	
  Add:
  Property Tax Reimbursements

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  vi)

  	
  Add:
  Draw under Class A-2 Notes

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  vii)

  	
  Add:
  Draw under Class A-3 Notes

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  viii)

  	
  Add:
  Transfer from Surplus Account or any other account

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  ix)

  	
  Add:
  Investment Income

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  x)

  	
  Less:
  Equipment Holder CAPEX Fees

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xi)

  	
  Less:
  Employee Services Fee

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xii)

  	
  Less:
  Payments to suppliers and other third parties

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xiii)

  	
  Less:
  Principal payments on Class A-2 and Class A-3 Notes, if applicable

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  xiv)

  	
  Ending Balance

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
  Equipment Holder CAPEX Account

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  i)

  	
  Beginning Balance

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ii)

  	
  Add:
  Equipment Holder CAPEX Fees

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  iii)

  	
  Less:
  Payment to employee co. and other third parties

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  iv)

  	
  Ending Balance

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  0.00

  	
   

  



 














 


Exhibit B


 


MONTHLY MANAGER’S CERTIFICATE

[Attached]


 


The
Monthly Manager’s Certificate shall be delivered together with the following
statement by the Transaction Manager:


 


This certificate is being delivered pursuant to Section 4.1(b) of
the Base Indenture, dated as of May 28, 2008, by and among NuCO2 Funding
LLC, NuCO2 LLC, NuCO2 Supply LLC, NuCO2 IP LLC and U.S. Bank National
Association, as Trustee, Administrative Agent and Securities Intermediary, as
amended, supplemented, or otherwise modified from time to time by supplements
thereto in accordance with its terms (the “Base Indenture”).  Capitalized terms not otherwise defined
herein, shall have the meaning ascribed to them in the Base Indenture.  The undersigned officer of the Transaction
Manager hereby certifies that (i) to the knowledge of the undersigned the
historical information contained herein is true and correct in all material
respects, and (ii) the forward looking information contained herein has
been prepared in good faith based on information in the undersigned’s
possession and/or reasonably available to the undersigned on the date hereof.


 


	
  NUCO2 MANAGEMENT LLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
			



 














 


NuCO2 Funding LLC (“Master Issuer”)


Class A-1 7.25% Asset Backed Notes


Class A-2 1mL+4.50% Variable Funding Asset Backed Notes


Class A-3 1mL+4.50% Variable Funding Asset Backed Notes


Class B-1 9.75% Asset Backed Notes


 


Monthly Manager’s Certificate


 


	
  Monthly Period Beginning:

  	
   

  	
  05/28/2008

  	
   

  
	
  Monthly Period Ending:

  	
   

  	
  06/30/2008

  	
   

  
	
  Prev. Distribution/Close Date:

  	
   

  	
  05/28/2008

  	
   

  
	
  Distribution Date:

  	
   

  	
  07/25/2008

  	
   

  
	
  Days of Interest for Period:

  	
   

  	
  57

  	
   

  
	
  Days in Collection Period:

  	
   

  	
  32

  	
   

  
	
  Months Since Closing:

  	
   

  	
  1/1

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  For the collection period
  Ended:

  	
   

  	
  6/30/08

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  	
  Monthly

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I.

  	
  NuCO2 LLC (“Master Issuer”)

  	
   

  	
   

  	
   

  
	
  A.

  	
  Collection Account

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  i)

  	
  Beginning Balance

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ii)

  	
  Add: Releases from Conentration Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  iii)

  	
  Add: Releases from Equipment Holder Master Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  iv)

  	
  Add: Investment Income from SPE Accounts

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  v)

  	
  Add: Additional Prepayment Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  vi)

  	
  Add: Equity Contributions from NuCO2 Inc.

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  vii)

  	
  Add: Amounts received from Preferred Equity Interests
  in the Employee Company

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  viii)

  	
  Add: Amounts received from Hedge Counterparties

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  ix)

  	
  Add: Senior Note Interest Reserve Release Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  x)

  	
  Add: Releases from Cash Trap Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xi)

  	
  Add: Releases from Contribution Reserve Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xii)

  	
  Add: Releases from Termination Reserve Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  xiii)

  	
  Less: Trustee Fee

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xiv)

  	
  Less: Transaction Management Fees

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xv)

  	
  Less: SPE Operating Expenses

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xvi)

  	
  Less: Senior Note Interest Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xvii)

  	
  Less: Class A-2 Commitment Fees

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xviii)

  	
  Less: Class A-3 Commitment Fees

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xix)

  	
  Less: Enhancement Account Fee

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xx)

  	
  Less: Payments to Permitted Hedges

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xxi)

  	
  Less: Senior Note Interest Reserve Refill Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xxii)

  	
  Less: Tax Reserve Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xxiii)

  	
  Less: Required Amortization Amounts

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xxiv)

  	
  Less: Senior Note Principal Amounts

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xxv)

  	
  Less: Senior Note Make-Whole Premium Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xxvi)

  	
  Less: Cash Trapping Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xxvii)

  	
  Less: Termination Amount Reserve Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xxviii)

  	
  Less: Subordinated Note Interest Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xxix)

  	
  Less: Subordinated Note Principal Amounts

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xxx)

  	
  Less: Subordinated Note Make-Whole Premium Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xxxi)

  	
  Less: Senior Note Contingent Interest Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xxxii)

  	
  Less: Subordinated Note Contingent Interest Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  xxxiii)

  	
  Less: Contribution Amounts

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  Less: Surplus Amounts

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  xxiv)

  	
  Ending Balance

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Investment Income Schedule

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Investment Income in Collection Account including
  Administrative Accounts

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  Investment Income in Cash Trap Reserve Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  Investment Income in Senior Note Interest Reserve
  Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  Investment Income in Contributions Reserve Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  Investment Income in Termination Amount Reserve
  Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  Investment Income in Hedge Payment Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  Investment Income in Enhancement Payment Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  Investment Income From SPE Accounts

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Additional Prepayment Amounts
  Schedule

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Asset Disposition Amounts

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  Indemnification Amounts

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  Insurance Proceeds Amounts remaining in Insurance
  Proceeds Reserve Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  Excess CAPEX Amounts

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  Additional Prepayment Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
  Cash Trap Reserve Account

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  i)

  	
  Beginning Balance

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ii)

  	
  Add: Cash Trapping Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  iii)

  	
  Add: Investment Income

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  iv)

  	
  Less: Releases to Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  v)

  	
  Less: Investment Income to Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  vi)

  	
  Ending Balance

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Cash Trapping Percentage

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
  Senior Note Interest Reserve
  Account

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  i)

  	
  Beginning Balance

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ii)

  	
  Add: Investment Income

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  ii)

  	
  Add: From Class A-2 or Class A-3 draws

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  iii)

  	
  Add: Senior Note Interest Reserve Refill Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  iv)

  	
  Less: Senior Note Interest Reserve Release Amount

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
  v)

  	
  Less: Investment Income to Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  xii)

  	
  Ending Balance

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Senior Note Interest Reserve Required Amount

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Senior Note Interest Reserve Deficit Amount

  	
   

  	
   

  	
   

  



 

















 


	
  D.

