EX-4.5



 







Exhibit 4.5




AMENDED AND RESTATED INTERCREDITOR AGREEMENT




     THIS AMENDED AND RESTATED INTERCREDITOR AGREEMENT, dated as of August 10, 2006 (this
“Agreement”), is among GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION, a Delaware
corporation (“CDF”), BRUNSWICK ACCEPTANCE COMPANY, LLC, a Delaware limited liability
company (“BAC”), GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
(“GECC”, and together with CDF and BAC, the “Sellers”), GE DEALER FLOORPLAN MASTER
NOTE TRUST (the “Trust”), and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
(the “Servicer”).



WITNESSETH




     WHEREAS, the parties hereto executed an Intercreditor Agreement dated as of May 5, 2005 (the
“Existing Intercreditor Agreement”), and now wish to amend and restate the Existing
Intercreditor Agreement;



     WHEREAS, pursuant to each Security Agreement, the Dealer party thereto has granted to the
applicable Seller a security interest in the property covered by such Security Agreement, to secure
the payment and performance of any and all Seller Debt of such Dealer;



     WHEREAS, pursuant to a receivables sale agreement, dated as of August 12, 2004 (the
“Receivables Sale Agreement”), among the Sellers, as sellers, and CDF Funding, Inc., as the
buyer (the “Buyer”), the Sellers have transferred all of their right, title and interest in
and to the Transferred Assets to the Buyer;



     WHEREAS, pursuant to a receivables purchase and contribution agreement, dated as of August 12,
2004 (the “Receivables Purchase and Contribution Agreement”), between the Buyer and the
Trust, the Buyer has transferred all of its right, title and interest in and to the Transferred
Assets to the Trust;



     WHEREAS, in order to perfect their respective liens and security interests in and upon all or
certain of the Dealers’ assets, the Sellers have each filed financing statements under the UCC as
adopted in each applicable jurisdiction and have taken such other actions as such parties deemed
necessary or desirable to perfect the respective liens and security interests granted to them by
the Dealers; and



     WHEREAS, the Sellers and the Trust desire to agree to the relative priority of their
respective security interests in, and liens against, the assets and certain other rights,
priorities and interests of the Dealers as among themselves;



     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree to amend and restate the Existing Intercreditor Agreement as
follows:



 









 




ARTICLE I


DEFINITIONS



     SECTION 1.1 Certain Terms. (a) The following terms (whether or not underscored) when
used in this Agreement, including its preamble and recitals, shall have the following meanings
(such definitions to be equally applicable to the singular and plural forms thereof):



     “Agreement” is defined in the preamble.



     “Bankruptcy Code” means Title 11 of the United States Code.



     “Buyer” is defined in the second recital.



     “CDF” is defined in the preamble.



     “Common Collateral” means, collectively, the Seller Collateral and the Trust
Collateral.



     “Enforcement” means the taking by the Trust (or the Servicer on its behalf) or the
Sellers of any action to repossess any of the Common Collateral or to commence judicial or
nonjudicial enforcement of any of its rights and remedies with respect to the Common Collateral.



     “Lienholder” means each of (i) the Trust and (ii) the Sellers.



     “Liquidation Proceeds” means the net Proceeds received or receivable in respect of any
Common Collateral.



     “paid in full” means with respect to the Seller Debt and the Trust Debt, that the
Trust or the Sellers, as the case may be, shall have certified to such other Lienholder that such
obligations have terminated, and that there remain no outstanding obligations or commitments of any
kind whatsoever (other than provisions set forth in any such document which by their terms survive
the termination of such document) of any Lienholder with respect thereto.



     “Proceeds” means all proceeds of, and all other profits, rentals or receipts, in
whatever form, arising from the collection, sale, lease, exchange, assignment, licensing or other
disposition of, or realization upon, collateral, including all claims of any Dealer against third
parties for loss of, damage to or destruction of, or for proceeds payable under, or unearned
premiums with respect to, policies of insurance in respect of, any collateral, and any condemnation
or requisition payments with respect to any collateral, in each case whether now existing or
hereafter arising.



     “Receivables Purchase and Contribution Agreement” is defined in the third
recital.



     “Receivables Sale Agreement” is defined in the second recital.



     “Security Agreements” means all security agreements or any other instruments,
documents or agreements evidencing or creating any security interest or title in favor of a Seller
in all or any portion of any property or assets of a Dealer.



