Exhibit 10.22


 


DELIVERY AND CUSTOMER SERVICES AGREEMENT


 


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


 


RECITALS


 


WHEREAS,
the Contract Holder has acquired, entered into and, from time to time, will
enter into written and unwritten contracts (“Customer Contracts”) with
third party customers (“Customers”) or has acquired Contract Revenue
Streams related to Customer Contracts which could not be assigned to the
Contract Holder for or related to, among other things, (i) the delivery of
liquid and high pressure carbon dioxide and other gases (“Bulk Gases”)
and related tanks and other equipment (“Customer Location Equipment”), (ii) whether
on-site or off-site, the replacement, refurbishment, maintenance and servicing
of Customer Location Equipment (the “Maintenance Services”) and (iii) products
and services related to the foregoing (the services in clauses (i) through
(iii) collectively, the “Delivery Services”);


 


WHEREAS,
the Contract Holder desires to (i) service and collect on all Customer
Contracts and Contract Revenue Streams that it owns and will own, including
without limitation, working with delinquent Customers and pursing remedies
against defaulting Customers, (ii) maintain relationships with Customers
by providing Customers with quality resources to satisfy inquiries and deal
with emergency issues related to Bulk Gases and their Customer Location
Equipment, and (iii) expand the number of Customer Contracts through new
Customer Contracts with existing Customers and new Customers (collectively, “Customer
Services”);


 


WHEREAS,
the Contract Holder also desires to provide ancillary services to Customers in
connection with Bulk Gases and Customer Location Equipment as the need may
arise from time to time (“Ancillary Services”);


 


WHEREAS,
the Equipment Holder (i) is party to various supply contracts for Bulk
Gases and Customer Location Equipment, (ii) maintains and operates various
service locations equipped to (A) receive and deliver Bulk Gases and (B) service
Customer Location Equipment, (iii) owns, leases and operates delivery
trucks and other delivery equipment capable of receiving Bulk Gases and
Customer Location Equipment at its service locations and delivering Bulk Gases
and delivering and receiving Customer Location Equipment at Customer locations;
(iv) maintains and operates a facility to manage and otherwise deal with
inquiries and emergency issues related to Bulk Gases 


 


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and
Customer Location Equipment and (v) has arrangements for the personnel
required to conduct each of the foregoing activities; and


 


WHEREAS,
the Contract Holder desires to engage the Equipment Holder to perform (i) the
Delivery Services under the Customer Contracts, (ii) Customer Services, (iii) Ancillary
Services and (iv) certain other services described herein on its behalf
and the Equipment Holder is willing to perform such services pursuant to the
terms of this Agreement.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:


 


ARTICLE
I.


 


DEFINITIONS


 


Section 1.1. 
Defined Terms.


 


(a)           Except as otherwise
expressly provided herein or unless the context otherwise requires, the
capitalized terms used, but not defined herein shall have the respective
meanings specified in Annex A of that certain base indenture, dated as of May 28,
2008, by and among NuCO2 Funding LLC (the “Master Issuer”), NuCO2 IP LLC, the Contract Holder, the Equipment
Holder and the Administrative Agent and Trustee, as supplemented by that
certain Series 2008-1 Supplement dated as of the same date (collectively,
the “Indenture”), which is incorporated herein by this reference.  The definitions of such terms are equally
applicable both to the singular and plural forms of such terms.  As used in this Agreement, “Intercompany
Agreement MAE” shall mean a material adverse effect on (i) the
business, assets, liabilities, condition (financial or otherwise), results of
operations or prospects of the Co-Issuers or (ii) the ability of the
Co-Issuers to perform (A) their obligations under any of the Intercompany
Agreements or (B) their obligations under the Customer Contracts (taken as
a whole).  As used in this Agreement, “Intercompany
Agreement” shall mean any of this Agreement, the Employee Services
Agreement, the Securitization IP License Agreement, the Contribution
Agreements, the Transaction Management Agreement, the Master Management
Agreement and any other agreement entered into by and between the Affiliates of
NuCO2 pursuant to or related to the Indenture.


 


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


 


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ARTICLE
II.


 


CONTRACT SERVICES


 


Section 2.1. 
Delivery Services.  The
Equipment Holder hereby agrees to diligently and timely perform, on behalf of
the Contract Holder,  all of the Delivery
Services and other duties and obligations imposed upon the Contract Holder
under and pursuant to each assigned Customer Contract and Contract Revenue
Stream.  The Equipment Holder’s
obligations hereunder shall be applicable to all Customer Contracts existing on
the date hereof (the “Existing Customer Contracts”), all Contract
Revenue Streams and all future Customer Contracts which the Contract Holder may
enter into or acquire from time to time during the term of this Agreement.  Concurrently, with the execution of this
Agreement, the Contract Holder has delivered to the Equipment Holder a listing
of all Existing Customer Contracts (which may be in the form of Contributed
Assets Schedules received by the Contract Holder from the Master Issuer) and
copies thereof (either in hard copy or electronic format) and the Equipment
Holder hereby acknowledges receipt thereof. 
The Contract Holder hereby agrees to promptly advise the Equipment
Holder and provide copies of each new Customer Contract entered into or
acquired by the Contract Holder as well as any modifications, amendments or
other changes to a Customer Contract; provided, the Contract Holder will not be
required to do so if the Equipment Holder is aware of a new Customer Contract
or a modified Customer Contract through its performance of Customer Services
hereunder.