  	
   

  	
  Contributions Reserve Account

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  i)

  	
   

  	
  Beginning Balance

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ii)

  	
   

  	
  Add: Investment Income

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  iii)

  	
   

  	
  Add: From Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  iv)

  	
   

  	
  Less: Investment Income to the Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  v)

  	
   

  	
  Less: Releases to Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  xii)

  	
   

  	
  Ending Balance  

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Contribution Amount for Month 3

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Contribution Amount for Month 2

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Contribution Amount for Month 1

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Contribution Amount Shortfall

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E.

  	
   

  	
  Terminations Amount Reserve Account

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  i)

  	
   

  	
  Beginning Balance

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ii)

  	
   

  	
  Add: Investment Income

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  iii)

  	
   

  	
  Add: From Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  iv)

  	
   

  	
  Less: Investment Income to the Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  v)

  	
   

  	
  Less: Releases to Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  xii)

  	
   

  	
  Ending Balance  

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Termination Amount for Month 3

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Termination Amount for Month 2

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Termination Amount for Month 1

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Termination Amount Shortfall

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E.

  	
   

  	
  Hedge Payment Account

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  i)

  	
   

  	
  Beginning Balance

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ii)

  	
   

  	
  Add: From Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  iii)

  	
   

  	
  Add: Payments from Hedge Counterparties

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  iv)

  	
   

  	
  Less: To Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  v)

  	
   

  	
  Less: Payments to Hedge Counterparties

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  xii)

  	
   

  	
  Ending Balance

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F.

  	
   

  	
  Enhancement Payment Account

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  i)

  	
   

  	
  Beginning Balance

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ii)

  	
   

  	
  Add: From Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  iii)

  	
   

  	
  Add: Any payments received from the Enhancer

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  iv)

  	
   

  	
  Add: To Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  v)

  	
   

  	
  Add: Any payments received to the Enhancer

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  xii)

  	
   

  	
  Ending Balance

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  G.

  	
   

  	
  Surplus Account

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  i)

  	
   

  	
  Beginning Balance

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ii)

  	
   

  	
  Add: From Collection Account

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  iii)

  	
   

  	
  Add: Any deposits from NuCO2 Inc

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  iv)

  	
   

  	
  Add: Payments to Operating Account or others

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
  v)

  	
   

  	
  Add: Any dividends to NuCO2 Inc

  	
   

  	
  $

  	
  0.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  xii)

  	
   

  	
  Ending Balance

  	
   

  	
  $

  	
  0.00

  	
   

  



 


H. Others


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
  Monthly

  	
   

  	
   

  	
   

  	
  Unpaid Amounts

  	
   

  	
  Unpaid Amounts

  	
   

  
	
   

  	
  Expense Type

  	
   

  	
  Accrued

  	
   

  	
  Amount

  	
   

  	
  Paid Amounts

  	
   

  	
  (Beg of Month)

  	
   

  	
  (End of Month)

  	
   

  
	
   

  	
  Trustee
  Fees

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Administrative
  Agent Fees

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Replacement
  Manager Fees

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Class A-2
  Administrative Agent Fees

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Class A-3
  Administrative Agent Fees

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Transaction
  Management Fee

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
  SPE
  Operating Expenses

  	
   

  	
  Monthly

  	
   

  	
  Annual

  	
   

  
	
   

  	
  Accrued and Unpaid Government taxes, filling fees,
  registration fees

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Trustee
  Expense Paid

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Replacement
  Manager Expense Paid

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Administrative
  Agent Expense Paid

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Class
  A-2 Administrative Agent Expense Paid

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Class
  A-3 Administrative Agent Expense Paid

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Rating
  Agency Monitoring Fees

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Independent
  Certified Public Accountants or External Legal Counsel

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Securitization
  Entities Indemnities

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Others

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Total
  SPE Operating Expenses

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SPE
  Operating Expenses Cap

  	
   

  	
   

  	
   

  	
  500,000

  	
   

  



 

















 


I. Notes


 


Noteholders’
Interest Distributable Amount


 


	
   

  	
   

  	
  Beginning

  	
   

  	
  Unpaid

  	
   

  	
  Weighted Average

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Accrued

  	
   

  	
  Paid

  	
   

  
	
  Class

  	
   

  	
  Note Balance

  	
   

  	
  Interest

  	
   

  	
  Interest Rate

  	
   

  	
  Days

  	
   

  	
  Days Basis

  	
   

  	
  Interest

  	
   

  	
  Interest

  	
   

  
	
  Series 2008-1 Class A-1 Notes 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Series 2008-1 Class A-2 VFN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Series 2008-1 Class A-3 VFN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Series 2008-1 Class B-1 Notes

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Noteholders’
Interest Distributable Amount


 


	
   

  	
   

  	
  VFN Commitment

  	
   

  	
  Unpaid

  	
   

  	
  Commitment

  	
   

  	
  Accrued

  	
   

  	
  Paid

  	
   

  
	
  Class

  	
   

  	
  Amount

  	
   

  	
  Commitment Fee

  	
   

  	
  Fee Rate

  	
   

  	
  Commitment Fee

  	
   

  	
  Commitment Fees

  	
   

  
	
  Series 2008-1 Class A-1 Notes

  	
   

  	
  NA

  	
   

  	
   

  	
   

  	
  NA

  	
   

  	
  NA

  	
   

  	
   

  	
   

  
	
  Series 2008-1 Class A-2 VFN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Series 2008-1 Class A-3 VFN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Series 2008-1 Class B-1 Notes

  	
   

  	
  NA

  	
   

  	
   

  	
   

  	
  NA

  	
   

  	
  NA

  	
   

  	
   

  	
   

  



 


Noteholders’ Interest Distributable Amount


 


	
   

  	
   

  	
  Unpaid

  	
   

  	
  Weighted Average

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Accrued Contingent

  	
   

  	
  Paid Contingent

  	
   

  	
  Note Make Whole

  	
   

  
	
  Class

  	
   

  	
  Contingent Interest

  	
   

  	
  Contingent Interest

  	
   

  	
  Days

  	
   

  	
  Days Basis

  	
   

  	
  Additional Interest

  	
   

  	
  Additional Interest

  	
   

  	
  Preimum Amount

  	
   

  
	