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     “Seller” is defined in the second recital.



     “Seller Collateral” means all property (other than Trust Collateral) securing Seller
Debt.



     “Seller Debt” means and includes all loans, advances, debts, liabilities, obligations,
covenants and duties of any kind or nature, present or future, owing to the Sellers (and not sold
to the Buyer in accordance with the Receivables Sale Agreement) by the Dealers under the Security
Agreements, whether or not evidenced by any note or other instrument, whether or not for the
payment of money, whether arising by reason of an extension of credit, loan, indemnification or in
any other manner, whether direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising. The term includes all interest, charges, expenses, fees, reasonable
attorneys’ fees and any other sums chargeable to the Dealers under any of the Security Agreements.



     “Trust” is defined in the preamble.



     “Trust Collateral” means, on any date of determination, all property that constitutes
Collateral Security securing the Trust Debt.



     “Trust Debt” means and includes all loans, advances, debts, liabilities, obligations,
covenants and duties of any kind or nature, present or future, owing to the Trust by the Dealers
(after giving effect to the assignments under the Receivables Sale Agreement and the Receivables
Purchase and Contribution Agreement), whether or not evidenced by any note or other instrument,
whether or not for the payment of money, whether arising by reason of an extension of credit, loan,
indemnification or in any other manner, whether direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter arising. The term includes all interest, charges,
expenses, fees, reasonable attorneys’ fees and any other sums chargeable to the Dealers under any
of the Security Agreements.



     (b) For purposes of this Agreement, accounting terms not otherwise defined herein, and
accounting terms partly defined herein to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles; (i) terms defined in Article
9 of the UCC and not otherwise defined herein are used as defined in that Article; (ii) references
to any amount as on deposit or outstanding on any particular date means such amount at the close of
business on such day; (iii) the term “including” means “including without limitation”; (iv)
references to any law or regulation refer to that law or regulation as amended from time to time
and include any successor law or regulation; (v) references to any agreement refer to that
agreement as from time to time amended, restated or supplemented or as the terms of such agreement
are waived or modified in accordance with its terms; and (vi) references to any Person include that
Person’s successors and assigns.



     SECTION 1.2 Definitions. Unless otherwise defined herein or the context otherwise
requires, capitalized terms used in this Agreement, including its preamble and recitals, have the
meanings provided in Receivables Sale Agreement.



     SECTION 1.3 UCC Definitions. Unless otherwise defined herein or in the Receivables
Sale Agreement or the context otherwise requires, terms for which meanings are provided in the UCC
are used in this Agreement, including its preamble and recitals, with such meanings.



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ARTICLE II


LIENS



     SECTION 2.1 Priorities. Notwithstanding the date or manner of, or order of perfection
of a Seller’s and the Trust’s security interests in and liens on the Common Collateral, and
notwithstanding any provisions of the UCC, any applicable law or decision, or whether a Seller, the
Servicer or the Trust has possession of all or any part of the Common Collateral, the following as
among the Sellers and the Trust shall be the relative priority of the security interests and liens
of the Sellers and the Trust in the Common Collateral:



     (a) With respect to the Trust Collateral and the Liquidation Proceeds therefrom, the Trust’s
security interests in and liens on the Trust Collateral and the Liquidation Proceeds therefrom
shall be senior and prior in operation and effect to the Sellers’ security interests in and liens
thereon in all respects and the Sellers’ security interests in and liens on such Trust Collateral
and the Liquidation Proceeds therefrom shall be subordinate, junior and inferior, and shall be
postponed in priority, operation and effect to the Trust’s security interests in and liens on such
Trust Collateral and Liquidation Proceeds therefrom.



     (b) With respect to the Seller Collateral and the Liquidation Proceeds therefrom, the Sellers’
security interests in and liens on such Seller Collateral and the Liquidation Proceeds therefrom
shall be senior and prior in operation and effect to the Trust’s security interests in and liens
thereon in all respects and the Trust’s security interests in and liens on such Seller Collateral
and Liquidation Proceeds therefrom shall be subordinate, junior and inferior, and shall be
postponed in priority, operation and effect to the Sellers’ security interests in and liens on such
Seller Collateral and the Liquidation Proceeds therefrom.