 


Section 2.2. 
Customer Services.   The
Equipment Holder hereby agrees to diligently and timely perform various
services related to the Customers and Customer Contracts on behalf of the
Contract Holder (collectively, the “Customer Services”) which shall
include without limitation the following:


 


(a)           perform standard accounting
services and general record keeping services with respect to the Customer
Contracts and related Customer Location Equipment;


 


(b)           respond to telephone and
written inquiries from Customers in a prompt and thorough manner;


 


(c)           provide, or contract for the
provision of, a Customer services call center (a “Call Center”) which
will, among other things, provide a facility for the receipt of calls from
Customers in respect of requests for service, complaints regarding service, and
emergency conditions, manned on a 24 hour basis;


 


(d)           invoice Customers on a
regular basis and contact Customers to effect collections and to discourage
delinquencies in the payment of amounts due under Customer Contracts and other
Ancillary Services and doing so by any lawful means;


 


(e)           take such other action as
may be necessary or appropriate in the discretion of the Equipment Holder
(after consultation with the Master Manager) for the purpose of collecting
amounts due from Customers;


 


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(f)            work and cooperate with the
Master Manager and the Contract Holder to (i) monitor industry conditions
and adopt practices (including revision, from time to time,  of the Collection Policy, the current version
of which is attached hereto as Exhibit A) to meet changing needs of
Customers and the Bulk Gases business and (ii) develop business strategies
to continue to develop and expand the Contract Holder’s Customer base and the
products and services offered to such Customers;


 


(g)           provide marketing services
for the Contract Holder with the objective of increasing the number of Customer
Contracts through new Customer Contracts with existing Customers and new
Customers;


 


(h)           provide credit underwriting
and monitoring services of existing Customers and potential Customers;


 


(i)            negotiate Customer Contracts
and the terms of Ancillary Services with Customers and, subject to Section 2.6(d) below,
prepare written Customer Contracts for execution by Customers and by the
Contract Holder or by the Transaction Manager on behalf of the Contract Holder;


 


(j)            subject to Section 2.6(d) below,
use commercially reasonable efforts to convert any non-written Customer
Contracts to written Customer Contracts;


 


(k)           on behalf of the Contract
Holder, advance all due and payable state taxes to the applicable state taxing
authorities and report tax information to Customers and taxing authorities to
the extent required by law;


 


(l)            work with the Contract
Holder, the Transaction Manager and the Master Manager to ensure that all the
Equipment Holder’s collection, servicing and origination practices are in
material compliance with Requirements of Law;


 


(m)          with respect to Customer
Location Equipment, as provided in Sections 2.4 and 2.5 hereof;
and


 


(n)           use commercially reasonable
efforts to mitigate service outages to Customers.


 


Section 2.3. 
Ancillary Services.  The Equipment Holder agrees to use
commercially reasonable efforts to comply with all Customer requests for
Ancillary Services not covered under Customer Contracts.


 


Section 2.4. 
Sale of Customer Location Equipment.   To the extent that a Customer requests to
purchase a new or replacement piece of Customer Location Equipment, the
Equipment Holder shall use commercially reasonable efforts to procure such
Customer Location Equipment and shall promptly (i) provide such Customer
Location Equipment to the Contract Holder for resale to such Customer and (ii) deliver
such Customer Location Equipment to such Customer.  With respect to each piece of Customer
Location Equipment that is sold to a Customer, the Contract Holder shall pay 


 


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the applicable Customer Location Equipment Costs.   The Contract Holder shall pay the Equipment
Holder such Customer
Location Equipment Costs on the Weekly Allocation Date immediately following
the Contract Holder’s receipt of payment from the related Customer.


 


Section 2.5. 
Master Lease of Customer Location Equipment.   To the extent a Customer Contract (including
but not limited to any Existing Customer Contract) includes a lease of Customer
Location Equipment to a Customer, the Equipment Holder hereby agrees to and
hereby leases such Customer Location Equipment to the Contract Holder.   The Equipment Holder acknowledges and agrees
that pursuant to a Customer Contract, the Contract Holder is permitted to and
will sublease such Customer Location Equipment to the related Customer.  The Contract Holder agrees that title to such
Customer Location Equipment shall at all times remain vested in the Equipment
Holder unless transferred to the Contract Holder or Customer through sale.  The Contract Holder shall not hold itself out
at any time as having title to any Customer Location Equipment and shall keep
the Customer Location Equipment free from levies, liens and encumbrance of all
kinds. All lease payments for Customer Location Equipment by the Contract
Holder will be included in the Delivery and Customer Services Fee on each
Weekly Allocation Date.