  Series 2008-1
  Class A-1 Notes

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Series 2008-1
  Class A-2 VFN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Series 2008-1
  Class A-3 VFN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Series 2008-1
  Class B-1 Notes

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Noteholders’
Principal Distributable Amount


 


	
  Class

  	
   

  	
  Beginning

  Note Balance

  	
   

  	
  Draws

  	
   

  	
  Required

  Amortization

  	
   

  	
  Principal

  Distributable

  	
   

  	
  Total

  Principal Paid

  	
   

  	
  Ending

  Note Balance

  	
   

  
	
  Series 2008-1 Class A-1 Notes

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Series 2008-1 Class A-2 VFN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Series 2008-1 Class A-3 VFN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Series 2008-1 Class B-1 Notes

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Noteholder’s
Distributable Amounts (per 1000 of Notes)


 


	
  Class

  	
   

  	
  Beginning

  Note Balance

  	
   

  	
  Interest Paid

  (per $1000)

  	
   

  	
  Principal Paid

  (per $1000)

  	
   

  
	
  Series 2008-1 Class A-1 Notes

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Series 2008-1 Class A-2 VFN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Series 2008-1 Class A-3 VFN

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Series 2008-1 Class B-1 Notes

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


J. Triggers


 


	
   

  	
   

  	
  Month []

  	
   

  	
  Month []

  	
   

  	
  Month []

  	
   

  	
  Total

  	
   

  
	
  Net Cash Flow

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Net Cash Flow (excluding Contribution Amounts)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Debt Service

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Three Month DSCR

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Three Month DSCR (excluding Contribution Amounts)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  One Year DSCR

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  One Year DSCR (excluding Contribution Amounts)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


[INSERT CHART for last 12 months net cash flow, debt
service, three month DSCR and one-year DSCR]


 


Adjusted Customer Collections


Equipment Holder Operating Expenses


Equipment Holder Operating Expense Cap


Product and Lease Expenses


Number of Tank Customer Locations


Number of Fill-Only Customer Locations


Number of HP Cylinder Customer Locations and Other Customer Locations


 


[INSERT CHART for last 12 months statistics for the
above]


 


H. Pro-Forma DSCR


 


Bulk CO2 Tank or Nitrogen Generators Related
Information


Total Number of Tanks


Number of New Tanks with Eligible Contracts


Average Age of New Tanks with Eligible Contracts


 


Total Number of Nitrogen Generators


Number of New Nitrogen Generators with Eligible Contracts


Average Age of New Nitrogen Generators with Eligible Contracts


 


Aggregate Borrowing Base Amount


 


	
   

  	
   

  	
  Month []

  	
   

  	
  Month []

  	
   

  	
  Month []

  	
   

  	
  Total

  	
   

  
	
  Customer Collections from all customer locations
  other than new customer locations

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Sales Tax Reimbursements from all customer locations
  other than new customer locations

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Property Tax Reimbursements from all customer
  locations other than new customer locations

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Customer Deposits

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Termination Amounts from all customer locations
  other than new customer locations

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Customer Collections from new customer locations

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Sales Tax Reimbursements from new customer
  locations

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Property Tax Reimbursements from new customer
  locations

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Termination Amounts from new customer locations

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Customer Location Equipment Disposition Amounts

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Transaction Management Fee

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Any reimbursements to the Transaction Manager

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Eqp Holder Operating Expense Fee for all customer
  locations other than new customer locations

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Eqp Holder Operating Expense Fee for new customer
  locations

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Pro Forma eqp holder operating expense cap

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Product & Lease Expenses

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Pro Forma Net Cash Flow

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  
	
  Debt Service for the last three months

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Debt Service for the new debt drawn

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Proforma Debt Service

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  
	
  Proforma DSCR

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  



 


Class A-2 Maximum Draw Amount


Class A-2 Draws


Class A-2 End of Period Balance Including Draws


 


I.                 Notice
is hereby provided [to renew] [not to renew] the terms of the following
agreements:* ooo


 


1.     [Master Management Agreement,
pursuant to Article III thereof]


2.     [Transaction
Management Agreement, pursuant to Article III thereof]


3.     [Delivery
and Customer Services Agreement, pursuant to Article VI thereof]


4.     [Employee
Services Agreement, pursuant to Article V thereof]


5.     [Other]


 






* remove brackets or delete bracketed language, as appropriate


 














 


Exhibit C-1


 


FORM OF GRANT OF
SECURITY INTEREST IN TRADEMARKS


 


GRANT OF SECURITY INTEREST IN TRADEMARKS (the “Grant”),
dated as of
                ,
2008, made by NuCO2 IP
LLC, a Delaware limited liability company (the “Grantor”)
in favor of U.S BANK NATIONAL ASSOCIATION, as trustee (“Secured Party”).


 


WHEREAS, the Grantor is the owner of the United States
trademarks and service marks set forth in Schedule 1 attached
hereto, including the associated registrations and applications for
registration set forth in Schedule 1 attached hereto (collectively,
the “Trademarks”) and all goodwill of any business associated and
connected therewith or symbolized thereby; and


 


WHEREAS, pursuant to the Base Indenture, dated as of
                ,
2008, by and among the Grantor, NuCO2 Funding LLC, a Delaware limited liability
company, NuCO2 LLC, a Delaware limited liability company, NuCO2 Supply LLC, a
Delaware limited liability company and the Secured Party (the “Agreement”),
the Grantor granted, assigned and conveyed to Secured Party a continuing
security interest in, and lien on, certain intellectual property, including the
Trademarks and the goodwill of the business symbolized by the Trademarks and
all products and proceeds of the foregoing (collectively the “Trademark Collateral”);
and


 


WHEREAS, pursuant to Section 8.25(c) of
the Agreement, the Grantor agreed to execute and deliver to Secured Party this
Grant for purposes of filing the same with the United States Patent and
Trademark Office (the “PTO”) to confirm, evidence and perfect the
security interest in the Trademark Collateral granted pursuant to the
Agreement;


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to
all applicable terms and conditions of the Agreement, which are incorporated by
reference as if fully set forth herein, the Grantor hereby pledges, assigns,
conveys, delivers, transfers and sets over to Secured Party, and hereby grants
to Secured Party, a security interest in the Grantor’s right, title and
interest in all of the Trademark Collateral to the extent now owned or at any
time hereafter acquired by the Grantor, provided that the grant of security
interest shall not include and no grant of security interest shall be deemed
granted hereunder in any Trademark Collateral that would be invalidated,
canceled, voided or abandoned due to the grant and/or enforcement of such
security interest, including, all such United States and foreign Trademark
applications that are based on an intent-to-use such Trademark in commerce,
provided that at such time the grant and/or enforcement of the security
interest will not cause such Trademark Collateral to be invalidated, canceled,
voided or abandoned, then such grant and/or enforcement of the security
interest shall be deemed effective under this Grant.