     (c) The Trust hereby agrees, upon the request of a Seller, at any time, to release from the
lien and security interest created pursuant to the Security Agreements all or any portion of the
Seller Collateral and Liquidation Proceeds therefrom, and hereby waives any and all of its rights
that may arise in any such Seller Collateral so released and Liquidation Proceeds therefrom under
the provisions of the Security Agreements and hereby expressly agrees that in the future it shall
have no rights in or to any such Seller Collateral so released or the Liquidation Proceeds
therefrom.



     (d) Each Seller hereby agrees, upon the request of the Trust, at any time, to release from the
lien and security interest created pursuant to the Security Agreements all or any portion of the
Trust Collateral and Liquidation Proceeds therefrom, and hereby waives any and all of its rights
that may arise in any such Trust Collateral so released and Liquidation Proceeds therefrom under
the provisions of the Security Agreements and hereby expressly agrees that in the future it shall
have no rights in or to any such Trust Collateral so released or the Liquidation Proceeds
therefrom.



     SECTION 2.2 Continuing Seniority of Security Interests. The priority of security
interests set forth in Section 2.1 shall apply and control irrespective of (i) any
statement to the contrary elsewhere herein, in any agreement evidencing the security interests and
liens of the Sellers in the Common Collateral, or in any agreement or other document executed and
delivered



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by any party hereto or any affiliate thereof, (ii) the time, order, or method of attachment or
perfection of security interests, (iii) the time or order of recording of mortgages or deeds of
trust or filings of financing statements or any other recordings of filings, or (iv) the giving of,
or the failure to give, notice of the acquisition or expected acquisition of purchase money or
other security interests.



ARTICLE III


ENFORCEMENT



     SECTION 3.1 Exclusive Right to Commence Enforcement. (a) For as long as there exists
any outstanding Trust Debt in respect of any Dealer, the Trust (or the Servicer on its behalf)
shall have the exclusive right to commence Enforcement against all or any portion of the Trust
Collateral in respect of such Dealer. For so long as there exists any outstanding Trust Debt in
respect of any Dealer, the Trust (or the Servicer on its behalf) shall have the exclusive right to
sell, transfer or otherwise dispose of all or any part of the Trust Collateral in respect of such
Dealer in any manner deemed appropriate by the Trust (or the Servicer on its behalf) without regard
to the security interests and liens of the Sellers and without the Sellers’ consent. The Sellers
and the Trust each acknowledge and agree that with respect to any Enforcement commenced by the
Trust in compliance with the provisions hereof, (i) the Sellers shall not have any right to direct
or participate in any aspect of such Enforcement, except as otherwise specifically provided in this
Section 3.1(a), or as the Trust (or the Servicer on its behalf) otherwise elects, (ii) the
time, place and manner of any such Enforcement and the price at which any of the Trust Collateral
which is the subject of such Enforcement is liquidated, as well as all other details of such
Enforcement, shall be determined solely in the discretion of the Trust (or the Servicer on its
behalf) and (iii) the Sellers shall not have any claim or action against the Trust (or the Servicer
on its behalf) with respect to any such Enforcement or with respect to the amount of Liquidation
Proceeds realized as a result of any such Enforcement. Each Seller agrees that it shall not
contest or support any other Person in contesting in any proceeding (including in any bankruptcy,
moratorium, reorganization or other insolvency proceeding) the legality, validity, binding effect,
priority, enforceability or effectiveness of the Trust’s security interest and lien on any of the
Trust Collateral or prevent any action taken by the Trust (or the Servicer on its behalf) to
foreclose on the Trust Collateral or enforce the security interests and liens of the Trust in the
Trust Collateral.



     (b) For as long as there exists any outstanding Seller Debt in respect of any Dealer, the
applicable Seller shall have the exclusive right to commence Enforcement against all or any portion
of the Seller Collateral in respect of such Dealer. For as long as there exists any outstanding
Seller Debt in respect of any Dealer, the applicable Seller shall have the exclusive right to sell,
transfer or otherwise dispose of all or any part of the Seller Collateral in respect of such Dealer
in any manner deemed appropriate by it without regard to the security interests and liens of the
Trust and without the Trust’s consent. The Sellers and the Trust acknowledge and agree that with
respect to any Enforcement commenced by a Seller in compliance with the provisions hereof, (i) the
Trust shall not have any right to direct or participate in any aspect of such Enforcement, except
as otherwise specifically provided in this Section 3.1(b), or as such Seller otherwise
elects, (ii) the time, place and manner of any such Enforcement and the price at which any of the
Seller Collateral which is the subject of such Enforcement is liquidated, as well