 


Section 2.6. 
Servicing Standard.


 


(a)           The Equipment Holder agrees
to provide all of the services described in this Article II (the “Contract
Services”) using that standard of care (i) (A) used by the Master
Manager prior to the Closing Date in managing and servicing its Customers’
needs and (B) to the extent of changed circumstances, practices,
technologies, strategies or implementation methods, procedures and degrees of
care, that is at least equal or superior to that employed by third parties
generally recognized as competent managers of the business of delivering
services similar to Contract Services, (ii) as would enable the Equipment
Holder to provide in all material respects all of the Delivery Services and any
agreed upon Ancillary Services and to comply in all material respects with all
of the other duties and obligations of the Contract Holder under the Customer
Contracts and (iii) in compliance in all material respects with all
applicable requirements of law (the “Servicing Standard”).


 


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


 


(c)           The Equipment Holder shall
consult with and obtain written approval from the Contract Holder for any
action it may propose to take in connection with a Customer 


 


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or a Customer Contract that
is not within the ordinary course of business or expressly permitted under such
Customer Contract or the agreed-upon terms with a Customer with respect to
Ancillary Services.  Neither party
hereunder shall take any action pursuant to this Agreement which is
inconsistent with, or would cause the other party to default under, violate or
otherwise breach any provision of a Customer Contract or the Transaction
Documents to which such Person is a party.


 


(d)           The Equipment Holder
agrees that in performing its duties under Section 2.2(i) and (j) above,
it will not originate any new unwritten Customer Contracts except for unwritten
Customer Contracts (i) with McDonald’s Corporation, its Affiliates and
franchisees and (ii) with new owners of Customers at the same Customer
location for which an unwritten or written Customer Contracts already exists; provided,
however, that the Customer Contracts under the Fill Plan may be
unwritten if the Equipment Holder, after consultation with the Master Manager
determines that it is commercially reasonable to enter into such Customer
Contracts in an unwritten form.


 


ARTICLE
III.


 


COVENANTS


 


Section 3.1. 
Service Locations.  During the term of this Agreement, the
Equipment Holder agrees, in accordance with the Servicing Standard and to the
extent necessary to deliver and perform the Contract Services, to acquire, own,
hold, lease, contract for and otherwise maintain and operate service locations
(each, a “Service Location”) where (i) Bulk Gases can be received,
stored and transferred to Delivery Equipment (as defined below), (ii) Customer
Location Equipment can be received, stored, maintained, refurbished, serviced
and transferred to Delivery Equipment for delivery to Customers, (iii) Service
Location Equipment (as defined below), Maintenance Equipment and Delivery
Equipment can be housed, refurbished and serviced and (iv) other Customer
related and delivery activities related to Delivery Services can be based.  The Equipment Holder agrees to maintain, at
all times, sufficient Service Locations as the Equipment Holder deems necessary
to deliver and perform the Contract Services in accordance with the Servicing
Standard.


 


Section 3.2. 
Service Location Equipment.  During the term of this Agreement, the
Equipment Holder agrees, in accordance with the Servicing Standard, to acquire,
own, hold, lease, contract for and otherwise maintain suitable Bulk Gas storage
tanks, equipment to operate such storage tanks and other related equipment (“Service
Location Equipment”).  The Equipment
Holder agrees to maintain, at all times, sufficient Service Location Equipment
as the Equipment Holder deems necessary to deliver and perform the Contract
Services in accordance with the Servicing Standard.


 


Section 3.3. 
Maintenance Equipment.  During the term of this Agreement, the
Equipment Holder agrees, in accordance with the Servicing Standard, to acquire,
own, hold, lease, contract for and otherwise maintain equipment for the performance of the Maintenance
Services (“Maintenance Equipment”). 
The Equipment Holder agrees to maintain, at all times, sufficient
Maintenance Equipment as the Equipment Holder deems 


 


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necessary to deliver and perform the Contract
Services in accordance with the Servicing Standard.


 


Section 3.4. 
Delivery Equipment.  During the term of this Agreement, the
Equipment Holder agrees, in accordance with the Servicing Standard, to acquire,
own, hold, lease, contract for and otherwise maintain delivery trucks, related
tanks and other equipment used to perform the Delivery Services (“Delivery
Equipment”).  The Equipment Holder
agrees to maintain all consents, approvals, authorizations, permits and
licenses required by any Governmental Authority in connection with the
Equipment Holder’s provision of the Delivery Services and the Equipment Holder’s
acquisition, ownership, holding, leasing, contracting and/or operation of the
Delivery Equipment.  The Equipment Holder
agrees to maintain, at all times, sufficient Delivery Equipment as the
Equipment Holder deems necessary to deliver and perform the Contract Services
in accordance with the Servicing Standard.