 

















 


1.             The Grantor intends that this Grant is
for recordation purposes only and its terms shall not modify the applicable
terms and conditions of the Agreement, which govern the Secured Party’s
interest in the Trademark Collateral. 
The Grantor hereby acknowledges the sufficiency and completeness of this
Grant to create the security interest in the Trademark Collateral for the
Secured Party, and the Grantor hereby requests the PTO to file and record the
same together with the annexed Schedule 1.


 


2.             The Grantor and Secured Party hereby
acknowledge and agree that the security interest in the Trademark Collateral
may be terminated only in accordance with the terms of the Agreement.


 


IN
WITNESS WHEREOF, the undersigned has caused this Grant to be duly executed and
delivered as of the date first above written.


 


 




	
   

  	
  NuCO2 IP LLC, as Grantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  






 

















 


STATE
OF
[                ]    )


: ss:


COUNTY
OF
[                  ])


 


On the [    ]th
day of
                        ,
before me, the
undersigned, a Notary Public in and for the State of
[                      ],
duly commissioned and sworn, personally appeared
[                            ],
to me known to be the [                            ]
of NuCO2 IP
LLC, the limited liability
company that executed the within and foregoing instrument, and acknowledged
said instrument to be free and voluntary deed of said limited liability company
for the uses and the purposes therein mentioned, and on oath stated that he was
authorized to execute said instrument.


 


 




	
   

  	
   

  
	
   

  	
  (Signature
  of Notary)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Legibly
  Print or Stamp Name of Notary)

  
	
   

  	
   

  
	
   

  	
  Notary public in and
  for the State of
  [                ],

  
	
   

  	
   

  
	
   

  	
  residing at

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  My appointment expires

  	
   

  
				






 

















 


Schedule 1 to Exhibit C-1
— Trademarks


 

















 


Exhibit C-2


 


FORM OF GRANT OF SECURITY INTEREST IN PATENTS


 


GRANT OF SECURITY INTEREST IN PATENTS (the “Grant”),
dated as of
                ,
2008, made by NuCO2 IP
LLC, a Delaware limited liability company (the “Grantor”)
in favor of U.S BANK NATIONAL ASSOCIATION, as trustee (“Secured Party”).


 


WHEREAS, the Grantor is the owner of the United States
patents and patent applications set forth in Schedule 1 attached
hereto (collectively, the “Patents”); and


 


WHEREAS, pursuant to the Base Indenture, dated as of
                ,
2008, by and among the Grantor, NuCO2 Funding LLC, a Delaware limited liability
company, NuCO2 LLC, a Delaware limited liability company, NuCO2 Supply LLC, a
Delaware limited liability company and the Secured Party (the “Agreement”),
the Grantor granted, assigned and conveyed to Secured Party a continuing
security interest in, and lien on, certain intellectual property, including the
Patents and all products and proceeds of the foregoing (collectively, the “Patent
Collateral”); and


 


WHEREAS, pursuant to Section 8.25(c) of
the Agreement, the Grantor agreed to execute and deliver to Secured Party this
Grant for purposes of filing the same with the United States Patent and
Trademark Office (the “PTO”) to confirm, evidence and perfect the
security interest in the Patent Collateral granted pursuant to the Agreement;


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to
all applicable terms and conditions of the Agreement, which are incorporated by
reference as if fully set forth herein, the Grantor hereby pledges, assigns,
conveys, delivers, transfers and sets over to Secured Party, and hereby grants
to Secured Party, a security interest in the Grantor’s right, title and
interest in all of the Patent Collateral to the extent now owned or at any time
hereafter acquired by the Grantor.


 


1.             The parties intend that this Grant is for
recordation purposes only and its terms shall not modify the applicable terms
and conditions of the Agreement, which govern the Secured Party’s interest in
the Patent Collateral. The Grantor hereby acknowledges the sufficiency and
completeness of this Grant to create the security interest in the Patent
Collateral for the Secured Party, and the Grantor hereby requests the PTO to
file and record the same together with the annexed Schedule 1.


 


2.             The
Grantor and Secured Party hereby acknowledge and agree that the security
interest in the Patent Collateral may be terminated only in accordance with the
terms of the Agreement.


 

















 


IN WITNESS WHEREOF, the undersigned has caused this
Grant to be duly executed and delivered as of the date first above written.


 


 




	
   

  	
  NuCO2 IP LLC, as Grantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  






 

















 


STATE
OF
[                ]    )


: ss:


COUNTY
OF
[                  ])


 


On the
[    ]th day of
                        ,
before me, the
undersigned, a Notary Public in and for the State of
[                      ],
duly commissioned and sworn, personally appeared [                            ],
to me known to be the
[                            ]
of NuCO2 IP
LLC, the limited liability
company that executed the within and foregoing instrument, and acknowledged
said instrument to be free and voluntary deed of said limited liability company
for the uses and the purposes therein mentioned, and on oath stated that he was
authorized to execute said instrument.





 




	
   

  	
   

  
	
   

  	
  (Signature
  of Notary)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Legibly
  Print or Stamp Name of Notary)

  
	
   

  	
   

  
	
   

  	
  Notary public in and
  for the State of
  [                ],

  
	
   

  	
   

  
	
   

  	
  residing at

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  My appointment expires

  	
   

  
				






 

















 


Schedule 1 to Exhibit C-2
— Patent Collateral


 

















 


Exhibit C-3


 


FORM OF GRANT OF SECURITY INTEREST IN
COPYRIGHTS


 


GRANT OF SECURITY INTEREST IN COPYRIGHTS (the “Grant”),
dated as of
                ,
2008, made by NuCO2 IP
LLC, a Delaware limited liability company (the “Grantor”),
in favor of U.S BANK NATIONAL ASSOCIATION, as trustee (“Secured Party”).