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as all other details of such Enforcement, shall be determined solely in the discretion of such
Seller and (iii) the Trust shall not have any claim or action against any other Lienholder with
respect to any such Enforcement or with respect to the amount of Liquidation Proceeds realized as a
result of any such Enforcement. The Trust agrees that it shall not contest or support any other
Person in contesting in any proceeding (including in any bankruptcy, moratorium, reorganization or
other insolvency proceeding) the legality, validity, binding effect, priority, enforceability or
effectiveness of a Seller’s security interest and lien on any of the Seller Collateral or prevent
any action taken by a Seller to foreclose on the Seller Collateral or enforce the security
interests and liens of such Seller in the Seller Collateral.




     SECTION 3.2 Allocation of Liquidation Proceeds. (a) Liquidation Proceeds derived
from a disposition of the Trust Collateral in respect of each Dealer shall be paid to the Trust for
application to the Trust Debt in respect of such Dealer until such Trust Debt is paid in full in
cash; thereafter, any such remaining Liquidation Proceeds shall be remitted in accordance with the
Related Documents and applicable law.



     (b) Liquidation Proceeds derived from a disposition of the Seller Collateral in respect of
each Dealer shall be paid to the applicable Seller for application to the Seller Debt in respect of
such Dealer until such Seller Debt is paid in full in cash; thereafter, any such remaining
Liquidation Proceeds shall be remitted in accordance with applicable law.



     (c) Whenever it cannot be determined if the Common Collateral relating to a Dealer is Seller
Collateral or Trust Collateral, the Liquidation Proceeds from such Common Collateral shall be
applied in the following order:



               (i) first, such Liquidation Proceeds shall be allocated among such Dealer’s SAUs pro rata
according to the amount of SAUs by Manufacturer, and then such Liquidation Proceeds shall be
applied to make payments on Receivables in respect of such Dealer’s SAUs in chronological order
beginning with the oldest of such SAUs;



               (ii) second, to pay any interest or fees accrued and owing on Receivables relating to such
Dealer, with such interest or fees to be distributed among such Receivables in the chronological
order by oldest billing statement beginning with the oldest of such billing statements; and



               (iii) third, to pay any principal and any other amounts owing on Receivables relating to such
Dealer, with such principal and other amounts to be distributed among such Receivables in the
chronological order in which they were originated beginning with the oldest of such Receivables.



     SECTION 3.3 The Sellers’ Remedies as a Result of Security Agreement Covenants. Each
Seller agrees that it will not pursue against the Trust Collateral any of the remedies provided for
by the terms of the Security Agreements that arise as a result of a default or event of default
under such Security Agreements in a manner that is inconsistent with the terms of this Agreement.



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ARTICLE IV


CERTAIN RESTRICTIONS AND AGREEMENTS



     SECTION 4.1 Marshalling; Foreclosure on Common Collateral; etc. (a) The Sellers
acknowledge that the Trust Debt may be secured by collateral other than the Common Collateral, and
agree that the Trust shall have no obligation to marshall the assets of any Dealer or any other
Person in which it has a lien or security interest before enforcing its rights in the Trust
Collateral, and the Sellers shall have no rights to share or participate in any proceeds of such
other collateral except as provided for in this Agreement. The Sellers agree and acknowledge that,
subject to Section 3.1(a), the Trust may commence and effect Enforcement against collateral
for the Trust Debt notwithstanding the fact that any Dealer would be prohibited from disposing of
such collateral by any provision of the Security Agreements.



     (b) The Trust acknowledges that the Seller Debt may be secured by collateral other than the
Common Collateral, and agrees that a Seller shall have no obligation to marshall the assets of any
Dealer or any other Person in which it has a lien or security interest before enforcing its rights
in the Seller Collateral, and the Trust shall have no rights to share or participate in any
proceeds of such other collateral except as provided for in this Agreement. The Trust agrees and
acknowledges that, subject to Section 3.1(b), the Sellers may commence and effect
Enforcement against collateral for the Seller Debt notwithstanding the fact that any Dealer would
be prohibited from disposing of such collateral by any provision of the Security Agreements.



