exv4w1







Exhibit 4.1




EXECUTION COPY




AMENDMENT NO. 6 TO

RECEIVABLES SALE AGREEMENT




     THIS AMENDMENT NO. 6 TO RECEIVABLES SALE AGREEMENT, dated as of December 6, 2010 (this
“Amendment”), is among GE Commercial Distribution Finance Corporation, a Delaware
corporation (“CDF”), as a seller, Brunswick Acceptance Company, LLC, a Delaware limited
liability company, as a seller (“BAC”), General Electric Capital Corporation, a Delaware
corporation, as a seller (“GECC”), Polaris Acceptance, an Illinois general partnership, as
a seller (“PA”), and CDF Funding, Inc., a Delaware corporation, as buyer (the
“Buyer”).



BACKGROUND




     CDF, BAC, GECC, PA and the Buyer are parties to a receivables sale agreement, dated as of
August 12, 2004 (as amended, modified or supplemented prior to the date hereof, the
“Receivables Sale Agreement”). All of the parties hereto desire to amend the Receivables
Sale Agreement as set forth herein.



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



     SECTION 1. Definitions. Capitalized terms defined in the Receivables Sale Agreement
and used but not otherwise defined herein have the meanings given to them in the Receivables Sale
Agreement.



     SECTION 2. Amendment.



     (a) The definition of “Account” in Section 1.1 of the Receivables Sale
Agreement is amended by adding the following language after the last sentence of such definition:




     “An Originator may combine two or more existing Accounts and, for the avoidance of
doubt, the resulting revolving credit arrangement shall continue to be an Account hereunder.
An Originator may also change the account number (or other alpha-numeric identifier)
associated with any Account and for the avoidance of doubt, the related financing
arrangement shall continue to be an Account hereunder.”



     (b) The definition of “Account Schedule” in Section 1.1 of the Receivables
Sale Agreement is amended and restated in its entirety as follows:




     ““Account Schedule” means a computer file or microfiche list or other list
containing a true and complete list of Accounts, identified by account number (or by an
alpha-numeric identifier that uniquely and objectively identifies the applicable account
number pursuant to a protocol that has been provided to Buyer) and setting forth the
receivables balance for each as of (i) the applicable Addition Cut-Off Date, in the case of
an Account Schedule relating to Additional Accounts, (ii) the Removal Notice Date, in
the case of an Account Schedule relating to Removed Accounts (other than Removed Accounts
that became Inactive Accounts) or (iii) the date specified therein, in the case of



 









 






any other
Account Schedule. Notwithstanding the foregoing, the initial Account Schedule does not set
forth receivables balances, and any failure to set forth receivables balances in such a file
or list shall not impair the file’s or list’s effectiveness as an Account Schedule.”



     (c) Clause (l) of the definition of “Eligible Receivable” in Section 1.1
of the Receivables Sale Agreement is amended by (i) deleting the phrase “, to the extent required
by the related Financing Agreement,”, (ii) adding the phrase “unless any of the Financing
Agreement, the credit approval for the related Receivable or the Seller’s Credit and Collection
Policies would not require a first priority perfected security interest in the related Product or
other financed assets in connection with the related advance” after the words “the related advance”
and (iii) adding a “)” before the final period in clause (l).



     (d) Section 2.1(b) of the Receivables Sale Agreement is deleted and replaced in
its entirety with the following:





     “(b) Each Seller agrees, at its own expense, (i) on or prior to (x) the Closing
Date, in the case of the Initial Accounts, (y) the applicable Addition Date, in the case of
Additional Accounts, and (z) the applicable Removal Date, in the case of Removed Accounts,
to indicate, or cause to be indicated, in the appropriate computer files that Receivables
created (or reassigned, if applicable, in the case of Removed Accounts) in connection with
the Accounts have been conveyed to Buyer pursuant to this Agreement (or conveyed to a Seller
or its designee, if applicable, in accordance with Section 2.7, in the case of
Removed Accounts) by including, or causing to be included, in such computer files a code so
identifying each such Account (or, in the case of Removed Accounts, deleting, or causing to
be deleted, such code thereafter) and (ii) except as provided in Section 2.7(b), on
or prior to the date referred to in clauses (i)(x), (y) or (z), as
applicable, to deliver to Buyer an Account Schedule. The initial such Account Schedule, as
supplemented from time to time to reflect Additional Accounts and Removed Accounts, shall be
marked as Schedule 1 to this Agreement and is hereby incorporated into and made a
part of this Agreement. Once the code referenced in clause (i) of this paragraph
has been included with respect to any Account, each Seller further agrees not to permit such
code to be altered during the remaining term of this Agreement unless and until (x) such
Account becomes a Removed Account, or (y) such Seller shall have delivered to Buyer at least
thirty (30) days’ prior written notice of its intention to do so and has taken such action
as is necessary or advisable to cause the interest of Buyer in the Transferred Receivables
to continue to be perfected with the priority required by this Agreement. If any Seller
makes any change to the account number (or other alpha-numeric account identifier) reflected
in the Account Schedule for any Account, such Seller will promptly deliver an update to the
Account Schedule to Buyer and take all action necessary or advisable to cause the interest
of the Buyer in the related Transferred Receivables to continue to be perfected with the
priority required by this Agreement.”