 


WHEREAS, the Grantor is the owner of the United States
copyrights (including the associated registrations and applications for
registration) set forth in Schedule 1 attached hereto
(collectively, the “Copyrights”); and


 


WHEREAS, pursuant to the Base Indenture, dated as of
                ,
2008, by and among the Grantor, NuCO2 Funding LLC, a Delaware limited liability
company, NuCO2 LLC, a Delaware limited liability company, NuCO2 Supply LLC, a
Delaware limited liability company and the Secured Party (the “Agreement”),
the Grantor granted, assigned and conveyed to Secured Party a continuing
security interest in, and lien on, certain intellectual property, including the
Copyrights and all products and proceeds of the foregoing (collectively, the “Copyright
Collateral”); and


 


WHEREAS, pursuant to Section 8.25(c) of
the Agreement, the Grantor agreed to execute and deliver to Secured Party this
Grant for purposes of filing the same with the United States Copyright Office
(the “Copyright Office”) to confirm, evidence and perfect the security
interest in the Copyright Collateral granted pursuant to the Agreement;


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to
all applicable terms and conditions of the Agreement, which are incorporated by
reference as if fully set forth herein, the Grantor hereby pledges, assigns,
conveys, delivers, transfers and sets over to Secured Party, and hereby grants
to Secured Party, a security interest in the Grantor’s right, title and
interest in all of the Copyright Collateral to the extent now owned or at any
time hereafter acquired by the Grantor.


 


1.             The parties intend that this Grant is for
recordation purposes only and its terms shall not modify the applicable terms
and conditions of the Agreement, which govern the Secured Party’s interest in
the Copyright Collateral. The Grantor hereby acknowledges the sufficiency and
completeness of this Grant to create the security interest in the Copyright
Collateral and to grant the same to the Secured Party, and the Grantor hereby
requests the Copyright Office to file and record the same together with the
annexed Schedule 1.


 

















 


2.             The Grantor and Secured Party hereby
acknowledge and agree that the security interest in the Copyright Collateral
may be terminated only in accordance with the terms of the Agreement.


 


IN
WITNESS WHEREOF, the undersigned has caused this Grant to be duly executed and
delivered as of the date first above written.


 


 




	
   

  	
  NuCO2 IP LLC, as Grantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  






 














 


STATE
OF
[                ]    )


: ss:


COUNTY
OF
[                  ])


 


On the
[    ]th day of
                        ,
before me, the
undersigned, a Notary Public in and for the State of
[                      ],
duly commissioned and sworn, personally appeared [                            ],
to me known to be the [                            ]
of NuCO2 IP
LLC, the limited liability
company that executed the within and foregoing instrument, and acknowledged
said instrument to be free and voluntary deed of said limited liability company
for the uses and the purposes therein mentioned, and on oath stated that he was
authorized to execute said instrument.


 


 




	
   

  	
   

  
	
   

  	
  (Signature
  of Notary)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Legibly
  Print or Stamp Name of Notary)

  
	
   

  	
   

  
	
   

  	
  Notary public in and
  for the State of
  [                ],

  
	
   

  	
   

  
	
   

  	
  residing at

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  My appointment expires

  	
   

  
				






 

















 


Schedule 1
to Exhibit C-3 — Copyright Collateral


 

















 


Exhibit D-1


 


FORM OF SUPPLEMENTAL
GRANT OF SECURITY INTEREST IN TRADEMARKS


 


GRANT OF SUPPLEMENTAL SECURITY INTEREST IN TRADEMARKS
(the “Grant”), dated as of
                        ,
made by [NuCO2 IP
LLC, a Delaware limited liability company] [insert name of Additional IP
Holder] (the “Grantor”) in favor of
U.S. BANK NATIONAL ASSOCIATION, as trustee (“Secured Party”).


 


WHEREAS, the Grantor is the owner of the United States
trademarks and service marks set forth in Schedule 1 attached
hereto, including the associated registrations and applications for
registration set forth in Schedule 1 attached hereto (collectively,
the “Trademarks”) and all goodwill of any business associated and
connected therewith or symbolized thereby; and


 


WHEREAS, pursuant to the Base Indenture, dated as of
                ,
2008, by and among the Grantor, NuCO2 Funding LLC, a Delaware limited liability
company, NuCO2 LLC, a Delaware limited liability company, NuCO2 Supply LLC, a
Delaware limited liability company and the Secured Party (the “Agreement”),
the Grantor granted, assigned and conveyed to Secured Party a continuing
security interest in, and lien on, certain intellectual property, including the
Trademarks and the goodwill of the business symbolized by the Trademarks and
all products and proceeds of the foregoing (collectively the “Trademark
Collateral”); and


 


WHEREAS, pursuant to Section 8.25(d) 
of the Agreement, the Grantor agreed to execute and deliver to Secured Party
this Grant for purposes of filing the same with the United States Patent and
Trademark Office (the “PTO”) to confirm, evidence and perfect the
security interest in the Trademark Collateral granted pursuant to the
Agreement;


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to
all applicable terms and conditions of the Agreement, which are incorporated by
reference as if fully set forth herein, the Grantor hereby pledges, assigns,
conveys, delivers, transfers and sets over to Secured Party, and hereby grants
to Secured Party, a security interest in the Grantor’s right, title and
interest in all of the Trademark Collateral to the extent now owned or at any
time hereafter acquired by the Grantor, provided that the grant of security
interest shall not include and no grant of security interest shall be deemed
granted hereunder in any Trademark Collateral that would be invalidated,
canceled, voided or abandoned due to the grant and/or enforcement of such
security interest, including, all such United States and foreign Trademark
applications that are based on an intent-to-use such Trademark in commerce. At
such time that the grant and/or enforcement of the security interest will not
cause such Trademark Collateral to be invalidated, canceled, voided or
abandoned, then


 

















 


such grant and/or enforcement of the security interest
shall be deemed effective under this Grant.


 


1.             The Grantor intends that this Grant is
for recordation purposes only and its terms shall not modify the applicable
terms and conditions of the Agreement, which govern the Secured Party’s
interest in the Trademark Collateral. 
The Grantor hereby acknowledges the sufficiency and completeness of this
Grant to create the security interest in the Trademark Collateral for the
Secured Party, and the Grantor hereby requests the PTO to file and record the
same together with the annexed Schedule 1.


 


2.             The Grantor and Secured Party hereby
acknowledge and agree that the security interest in the Trademark Collateral
may be terminated only in accordance with the terms of the Agreement.


 


IN
WITNESS WHEREOF, the undersigned has caused this Grant to be duly executed and
delivered as of the date first above written.


 


 




	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  






 

















 


STATE
OF
[                ]    )


: ss:


COUNTY
OF
[                  ])


 


On the
[    ]th day of
                        ,
before me, the
undersigned, a Notary Public in and for the State of
[                      ],
duly commissioned and sworn, personally appeared [                            ],
to me known to be the
[                            ]
of
[                            ], the limited liability company that
executed the within and foregoing instrument, and acknowledged said instrument
to be free and voluntary deed of said limited liability company for the uses
and the purposes therein mentioned, and on oath stated that he was authorized
to execute said instrument.