     (c) (i) Each Seller agrees that if it acquires custody, control or possession of any Trust
Collateral or Liquidation Proceeds therefrom, other than pursuant to the terms of this Agreement,
then it shall promptly turn over such Trust Collateral and/or remit such Liquidation Proceeds to
the Trust; provided, that if any third party asserts a right to such Trust Collateral or
such Liquidation Proceeds, the Sellers shall not be obligated to turn over such Trust Collateral or
remit such proceeds in any manner contrary to a court order. Until such time as the provisions of
the immediately preceding sentence have been complied with, the Sellers shall be deemed to hold
such Trust Collateral and proceeds in trust for the parties entitled thereto hereunder.



               (ii) The Trust agrees that if it acquires custody, control or possession of any Seller
Collateral or Liquidation Proceeds therefrom, other than pursuant to the terms of this Agreement,
then it shall promptly turn over such Seller Collateral and/or remit such Liquidation Proceeds to
the applicable Seller; provided, that if any third party asserts a right to such Seller
Collateral or such Liquidation Proceeds, the Trust shall not be obligated to turn over such Seller
Collateral or remit such proceeds in any manner contrary to a court order. Until such time as the
provisions of the immediately preceding sentence have been complied with, the Trust shall be deemed
to hold such Seller Collateral and proceeds in trust for the parties entitled thereto hereunder.



     (d) The Lienholders agree that the provisions of this Agreement with respect to allocations
and distributions of Liquidation Proceeds to the Lienholders shall prevail notwithstanding any
event or circumstances, including in the event that, through the operation of any bankruptcy,
reorganization, insolvency or other laws or otherwise, the Trust’s security



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interest or lien in the Trust Collateral or a Seller’s security interest or lien in the Seller
Collateral is avoided in whole or in part or is enforced with respect to some, but not all of the
Trust Debt or Seller Debt, as applicable, then outstanding.




     SECTION 4.2 UCC Notices. In the event that a Seller or the Trust shall be required by
the UCC or any other applicable law to give notice to the other of an intended disposition of any
portion of the Seller Collateral or the Trust Collateral, as the case may be, such notice shall be
given in accordance with Section 5.1 below and ten (10) days’ notice shall be deemed to be
commercially reasonable. The execution of this Agreement by the Sellers and the Trust shall be
deemed to be each party’s notice to the other parties hereto of a claim of an interest in the Trust
Collateral and the Seller Collateral for the purposes of Section 9-620 of the UCC.



     SECTION 4.3 Event of Insolvency Proceedings. Notwithstanding anything to the contrary
in this Agreement but in furtherance hereof, upon the commencement of a case under the Bankruptcy
Code by or against any Dealer:



     (a) this Agreement shall remain in full force and effect and enforceable pursuant to its terms
in accordance with Section 510(a) of the Bankruptcy Code, and all references herein to such Dealer
shall be deemed to apply to such entity as debtor in possession and to any trustee in bankruptcy
for the estate of such entity;



     (b) each Lienholder shall retain its right to vote its claims and act in any such case under
the Bankruptcy Code (including the right to vote to accept or reject any plan of reorganization or
liquidation), and hereby agrees not to take any action or vote in any way so as to contest (i) the
validity or enforceability of this Agreement, (ii) the validity, priority or enforceability of the
liens, mortgages, assignments and security interests granted in respect of the Common Collateral,
and (iii) the relative rights and duties of the Lienholders granted and/or established herein or in
any of the Security Agreements with respect to such liens, mortgages, assignments, and security
interests;



     (c) so long as any Trust Debt has not been paid in full in cash, without the express written
consent of the Trust, the Sellers shall not (A) with respect to any rights under the Security
Agreements, seek in respect of any part of the Trust Collateral or proceeds thereof or any Lien
which may exist thereon, any relief from or modification of the automatic stay as provided in
Section 362 of the Bankruptcy Code or seek or accept any form of adequate protection under either
or both of Sections 362 and 363 of the Bankruptcy Code with respect thereto (provided, that
the Sellers may seek and receive adequate protection payments), (B) oppose or object to the Trust
obtaining a lien or security interest or grant of administrative claim in connection with a grant
of adequate protection, use of cash collateral or post-petition financing under Sections 362, 363
or 364 of the Bankruptcy Code in respect of the Trust Collateral, (C) oppose or object to or
withhold consent from the disposition, by a Dealer of Trust Debt, of assets under Sections 363(b)
or (f) of the Bankruptcy Code, if such disposition is approved by the Trust, provided that
the interest, if any, which the Sellers have in the assets shall attach to the proceeds of such
disposition, (D) oppose, object to, or vote against any plan of reorganization or disclosure
statement the terms of which are consistent with the rights of the Trust under this Agreement and
the Security Agreements under which the liens, mortgages, assignments and security interests and
the priority thereof are granted and established, (E) make an election pursuant to Section