 


Section 3.5. 
Supply Contracts.  
During the term of this Agreement, the Equipment Holder agrees to use
commercially best efforts to enter into and maintain contracts with suppliers
of Bulk Gases, Customer Location Equipment, Maintenance Equipment, Delivery
Equipment, Service Location Equipment and such other products and services as
the Equipment Holder deems necessary to deliver and perform the Contract
Services hereunder in accordance with the Servicing Standard.


 


Section 3.6. 
Call Center.   During the
term of this Agreement, the Equipment Holder agrees, in accordance with the
Servicing Standard, to acquire, own, hold, lease, contract for and otherwise
maintain a facility for a Call Center. 
The Equipment Holder agrees to monitor such Call Center and to arrange
for additional personnel and other resources as are necessary to meet Customer
service demands.


 


Section 3.7. 
Other Equipment and Facilities.  During the term of this Agreement, the
Equipment Holder agrees, in accordance with the Servicing Standard, to acquire,
own, hold, lease, contract for and otherwise maintain sufficient office space,
computers, software, telephones and other equipment and supplies as the
Equipment Holder deems necessary to deliver and perform the Contract Services
hereunder in accordance with the Servicing Standard.  The Equipment Holder also agrees to maintain
a disaster recovery center at a location other than its principal place of
business.


 


Section 3.8. 
Personnel.  The Equipment
Holder shall enter into and perform under an employee services agreement with
NuCO2 Management LLC (the “Employee Services
Agreement”) in order to have sufficient personnel (with the requisite
skills, experience, licensing and permits) to (i) properly staff all
Service Locations and the Call Center, (ii) operate Service Location
Equipment, Maintenance Equipment and Delivery Equipment, (iii) otherwise
satisfy the Contract Services and (iv) provide all necessary
administrative and supervisory functions.  
The Equipment Holder agrees to maintain and, from time to time upon
consultation with the Contract Holder and the Master Manager, update a list
(the “Authorized Signatory List”) of (i) persons (which may be by
specific name or title) that are authorized to execute agreements,
certificates, instruments and other documents on behalf of the Contract Holder
(each, an “Authorized Signatory”) 


 


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and (ii) the types of agreements, certificates, instruments and
other documents that each Authorized Signatory is authorized to execute on
behalf of the Contract Holder (with respect to each Authorized Signatory, its “Authorized
Powers”).   The Contract Holder
hereby grants a power of attorney to each Authorized Signatory on the
Authorized Signatory List for the Authorized Powers specified therein.  The Contract Holder further acknowledges and
agrees that the Equipment Holder intends to, and is hereby authorized to, name
any personnel procured under the Employee Services Agreement as an Authorized
Signatory.  Notwithstanding the
foregoing, the Contract Holder may modify or revoke its grant of power of
attorney with respect to any or all Authorized Signatories at any time.


 


ARTICLE
IV.


 


DEPOSIT OF CUSTOMER
COLLECTIONS


 


Section 4.1. 
Customer Collections.  The Equipment Holder acknowledges and agrees
that all Customer Collections shall be the property of the Contract
Holder.  All such Customer Collections
received by the Equipment Holder shall be deposited by the Equipment Holder
into the Concentration Account within two Business Days after actual knowledge
of receipt thereof.


 


ARTICLE
V.


 


DELIVERY AND CUSTOMER
SERVICES FEE


 


Section 5.1. 
Delivery and Customer Services Fee.  In consideration of the Equipment Holder’s
agreement to perform the Contract Services, the Contract Holder hereby agrees
to pay to the Equipment Holder on each Weekly Allocation Date, the Delivery and
Customer Services Fee plus any Sales Tax Reimbursements, Property Tax
Reimbursements, Customer
Location Equipment Costs required to be paid by the Contract Holder from
Customer Collections.  The “Delivery
and Customer Services Fee” shall mean, for a Weekly Allocation Date, an
amount equal to 98% of Adjusted Customer Collections deposited to the
Concentration Account during the preceding Weekly Collection Period.   All payments by the Contract Holder to the
Equipment Holder shall be made to the Equipment Holder Master Account.


 


ARTICLE
VI.


 


TERM OF AGREEMENT


 


Section 6.1. 
Term.   The term of this Agreement shall commence on
the date hereof (the “Effective Date”) and, except as provided in Article IX,
expire on the last day of each calendar month thereafter; provided, however,
that the Contract Holder may renew this Agreement for the following calendar
month if it gives the Equipment Holder prior written notice of such election
(which notice will be included in the Monthly Manager’s Certificate which the
Contract Holder will provide to the Transaction 


 


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Manager for further delivery on the Contract Holder’s behalf, as
provided in Section 4.1(b) of the Base Indenture).  Should the Contract Holder fail to provide a
written notice of renewal, it may, at any time prior to the end of the next
calendar month, deliver a notice to the Equipment Holder that it wishes to
reinstate this Agreement, in which case this Agreement shall be deemed to have
been renewed for such calendar month. 
The Equipment Holder may terminate this Agreement any time following the
date that the Indenture has been satisfied and discharged in accordance with
the terms thereof.