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     (e) Section 2.7(a)(iv) of the Receivables Sale Agreement is deleted and replaced
in its entirety with the following:




     “(iv) such Seller shall have delivered to Buyer an Officer’s Certificate, dated as
of the Removal Date, to the effect that no selection procedure believed by such Seller to be
materially adverse to the interest of Buyer or any of its creditors has been used in
removing Removed Accounts.”



     (f) Section 2.7(b) of the Receivables Sale Agreement is deleted and replaced in
its entirety with the following:




     “Notwithstanding the foregoing, and without the necessity of satisfying any of the
conditions described above, any Account (each, an “Inactive Account”) that has had a
zero balance and under which no funding has occurred, in each case for at least the
preceding 12 months shall be designated as a Removed Account as of the day it becomes an
Inactive Account. Buyer shall deliver to the applicable Seller an Account Schedule listing
any Inactive Accounts that have been designated Removed Accounts not later than the end of
the calendar month following the month in which the related Removal Date occurred and,
notwithstanding anything to the contrary in Section 2.1(b), Seller shall not be
required to deliver such Account Schedule on or prior to the applicable Removal Date.”



     SECTION 3. Representations and Warranties. In order to induce the parties hereto to
enter into this Amendment, each of the parties hereto represents and warrants unto the other
parties hereto as set forth in this Section 3:



     (a) Due Authorization, Non Contravention, etc. The execution, delivery and
performance by such party of the Amendment are within its powers, have been duly authorized by all
necessary action, and do not (i) contravene its organizational documents; or (ii) contravene any
contractual restriction, law or governmental regulation or court decree or order binding on or
affecting it; and



     (b) Validity, etc. This Amendment constitutes the legal, valid and binding
obligation of such party enforceable against such party in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors’ rights and general
equitable principles.



     SECTION 4. Binding Effect; Ratification.



     (a) This Amendment shall become effective, as of the date first set forth above, when
counterparts hereof shall have been executed and delivered by the parties hereto and thereafter
shall be binding on the parties hereto and their respective successors and assigns.



     (b) The Receivables Sale Agreement, as amended hereby, remains in full force and effect.
On and after the date hereof, each reference in the Receivables Sale Agreement to “this Agreement”,
“hereof”, “hereunder” or words of like import, and each reference in any other Related Document to
the Receivables Sale Agreement, shall mean and be a reference to such Receivables Sale Agreement,
as amended hereby.



     (c) Except as expressly amended hereby, the Receivables Sale Agreement shall remain in
full force and effect and is hereby ratified and confirmed by the parties hereto.



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     SECTION 5. Reaffirmation of Originator Performance Guaranty. GECC, in its capacity
as performance guarantor (“Performance Guarantor”) under the Originator Performance
Guaranty dated as of August 12, 2004 (the “Originator Performance Guaranty”), taking into
account the Receivables Sale Agreement as amended by this Amendment, hereby reaffirms and ratifies
all of its obligations under the Originator Performance Guaranty.



     SECTION 6. Miscellaneous.



     (a) THIS AMENDMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING
ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND
5-1402 OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAWS PROVISIONS
THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.



     (b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED
IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIM OR DISPUTES BETWEEN THEM PERTAINING TO THIS AMENDMENT OR TO ANY MATTER ARISING
OUT OF OR RELATED TO THIS AMENDMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY
APPEAL FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF
MANHATTAN IN NEW YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION
IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO WAIVES ANY OBJECTION THAT
SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM
NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE
OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED
TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 7.1 OF THE RECEIVABLES SALE
AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY’S
ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE
PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW.



     (c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST
QUICKLY AND ECONOMICALLY
RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE



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RESOLVED
BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE
BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AMENDMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.




     (d) Headings used herein are for convenience of reference only and shall not affect the
meaning of this Amendment or any provision hereof.



     (e) This Amendment may be executed in any number of counterparts, and by the parties
hereto on separate counterparts, each of which when executed and delivered shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.



     (f) Executed counterparts of this Amendment may be delivered electronically.



[SIGNATURES FOLLOW]




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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date and year first above written.



	 	 	 	 	 
	 	GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION, as a Seller

 	 
	 	By:  	/s/ John E. Peak
 	 
	 	 	Name:  	John E. Peak 	 
	 	 	Title:  	Vice President 	 



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	 	BRUNSWICK ACCEPTANCE COMPANY, LLC,
as a Seller

 	 
	 	By:  	/s/ John E. Peak
 	 
	 	 	Name:  	John E. Peak 	 
	 	 	Title:  	Management Committee Member 	 



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POLARIS ACCEPTANCE, as a Seller

 	 
	 	By:  	/s/ John E. Peak
 	 
	 	 	Name:  	John E. Peak 	 
	 	 	Title:  	Management Committee Member 	 



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GENERAL ELECTRIC CAPITAL CORPORATION,
as a Seller

 	 
	 	By:  	/s/ Thomas A. Davidson
 	 
	 	 	Name:  	Thomas A. Davidson 	 
	 	 	Title:  	Attorney-in-Fact 	 
	 	


GENERAL ELECTRIC CAPITAL CORPORATION,
as the Performance Guarantor

 	 
	 	By:  	/s/ Thomas A. Davidson
 	 
	 	 	Name:  	Thomas A. Davidson 	 
	 	 	Title:  	Attorney-in-Fact 	 



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CDF FUNDING, INC., as the Buyer

 	 
	 	By:  	/s/ John E. Peak
 	 
	 	 	Name:  	John E. Peak 	 
	 	 	Title:  	Vice President 	 




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