 


 




	
   

  	
   

  
	
   

  	
  (Signature
  of Notary)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Legibly
  Print or Stamp Name of Notary)

  
	
   

  	
   

  
	
   

  	
  Notary public in and
  for the State of
  [                ],

  
	
   

  	
   

  
	
   

  	
  residing at

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  My appointment expires

  	
   

  
				






 

















 


Schedule 1
to Exhibit D-1

After-Acquired Trademarks


 

















 


Exhibit D-2


 


FORM OF GRANT OF SUPPLEMENTAL SECURITY
INTEREST IN PATENTS


 


GRANT OF SUPPLEMENTAL SECURITY INTEREST IN PATENTS
(the “Grant”), dated as of
                        ,
made by [NuCO2 IP
LLC, a Delaware limited liability company] [insert name of Additional IP
Holder] (the “Grantor”) in favor of
U.S. BANK NATIONAL ASSOCIATION, as trustee (“Secured Party”).


 


WHEREAS, the Grantor is the owner of the United States
patents and patent applications set forth in Schedule 1 attached
hereto (collectively, the “Patents”); and


 


WHEREAS, pursuant to the Base Indenture, dated as of
                ,
2008, by and among the Grantor, NuCO2 Funding LLC, a Delaware limited liability
company, NuCO2 LLC, a Delaware limited liability company, NuCO2 Supply LLC, a
Delaware limited liability company and the Secured Party (the “Agreement”),
the Grantor granted,  assigned and
conveyed to Secured Party a continuing security interest in, and lien on,
certain intellectual property, including the Patents and all products and proceeds
of the foregoing (collectively, the “Patent Collateral”); and


 


WHEREAS, pursuant to Section 8.25(d) of
the Agreement, the Grantor agreed to execute and deliver to Secured Party this
Grant for purposes of filing the same with the United States Patent and
Trademark Office (the “PTO”) to confirm, evidence and perfect the
security interest in the Patent Collateral granted pursuant to the Agreement;


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to
all applicable terms and conditions of the Agreement, which are incorporated by
reference as if fully set forth herein, the Grantor hereby pledges, assigns,
conveys, delivers, transfers and sets over to Secured Party, and hereby grants
to Secured Party, a security interest in the Grantor’s right, title and
interest in all of the Patent Collateral to the extent now owned or at any time
hereafter acquired by the Grantor.


 


1.             The parties intend that this Grant is for
recordation purposes only and its terms shall not modify the applicable terms
and conditions of the Agreement, which govern the Secured Party’s interest in
the Patent Collateral. The Grantor hereby acknowledges the sufficiency and
completeness of this Grant to create the security interest in the Patent
Collateral for the Secured Party, and the Grantor hereby requests the PTO to
file and record the same together with the annexed Schedule 1.


 


2.             The Grantor and Secured Party hereby
acknowledge and agree that the security interest in the Patent Collateral may
be terminated only in accordance with the terms of the Agreement.


 

















 


IN WITNESS WHEREOF, the undersigned has caused this
Grant to be duly executed and delivered as of the date first above written.


 


 




	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  






 

















 


STATE
OF
[                ]    )


: ss:


COUNTY
OF
[                  ])


 


On the
[    ]th day of
                        ,
before me, the
undersigned, a Notary Public in and for the State of
[                      ],
duly commissioned and sworn, personally appeared
[                            ],
to me known to be the [                            ]
of
[                            ], the limited liability company that
executed the within and foregoing instrument, and acknowledged said instrument
to be free and voluntary deed of said limited liability company for the uses
and the purposes therein mentioned, and on oath stated that he was authorized
to execute said instrument.


 


 




	
   

  	
   

  
	
   

  	
  (Signature
  of Notary)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Legibly
  Print or Stamp Name of Notary)

  
	
   

  	
   

  
	
   

  	
  Notary public in and
  for the State of
  [                ],

  
	
   

  	
   

  
	
   

  	
  residing at

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  My appointment expires

  	
   

  
				






 














 


	
   

  	
  Schedule 1 to Exhibit D-2

  
	
   

  	
  After-Acquired Patent Collateral

  



 

















 


Exhibit D-3


 


FORM OF GRANT OF SUPPLEMENTAL SECURITY
INTEREST IN COPYRIGHTS


 


GRANT OF SUPPLEMENTAL SECURITY INTEREST IN COPYRIGHTS
(the “Grant”), dated as of
                        ,
made by [NuCO2 IP
LLC, a Delaware limited liability company] [insert name of Additional IP
Holder] (the “Grantor”) in favor of
U.S. BANK NATIONAL ASSOCIATION, as trustee (“Secured Party”).


 


WHEREAS, the Grantor is the owner of the United States
copyrights (including the associated registrations and applications for
registration) set forth in Schedule 1 attached hereto
(collectively, the “Copyrights”); and


 


WHEREAS, pursuant to the Base Indenture, dated as of
                ,
2008, by and among the Grantor, NuCO2 Funding LLC, a Delaware limited liability
company, NuCO2 LLC, a Delaware limited liability company, NuCO2 Supply LLC, a
Delaware limited liability company and the Secured Party (the “Agreement”),
the Grantor granted, assigned and conveyed to Secured Party a continuing
security interest in, and lien on, certain intellectual property, including the
Copyrights and all products and proceeds of the foregoing (collectively, the “Copyright
Collateral”); and


 


WHEREAS, pursuant to Section 8.25(d) of
the Agreement, the Grantor agreed to execute and deliver to Secured Party this
Grant for purposes of filing the same with the United States Copyright Office
(the “Copyright Office”) to confirm, evidence and perfect the security
interest in the Copyright Collateral granted pursuant to the Agreement;


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to
all applicable terms and conditions of the Agreement, which are incorporated by
reference as if fully set forth herein, the Grantor hereby pledges, assigns,
conveys, delivers, transfers and sets over to Secured Party, and hereby grants
to Secured Party, a security interest in the Grantor’s right, title and
interest in all of the Copyright Collateral to the extent now owned or at any
time hereafter acquired by the Grantor.


 


1.             The
parties intend that this Grant is for recordation purposes only and its terms
shall not modify the applicable terms and conditions of the Agreement, which
govern the Secured Party’s interest in the Copyright Collateral. The Grantor
hereby acknowledges the sufficiency and completeness of this Grant to create
the security interest in the Copyright Collateral and to grant the same to the
Secured Party, and the Grantor hereby requests the Copyright Office to file and
record the same together with the annexed Schedule 1.


 

















 


2.             The
Grantor and Secured Party hereby acknowledge and agree that the security
interest in the Copyright Collateral may be terminated only in accordance with the
terms of the Agreement.


 


IN
WITNESS WHEREOF, the undersigned has caused this Grant to be duly executed and
delivered as of the date first above written.