 


ARTICLE
VII.


 


FORCE MAJEURE


 


Section 7.1. 
Failure to perform. 
Failure of either party to perform any of its obligations under the
provisions of this Agreement by reason of any of the following events (each, a “Force
Majeure Event”) shall not constitute a breach of this Agreement: strikes,
picket lines, boycott efforts, fires, floods, freezes, hail, accidents, war
(whether or not declared), revolution, riots, insurrections, acts of God, acts
of government, acts of the public enemy, scarcity or rationing of gasoline or
other fuel, inability to obtain materials or labor, or causes which are
reasonably beyond the control of the party subject to such events (the “Non-Performing
Party”).  In the event of a Force
Majeure Event, the Non-Performing Party shall immediately notify the other
party in writing and shall use its best efforts to limit and mitigate the
adverse consequences arising out of such Force Majeure Event.


 


ARTICLE
VIII.


 


CONFIDENTIALITY


 


Section 8.1. 
Confidential Information.  Except as set forth in this Article VIII
or as the parties hereto may otherwise agree in writing, the parties shall keep
strictly confidential the terms and conditions of this Agreement and any and
all information received from the other party hereunder and that is non-public
or proprietary, or is otherwise designated as confidential by such party (collectively,
“Confidential Information”) and, in addition, shall not use, disclose,
make available, disseminate or communicate the same to any third party (except
on a like confidential basis to their respective professional advisors and
consultants with a need to know), except to the extent necessary for the
purpose of carrying out the activities authorized by this Agreement and except
to the Indenture Trustee, the Administrative Agent, the Rating Agencies, their
respective legal counsel and representatives in connection with their duties or
rights under the Indenture.  The parties
shall use their best efforts to cause their respective Affiliates and employees
to observe the provisions of this Article VIII.  Confidential Information may be disclosed by
a party to comply with any law, governmental regulation or order of a court or
administrative agency having jurisdiction over the subject matter or, in the
opinion of its counsel, to comply with the requirements of any stock exchange
on which the shares of such party are listed; provided, however,
that (1) the disclosing party shall take all reasonable measures to impose
an obligation to


 


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maintain the confidentiality of the
Confidential Information disclosed and (2) if legally permissible and
reasonably possible, the non-disclosing party shall be notified of any
Confidential Information to be disclosed prior to any such disclosure; otherwise,
prompt notice of such disclosure shall be given to the non-disclosing party
after any such disclosure.


 


Section 8.2. 
Exceptions.  The
obligations set out in this Article VIII shall not apply to information
which:


 


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


 


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


 


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


 


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


 


ARTICLE
IX.


 


TERMINATION


 


Section 9.1. 
Notice of Termination.   The Contract Holder may terminate this
Agreement with or without cause at any time by giving at least 10 Business Days’
prior written notice to the Equipment Holder.


 


Section 9.2.  Default.  The Contract Holder may terminate this
Agreement by giving written notice to the Equipment Holder upon the occurrence
of any of the following events:


 


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


 


(b)           default in the performance,
or breach, of any covenant of the Equipment Holder in this Agreement (not
referenced in clause (a) above), and continuance of such default or breach
for a period of 30 days after the earlier of (i) the date on which an
officer of the Equipment Holder first has actual, personal knowledge of such
default or breach and (ii) the date on which written notice, specifying in
reasonable detail such 


 


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default or breach and
requiring it to be remedied and stating that such notice is a “Notice of
Default” hereunder shall have been given to the Equipment Holder; or


 


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


 


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


 


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


 


(f)            a final non-appealable
judgment shall be entered by any court against the Equipment Holder for the
payment of money, the uninsured portion of which, together with the uninsured
portion of all other outstanding final non-appealable judgments against the
Equipment Holder, exceeds (i) $100,000 in the aggregate and either (A) such
judgment is not discharged within the period of 30 days after entry thereof or (B) there
shall be any period of 30 consecutive days during which a stay of enforcement
of such judgment shall not be in effect, or (ii) for equitable or
injunctive relief that has an Intercompany Agreement MAE.


 


Section 9.3. 
Procedures on Termination.  Upon the expiration or earlier termination of
this Agreement for any reason, all the Equipment Holder’s rights hereunder
shall automatically revert to the Contract Holder and the Equipment Holder
shall no longer be entitled to receive any payments hereunder, except for
services performed in accordance with the terms of this Agreement prior to the
date of such expiration or earlier termination. 
Further, the Equipment Holder agrees that, upon any such expiration or
termination of this Agreement, it shall:


 


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


 


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


 


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


 


ARTICLE
X.


