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Exhibit 4.6
EXECUTION
COPY
JOINDER AND ASSUMPTION
AGREEMENT
This JOINDER AND ASSUMPTION
AGREEMENT (this “ Assumption Agreement ”), is
made and entered into as of February 13, 2008, among
Goodman Global, Inc. , a Delaware corporation (the “
Company ,” or in its capacity as the successor issuer
of the Notes, the “ Successor Issuer ”), the
guarantors listed on the signature pages hereto (the “
Initial Guarantors ”), GSO Domestic Capital Funding
LLC (“ GSO Domestic Capital ”), GSO COF
Facility LLC (“ GSO COF ”), GSO
Origination Funding Partners LP (“ GSO Origination
Funding ” and, together with GSO Domestic Capital and GSO
COF, the “ GSO Purchasers ”), Farallon
Funding, L.L.C. (“ Farallon Funding ”),
AlpInvest Partners Mezzanine 2007 C.V. (“
AlpInvest ”), KKR Financial Holdings III, LLC
(“ KKR Financial ”) and CMP II Initial
Holdings, L.L.C. (“ CMP II ” and, together
with the GSO Purchasers, Farallon Funding, AlpInvest and KKR
Financial, the “ Purchasers ”).
RECITALS
WHEREAS, pursuant to that certain
Agreement and Plan of Merger, dated as of October 21, 2007
(the “ Merger Agreement ”), among the Company,
Chill Holdings, Inc., a Delaware corporation (“
Holdings ”), and Chill Acquisition, Inc., a Delaware
corporation (“ MergerCo ”), MergerCo was merged
with and into the Company, with the Company as the surviving
corporation of the merger (the “ Merger
”);
WHEREAS, pursuant to the terms hereof
and as a result of the Merger, the Successor Issuer will succeed to
the rights and obligations of MergerCo under (A) the Note
Purchase Agreement, dated as of February 13, 2008 (the “
Note Purchase Agreement ”) and (B) the Exchange
and Registration Rights Agreement, dated as of February 13,
2008 (the “ Exchange and Registration Rights Agreement
”), in each case among MergerCo and the Purchasers;
and
WHEREAS, in accordance with the terms
hereof, upon consummation of the Merger, each of the Initial
Guarantors will be joined to the Exchange and Registration Rights
Agreement as a Guarantor and will assume all the rights and
obligations of a Guarantor thereunder.
AGREEMENT
NOW, THEREFORE, in consideration of the
foregoing and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto
mutually covenant and agree for the equal and ratable benefit of
the Purchasers as follows:
(a) DEFINED
TERMS. Capitalized terms that are used but not defined herein
shall have the respective meanings ascribed to them in that certain
Indenture, dated as of even date herewith, among MergerCo and Wells
Fargo Bank, National Association, as Trustee (as amended,
supplemented, restated or modified from time to time, the “
Indenture ”).
(b) ASSUMPTION. By executing
and delivering this Assumption Agreement, upon consummation of the
Merger, the Successor Issuer hereby assumes (the “
Assumption ”) all rights, title, interests,
obligations and liabilities of all and whatever nature of MergerCo
under the Note Purchase Agreement and the Exchange and Registration
Rights Agreement (in furtherance of and in addition to, and not in
lieu of, any assumption or deemed assumption by operation of law)
from and after the date hereof with the same force and effect as if
originally the Successor Issuer were a party thereunder. Without
limiting the generality of the foregoing, the Successor Issuer
hereby expressly agrees to observe and perform and be bound by all
of the terms, covenants, representations, warranties, and
agreements contained in this Assumption Agreement, the Note
Purchase Agreement and the Exchange and Registration Rights
Agreement which are binding upon, and to be observed or performed
by, MergerCo.
(c) JOINDER. By executing
this Assumption Agreement, the Initial Guarantors agree (the
“ Joinder ”) that by the execution and delivery
hereof, each Initial Guarantor becomes a Guarantor under the
Exchange and Registration Rights Agreement and agree to be bound by
the terms thereof and subject to the obligations contained therein
applicable to a Guarantor. Without limiting the generality of the
foregoing, the Initial Guarantors hereby expressly agree to observe
and perform and be bound by all of the terms, covenants,
representations, warranties, and agreements contained in this
Assumption Agreement and the Exchange and Registration Rights
Agreement.
(d) AMENDMENT. The Note
Purchase Agreement and the Exchange and Registration Rights
Agreement are hereby deemed to be amended, modified and
supplemented to the extent, but only to the extent, necessary to
effect this Assumption Agreement. Except as expressly amended,
modified and supplemented hereby, the provisions of the Note
Purchase Agreement and the Exchange and Registration Rights
Agreement are and shall remain in full force and effect and are
hereby ratified in all respects.
(e) NEW YORK LAW TO GOVERN.
THIS ASSUMPTION AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED
BY, THE LAW OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
(f) COUNTERPARTS. This
Assumption Agreement may be executed in any number of counterparts,
each of which when so executed an
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