 


 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


STATE
OF
[                ]    )


: ss:


COUNTY
OF
[                  ])


 


On the
[    ]th day of
                        ,
before me, the
undersigned, a Notary Public in and for the State of
[                      ],
duly commissioned and sworn, personally appeared [                            ],
to me known to be the [                            ]
of [                            ], the limited liability company that
executed the within and foregoing instrument, and acknowledged said instrument
to be free and voluntary deed of said limited liability company for the uses
and the purposes therein mentioned, and on oath stated that he was authorized
to execute said instrument.


 


 


	
   

  	
   

  
	
   

  	
  (Signature
  of Notary)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Legibly
  Print or Stamp Name of Notary)

  
	
   

  	
   

  
	
   

  	
  Notary public in and
  for the State of
  [                ],

  
	
   

  	
   

  
	
   

  	
  residing at

  	
   

  
	
   

  	
   

  
	
   

  	
  My appointment expires

  	
   

  
				



 

















 


Schedule 1
to Exhibit D-3


After-Acquired
Copyright Collateral


 

















 


Exhibit E


 


FORM OF
COMPLIANCE CERTIFICATE


 


[CO-ISSUERS
LETTERHEAD]


 


Reference is hereby made to the Base Indenture and the
Series 2008-1 Supplement, each dated as of May 28, 2008 (together,
with all series supplements thereto, as amended, supplemented, or otherwise
modified from time to time by supplements thereto in accordance with its terms,
the “Indenture”), among NuCO2 Funding LLC, NuCO2 LLC, NuCO2 Supply LLC, NuCO2 IP LLC and U.S. Bank National Association, as
Trustee, Administrative Agent and Securities Intermediary.  Capitalized terms used herein but not
otherwise defined herein have the respective meanings ascribed to them in the
Indenture.  This certificate is issued
pursuant to Section 4.1(d) of the Base Indenture.


 


The undersigned officer of each of the Co-Issuers
hereby certifies that [, except as has been provided in a notice delivered
pursuant to Section 8.8 of the Base Indenture,] no Early Amortization
Event or Event of Default has occurred and is continuing.


 


[REMAINDER OF PAGE
LEFT INTENTIONALLY BLANK]


 

















 


IN WITNESS WHEREOF, each of the undersigned has signed this certificate
on behalf of and with respect to the applicable Co-Issuer indicated beneath his
or her signature below on the [·] day of [·], [·].


 


 


	
   

  	
  NUCO2 FUNDING LLC,
  as a Co-Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NUCO2 LLC, as a
  Co-Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NUCO2 SUPPLY LLC,
  as a Co-Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NUCO2 IP LLC, as a
  Co-Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


Exhibit F


 


FORM OF
INFORMATION REQUEST CERTIFICATION


 


U.S.
Bank National Association


60
Livingston Avenue


EP-MN-WS3D


St.
Paul, MN 55107


Attn:
Structured Finance / NuCo2


Facsimile:
866-831-7910


 


[NuCO2


Address


Facsimile]


 


Re:
NuCo2 Fixed Rate Series 2008-1, Senior and/or Subordinated Notes, Class


 


Ladies
and Gentlemen:


 


Prior
to obtaining access to any such reports or certificates located on the Trustee’s
website, I hereby confirm I am one of the following:


 


o            I am a current beneficial Note
Owner.


 


o            I am a [Person] [prospective purchaser of Notes]
requesting information solely for use in evaluating an investment in [the Series 2008-1
Notes] [and/or any other Series of Notes] and will otherwise keep such
information confidential.


 


	
   

  	
  Cusip:

  	
   

  	
   

  	
   

  
	
   

  	
  Class:

  	
   

  	
   

  	
   

  
	
   

  	
  Principal
  Amount:

  	
   

  	
   

  	
   

  
						



 


Requesting Party (Purchaser/Prospective
Note Owner):


 


	
  Name: 

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  
	
  City, State, Zip:

  	
   

  	
   

  	
   

  
	
  Contact Name:

  	
   

  	
   

  	
   

  
	
  Phone Number:

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  	
   

  
	
  DTC Participant Number:

  	
   

  	
   

  	
   

  
	
  DTC Participant Name (Nominee):

  	
   

  	
   

  
							



 

















 


Selling Party (Seller):


 


	
  Name:

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  
	
  City, State, Zip:

  	
   

  	
   

  	
   

  
	
  Contact Name:

  	
   

  	
   

  	
   

  
	
  Phone Number:

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  	
   

  
	
  DTC Participant Number:

  	
   

  	
   

  	
   

  
	
  DTC Participant Name (Nominee):

  	
   

  	
   

  	
   

  
								



 


 


	
  Trade Date:

  	
   

  	
   

  



 


 


	
  Signature
  (Purchaser/Prospective Note Owner):

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
					



 


 


	
  Signature (Seller):

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
				



 


Capitalized terms used in
and not otherwise defined herein shall have the meaning assigned to them in the
Indenture.


 

















 


Exhibit G


 


FORM OF QUARTERLY CUSTOMER CONTRACTS REPORT


[Attached]


 


The Quarterly Customer
Contracts Report shall be delivered together with the following statement by
the Master Issuer (or by the Transaction Manager on its behalf):


 


This certificate is being delivered pursuant to Section 4.1(h) of
the Base Indenture, dated as of May 28, 2008, by and among NuCO2 Funding
LLC, NuCO2 LLC, NuCO2 Supply LLC, NuCO2 IP LLC and U.S. Bank National
Association, as Trustee, Administrative Agent and Securities Intermediary, as
amended, supplemented, or otherwise modified from time to time by supplements
thereto in accordance with its terms (the “Base Indenture”).  Capitalized terms not otherwise defined
herein, shall have the meaning ascribed to them in the Base Indenture.  The undersigned officer of the [Master
Issuer] [Transaction Manager] hereby certifies that (i) to the knowledge
of the undersigned the historical information contained herein is true and
correct in all material respects, and (ii) the forward looking information
contained herein has been prepared in good faith based on information in the
undersigned’s possession and/or reasonably available to the undersigned on the
date hereof.