 


REPRESENTATIONS OF THE
CONTRACT HOLDER


 


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


 


(a)           Organization, Power,
Qualification.  The
Contract Holder is a limited liability company duly organized, validly existing
and in good standing under the laws of Delaware, has the power, legal right and
authority to own its properties and to carry on its business as now being and
hereafter proposed to be conducted and is duly qualified and is in good
standing and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification or authorization and the failure to be so qualified would,
individually or in the aggregate, have an Intercompany Agreement MAE.


 


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


 


(c)           Non-Contravention.  The execution, delivery and performance of
this Agreement in accordance with its terms and the consummation of the
transactions contemplated hereby by the Contract Holder do not and will not (i) require
any consent or approval of any Person, except for consents and approvals that
have already been 


 


12

















 


obtained, (ii) violate
any Requirements of Law, or (iii) conflict with, result in a breach of, or
constitute a default under its Organization Documents, as the same may have
been amended or restated, or conflict with, result in a breach of or constitute
a default under (with or without notice or lapse of time or both) any
indenture, agreement or other instrument, to which the Contract Holder is a
party or by which it or any of its properties or assets may be bound, which
conflict, breach or default would have an Intercompany Agreement MAE.


 


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


 


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


 


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


 


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


 


(h)           Customer Contracts.  The Contract Holder either has good title to
all of the Customer Contracts delivered to the Equipment Holder pursuant to Section 2.1
hereof or has been assigned the related Contract Revenue Stream.


 


ARTICLE
XI.


 


REPRESENTATIONS OF THE
EQUIPMENT HOLDER


 


Section 11.1. 
Representations and Warranties.  The Equipment Holder represents and warrants
to the Contract Holder that all of the following representations and warranties
are true and correct as of the Effective Date:


 


(a)           Organization, Power,
Qualification.  The
Equipment Holder is a limited liability company duly organized, validly
existing and in good standing under the laws of Delaware, has the power, legal
right and authority to own its properties and to carry on its business as now
being and hereafter proposed to be conducted and is duly qualified and is in
good standing and authorized to do business in each jurisdiction in which the character
of its properties or the nature of its business requires such qualification or
authorization and the failure to be so qualified would, individually or in the
aggregate, have an Intercompany Agreement MAE.


 


13

















 


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


 


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


 


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


 


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


 


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


 


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


 


(h)           Capability.  The Equipment Holder has received the lists
and Customer Contracts described in Section 2.1 hereof and represents and
warrants that it has the necessary number or amount of Service Locations,
Service Location Equipment, Delivery Equipment, Supply Contracts and personnel
to deliver and perform the Contract Services in accordance with the Servicing
Standard.


 


14

















 


ARTICLE
XII.


 


SECURITIZATION IP LICENSE


 


Section 12.1. 
Securitization IP License.


 


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


 


(b)           The Equipment Holder
acknowledges that it is not the owner of the Securitization IP and that its
right to use the Securitization IP is derived solely from this Agreement.  The Equipment Holder acknowledges that the IP
Holder is the owner or the licensee of the Securitization IP and that the
Contract Holder is granting a sub-license to the Equipment Holder in accordance
with and subject to the Securitization IP License Agreement.  The Equipment Holder acknowledges that it
shall not acquire or claim adversely to the IP Holder or the Contract Holder
the right, title or interest in and to any of the Securitization IP or any of
the goodwill related thereto.  The
Equipment Holder acknowledges that each and every use of the Securitization IP
by the Equipment Holder under this Agreement and any and all goodwill resulting
from the Equipment Holder’s use of the Securitization IP shall at all times
inure to the benefit of the IP Holder and the Equipment Holder agrees to
execute any and all documents that may be submitted to the Equipment Holder
reasonably necessary to carry out the intention of this covenant.  This covenant shall survive termination of
this Agreement for any reason.


 


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


 


ARTICLE
XIII.


 


MISCELLANEOUS


 


Section 13.1. 
Notices.  All notices
from one party to the other party shall be in writing and shall be sent to the
other party’s address by (a) delivery by a reputable courier service or by
certified mail (return receipt requested) or (b) by facsimile transmission
(or the equivalent transmission providing written confirmation of receipt at
the facsimile number of the addressee) with a copy sent in either manner
described in clause (a), all charges prepaid. 
The date of receipt or refusal to accept shall be the effective date of
any such notice.


 


15

















 


	
  The
  Contract Holder

  	
   

  	
  The
  Equipment Holder

  
	
  NuCO2 LLC

  	
   

  	
  NuCO2 Supply LLC

  
	
  2800
  S.E. Market Place

  	
   

  	
  2800
  S.E. Market Place

  
	
  Stuart,
  FL 34997

  	
   

  	
  Stuart,
  FL 34997

  
	
  Attention:
  General Counsel

  	
   

  	
  Attention:
  General Counsel

  



 


Section 13.2. 
Entire Agreement.  This
Agreement and the other Related Documents set forth the entire agreement and
understanding among the parties with reference to the transactions contemplated
hereby and supersede any and all other oral or written agreements heretofore
made.


 


Section 13.3. 
Severability.  If any
provision of this Agreement or the application of any provision hereof to any
Person or in any circumstances is held invalid, the remainder of this Agreement
and the application of such provision to other Persons or circumstances shall
not be affected unless the provision held invalid shall substantially impair
the benefits of the remaining portions of this Agreement.


 


Section 13.4. 
CONSENT TO JURISDICTION.


 


EACH PARTY HERETO HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR
FEDERAL COURT SITTING IN NEW YORK CITY IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT, AND HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED
BY LAW, IN SUCH FEDERAL COURT.  EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING.  EACH PARTY HERETO
IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING, OR DELIVERY, OF COPIES OF SUCH PROCESS TO SUCH
PARTY AT ITS ADDRESS SPECIFIED IN SECTION 13.1 HEREOF.  EACH PARTY AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW.


 


Section 13.5. 
Waiver of Jury Trial.  The parties hereto each waive their
respective rights to a trial by jury of any claim or cause of action based upon
or arising out of or related to this Agreement, or the transactions
contemplated hereby, in any action, proceeding or other litigation of any type
brought by any of the parties against any other party or parties, whether with
respect to contract claims, tort claims, or otherwise.  The parties hereto each agree that any such
claim or cause of action shall be tried by a court trial without a jury.  Without limiting the foregoing, the parties
further agree that their respective right to a trial by jury is waived by
operation of this Section 13.5 as to any action, counterclaim or
other proceeding which seeks, in whole or in part, to 


 


16

















 


challenge the validity or enforceability of
this Agreement or any provision hereof. 
This waiver shall apply to any subsequent amendments, renewals,
supplements or modifications to this Agreement.


 


Section 13.6. 
Further Assurances.  The Equipment Holder shall furnish the
Contract Holder with any further instruments, in form and substance reasonably
satisfactory to it which it may reasonably require or deem necessary, from time
to time, to evidence, establish, protect, enforce, defend or secure it and any
and all of its rights hereunder.


 


Section 13.7. 
Amendments; Waivers.  Any term, covenant, agreement or condition of
this Agreement may only be amended with the consent of the Contract Holder and
the Equipment Holder or compliance therewith may be waived (either generally or
in a particular instance and either retroactively or prospectively) by the
Contract Holder and the Equipment Holder and in any such event the failure to
observe, perform or discharge any such covenant, condition or obligation
(whether such amendment is executed or such consent or waiver is given before
or after such failure) shall not be construed as a breach of such covenant,
condition or obligation or as a default hereunder.


 


Section 13.8. 
Successors and Assigns.  This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto.  All
agreements, statements, representations and warranties made by the Equipment
Holder herein or in any certificate or other instrument delivered by the
Equipment Holder or on its behalf under this Agreement shall be considered to
have been relied upon by the Contract Holder and shall survive the execution
and delivery of this Agreement.  Each of
the Contract Holder and the Equipment Holder acknowledges and agrees that the
rights of the Contract Holder and the Equipment Holder hereunder will be
pledged to the Trustee pursuant to the Indenture.


 


Section 13.9. 
No Bankruptcy Petition.  Each of the Contract Holder and the Equipment
Holder by entering into this Agreement covenants and agrees that, prior to the
date which is one year and one day after the full satisfaction and discharge of
the Indenture in accordance with the terms thereof, it will not institute
against, or join any other Person in instituting against, the Equipment Holder
and the Contract Holder, respectively, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any federal or state bankruptcy or similar law.


 


Section 13.10. 
Relationship of Parties.  Except as provided in Section 13.15,
nothing contained in this Agreement is intended to create, or shall in any
event or under any circumstance be construed as creating, a partnership, joint
venture, tenancy-in-common, joint tenancy, agency or other relationship of any
nature whatsoever between the Contract Holder on the one hand, and the
Equipment Holder, on the other hand.  The
Equipment Holder acknowledges that (a) the Equipment Holder is represented
by competent counsel and has consulted counsel before executing this Agreement
and (b) it has relied solely on its own judgment and advisors in entering
into the transactions contemplated hereby.


 


17

















 


Section 13.11. 
Limitation on Liability; Indemnity.


 


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


 


(b)           Notwithstanding the
foregoing, the Equipment Holder hereby agrees to indemnify and hold harmless
the Contract Holder, each successor and assign of the Contract Holder, as the
case may be, and each of their respective officers, directors, managers,
affiliates, agents and representatives from and against any claim, loss,
liability, damage, settlement, cost or other expense including reasonable
attorney’s fees and expenses that arise out of, relate to or are in connection
with any negligent act or any negligent failure to act of the Equipment Holder
in the performance of its duties hereunder or any breach by the Equipment
Holder of any representation, covenant or other provision hereunder.


 


This Section 13.11
shall survive termination of this Agreement.


 


Section 13.12. 
Governing Law.


 


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


 


Section 13.13. 
Counterparts.  This
Agreement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.