 


[NUCO2 FUNDING LLC] [NUCO2 MANAGEMENT LLC]


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 















 


NuCO2


 


Customer
Activations and Attrition


FY04 to
FY07


 


	
   

  	
   

  	
  FY04

  	
   

  	
  FY05

  	
   

  	
  FY06

  	
   

  	
  FY07

  	
   

  
	
   

  	
   

  	
  Q1

  	
   

  	
  Q2

  	
   

  	
  Q3

  	
   

  	
  Q4

  	
   

  	
  Q1

  	
   

  	
  Q2

  	
   

  	
  Q3

  	
   

  	
  Q4

  	
   

  	
  Q1

  	
   

  	
  Q2

  	
   

  	
  Q3

  	
   

  	
  Q4

  	
   

  	
  Q1

  	
   

  	
  Q2

  	
   

  	
  Q3

  	
   

  	
  Q4

  	
   

  
	
  Gross Activations, Bulk

  	
   

  	
  2,630

  	
   

  	
  2,938

  	
   

  	
  2,720

  	
   

  	
  3,526

  	
   

  	
  2,556

  	
   

  	
  3,196

  	
   

  	
  3,595

  	
   

  	
  3,451

  	
   

  	
  2,954

  	
   

  	
  3,303

  	
   

  	
  4,041

  	
   

  	
  2,980

  	
   

  	
  2,858

  	
   

  	
  3,034

  	
   

  	
  2,474

  	
   

  	
  2,450

  	
   

  
	
  Acquisition

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  9,397

  	
   

  	
  (361

  	
  )

  	
  1,132

  	
   

  	
  2,485

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  3,087

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HP Change

  	
   

  	
  (65

  	
  )

  	
  (69

  	
  )

  	
  (62

  	
  )

  	
  (35

  	
  )

  	
  (23

  	
  )

  	
  (26

  	
  )

  	
  (48

  	
  )

  	
  (19

  	
  )

  	
  21

  	
   

  	
  501

  	
   

  	
  98

  	
   

  	
  48

  	
   

  	
  51

  	
   

  	
  (39

  	
  )

  	
  (107

  	
  )

  	
  (191

  	
  )

  
	
  Gross Attrition, Bulk

  	
   

  	
  (1,239

  	
  )

  	
  (1,374

  	
  )

  	
  (1,423

  	
  )

  	
  (809

  	
  )

  	
  (1,202

  	
  )

  	
  (1,122

  	
  )

  	
  (1,451

  	
  )

  	
  (1,140

  	
  )

  	
  (1,553

  	
  )

  	
  (1,340

  	
  )

  	
  (1,710

  	
  )

  	
  (1,640

  	
  )

  	
  (1,318

  	
  )

  	
  (1,431

  	
  )

  	
  (2,210

  	
  )

  	
  (2,766

  	
  )

  
	
  All Customers

  	
   

  	
  76,117

  	
   

  	
  77,612

  	
   

  	
  78,847

  	
   

  	
  81,529

  	
   

  	
  82,860

  	
   

  	
  94,305

  	
   

  	
  96,040

  	
   

  	
  99,464

  	
   

  	
  103,371

  	
   

  	
  105,835

  	
   

  	
  108,264

  	
   

  	
  112,739

  	
   

  	
  114,330

  	
   

  	
  115,894

  	
   

  	
  116,051

  	
   

  	
  115,544

  	
   

  



 


	
   

  	
   

  	
  FY04
  Total

  	
   

  	
  FY05
  Total

  	
   

  	
  FY06
  Total

  	
   

  	
  FY07
  Total

  	
   

  
	
  Gross Activations, Bulk

  	
   

  	
  11,814

  	
   

  	
  12,798

  	
   

  	
  13,278

  	
   

  	
  10,816

  	
   

  
	
  Acquisition

  	
   

  	
  —

  	
   

  	
  10,168

  	
   

  	
  5,572

  	
   

  	
  —

  	
   

  
	
  HP Change

  	
   

  	
  (231

  	
  )

  	
  (116

  	
  )

  	
  668

  	
   

  	
  (286

  	
  )

  
	
  Gross Attrition, Bulk

  	
   

  	
  (4,845

  	
  )

  	
  (4,915

  	
  )

  	
  (6,243

  	
  )

  	
  (7,725

  	
  )

  
	
  All Customers

  	
   

  	
  81,529

  	
   

  	
  99,464

  	
   

  	
  112,739

  	
   

  	
  115,544

  	
   

  



 














 


Schedule
7.3


 


CONSENTS


 


None.


 

















 


Schedule
7.6


 


PLANS


 


None.


 

















 


Schedule
7.7


 


PROPOSED
TAX ASSESSMENTS


 


None.


 

















 


Schedule
7.13(a)


 


NON-PERFECTED
LIENS


 


Liens in respect of motor vehicles owned by any of the
Co-Issuers have not been perfected.


 

















 


Schedule
7.19


 


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

  



 

















 


Schedule
8.11


 


LIENS


 


Unless otherwise requested by the Trustee or the
Administrative Agent, no further action shall be undertaken to perfect any
Liens with respect to motor vehicles owned by the Co-Issuers.


 

















 


Schedule
8.29


 


INSURANCE
POLICIES HELD BY CO-ISSUERS, TRANSACTION MANAGER AND NUCO2 AS OF THE CLOSING DATE


 


	
  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

  



 














 


Schedule 10.1(a)


 


ADMINISTRATIVE
AGENT CALCULATIONS


 


Monthly
Manager’s Certificate (and Noteholders’ Statement)


Releases from
Concentration Account


Releases from
Equipment Holder Master Account


Investment Income
from different accounts


Additional Senior
Note Principal Payment Amount


Additional
Subordinated Note Principal Payment Amount


Payments to and
from hedge counterparties


Transaction
Management Fee


Senior Note
Interest Reserve Required Amount


Senior Note
Interest Reserve Release Amount


Senior Note Interest
Reserve Refill Amount


Contributions
Account Release Amount


Termination
Amounts Release Amount


Senior Note
Interest Accrued and Unpaid


Subordinate Note
Interest Accrued and Unpaid


Class A-2 and
Class A-3 VFN commitment fees


Required
Amortization Amount


Note Make Whole
Premium Amounts


Senior Note
Contingent Additional Interest Accrued and Unpaid


Subordinated Note
Contingent Additional Interest Accrued and Unpaid


SPE Operating
Expenses subject to SPE Operating Expenses Cap


Interest and
Principal distribution amounts per $1000 of Notes


Calculation of Net
Cash Flow from Weekly Servicer Reports


Calculation of Net
Cash Flow from Weekly Servicer Reports (excluding Contributions)


Calculation of
Debt Service


Three Month DSCR


Three Month DSCR
(excluding contributions)


One-Year DSCR


One-Year DSCR
(excluding contributions)


Pro Forma Net Cash
Flow


Pro Forma Debt
Service


Pro Format DSCR


Class A-2
Maximum Draw Amount


Compliance with
different triggers based on Three-Month DSCR and One-Year DSCR levels


 


Weekly
Manager’s Certificate


Adjusted Customer
Collections


Delivery and Customer
Services Fee


Equipment Holder
Operating Expense Fees Cap


Equipment Holder CAPEX
Fees


Employee Services Fee