 


Section 13.14. 
Limitation on Payment.  Any and all payments, including but not
limited to fees, expenses and costs, to be made to the Equipment Holder under
this Agreement shall be made only to the extent of funds available therefor in
accordance with Section 5.13 of the Base Indenture.


 


Section 13.15. 
Status of Parties.  The
Equipment Holder is authorized pursuant to this Agreement to act as the
authorized agent of the Contract Holder for the purposes set forth in this
Agreement.


 


Section 13.16. 
Limitations on Authority.  Except as expressly set forth herein, the
Equipment Holder shall not be authorized to manage the affairs of the Contract
Holder.  The management, policies, and
operations of the Contract Holder shall be the responsibility of the Contract
Holder and officers of the Contract Holder acting pursuant 


 


18

















 


to and in accordance with their respective
Organizational Documents and other applicable documents.


 


Section 13.17. 
Headings and Captions.  The
headings or captions in this Agreement are inserted for convenience and
identification only and are in no way intended to describe, interpret, define,
or limit the scope, extent, or intent of this Agreement or any provisions
thereof.


 


19

















 


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


 


 


	
   

  	
  NuCO2 LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  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

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  NuCO2 Funding LLC, its Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NuCO2 Inc., its Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Eric M. Wechsler

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Eric
  M. Wechsler

  
	
   

  	
   

  	
   

  	
  Title:

  	
  General
  Counsel

  



 

















 


Exhibit A


Collection Policy


 














 





 


	
  Status of account

  	
   

  	
  Procedure

  Prior to 2006

  	
   

  	
  Current Procedure

  
	
  31
  Days Past Due

  	
   

  	
  No
  activity

  	
   

  	
  1st call to let the customer know that a payment
  has not been received.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  45
  Days Past Due

  	
   

  	
  Dunning
  letter sent

  	
   

  	
  2nd
  call to customer,

  Send Stop Service Letter.

  If the customer is having a billing issue then a call ticket will be created
  and the issue will be addressed and resolved within 5 days.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  50
  Days Past Due

  	
   

  	
  No
  activity

  	
   

  	
  3rd
  Call to Customer,

  Escalate the status if national account by contacting the sales department.
  The Collector must receive a response from sales on the status of payment
  within 2 days. If they don’t get a response after 2 attempts then they notify
  the Sales manager.

  



 

















 


	
   

  	
   

  	
  Procedure

  	
   

  	
   

  
	
  Status of account

  	
   

  	
  Prior to 2006

  	
   

  	
  Current Procedure

  
	
  60 days Past Due

  	
   

  	
  1st call 

  Dunning Letter 

  In some cases account status was changed to Accounts Receivable Hold (ARH)

  	
   

  	
  4th call, the account will be
  put on ARH if the payment has not been received within 60 -75 days. The ARH
  report is reviewed by Department Manager every morning to make sure ARH
  accounts have not paid.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  90 days Past Due

  	
   

  	
  2nd call 

  Account would be put on hold, Sales would be contacted. Collections would
  follow up with sales or customer service every 30 days to see if issue has
  been resolved. If the collector felt the account was uncollectible then the
  account would be coded XX and a series of letter would be sent for 30 days.
  After the series of letter was sent and the payment wasn’t made then the XX
  collector would send the account to the agency when it became 120 days past
  due.

  	
   

  	
  5th call. If payment has not been received, a
  certified letter is sent to the address on file. If a payment is not received
  within 90 days the Collections Clerk will L TNK the account, create Pull Tank
  Ticket, print the invoices and make a copy of the contract. This information
  is given to the Collections Manager. The Manager will review the account to
  validate all collection efforts, code the account 777, give the account # to the
  billing group to invoice the tank and give the backup to the Administrative
  Coordinator to send to the agency.

  



 

















 


	
  Status of account

  	
   

  	
  Procedure

  Prior to 2006

  	
   

  	
  Current Procedure

  
	
  Acceleration:

  Cancellation requested by Customer or Termination initiated by Collectors

  	
   

  	
  Inconsistently
  applied to accounts

  	
   

  	
  Only
  for single owner locations: The contract is accelerated. The Collection
  Agency has been instructed that they need to try and collect the Acceleration
  amount or they can negotiate it down to a $500 cancelation fee. A Prestige
  and Chain account is accelerated once Sales has authorized.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  180
  days Past Due 

  	
   

  	
  Administrative
  Coordinator would be responsible for entiating the write off if the money was
  not collected.

  	
   

  	
  The
  Collections Clerk is responsible for initiating the write off if the agency
  was unable to collect the money owed.

  



 

















 





 


Account is not placed on ARH if:


 


·                  Payment has
been received in the last 30 days, unless it is a broken Promise to Pay or they
have made one payment and they still have an outstanding balance.


·                  If they have
had a credit applied to their account in the last 30 days


·                  If they are
part of a National Account


·                  If they are a
McDonalds or Subway franchise the corporate office must be notified


·                  If there is a
billing dispute pending