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1111(b) of the Bankruptcy Code without the consent of the Trust if such election would
adversely affect the rights or interests of the Trust in the applicable Trust Collateral, (F)
oppose or object to the determination of the extent of any liens held by the Trust or the value of
any claims of the Trust under Section 506(a) of the Bankruptcy Code, or (G) oppose or object to the
payment of interest and expenses to the Trust as provided under Section 506(b) and (c) of the
Bankruptcy Code;




     (d) so long as any Seller Debt has not been paid in full in cash, without the express written
consent of the applicable Seller, the Trust shall not (A) with respect to any rights under the
Security Agreements, seek in respect of any part of the Seller Collateral or proceeds thereof or
any lien or security interest which may exist thereon, any relief from or modification of the
automatic stay as provided in Section 362 of the Bankruptcy Code or seek or accept any form of
adequate protection under either or both of Sections 362 and 363 of the Bankruptcy Code with
respect thereto (provided, that the Trust may seek and receive adequate protection
payments), (B) oppose or object to the Sellers obtaining a lien or security interest or grant of
administrative claim in connection with a grant of adequate protection, use of cash collateral or
post-petition financing under Sections 362, 363 or 364 of the Bankruptcy Code in respect of the
Seller Collateral, (C) oppose or object to or withhold consent from the disposition, by a Dealer of
Seller Debt, of assets under Sections 363(b) or (f) of the Bankruptcy Code, if such disposition is
approved by a Seller; provided, that the interest, if any, which the Trust has in the
assets shall attach to the proceeds of such disposition, (D) oppose, object to, or vote against any
plan of reorganization or disclosure statement the terms of which are consistent with the rights of
the Sellers under this Agreement and the Security Agreements under which the liens, mortgages,
assignments and security interests and the priority thereof are granted and established, (E) make
an election pursuant to Section 1111(b) of the Bankruptcy Code without the consent of the
applicable Seller if such election would adversely affect the rights or interests of such Seller in
the applicable Seller Collateral, (F) oppose or object to the determination of the extent of any
liens held by the Sellers or the value of any claims of the Sellers under Section 506(a) of the
Bankruptcy Code, or (G) oppose or object to the payment of interest and expenses to the Sellers as
provided under Section 506(b) and (c) of the Bankruptcy Code;



     (e) the obligations of the Sellers under this Agreement shall continue to be effective, or be
reinstated, as the case may be, as to any payment in respect of any Trust Debt that is rescinded or
must otherwise be returned by the holder of such Trust Debt upon the occurrence or as a result of
applicable provisions of the Bankruptcy Code, all as though such payment had not been made; and



     (f) the obligations of the Trust under this Agreement shall continue to be effective, or be
reinstated, as the case may be, as to any payment in respect of any Seller Debt that is rescinded
or must otherwise be returned by the holder of such Seller Debt upon the occurrence or as a result
of applicable provisions of the Bankruptcy Code, all as though such payment had not be made.



     SECTION 4.4 Assignment of Agreement or Claim. (a) Each Seller agrees that it will
not sell, transfer, assign or otherwise dispose of all or any part of the Seller Debt or any notes,
instruments or agreements evidencing such Seller Debt or any of its interest in any of the
foregoing, unless, prior to any such sale, transfer, assignment or other disposition, the
applicable



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purchaser or transferee shall agree, in writing, to be bound by the terms of this Agreement;
provided, that Seller may freely transfer any Seller Debt with respect to which the
transferee has waived all rights to any cross-collateralization to the Trust Collateral.




     (b) The Trust agrees that it will not sell, transfer, assign or otherwise dispose of all or
any part of the Trust Debt or any notes, instruments or agreements evidencing such Trust Debt or
any of its interest in any of the foregoing, unless, prior to any such sale, transfer, assignment
or other disposition, the applicable purchaser or transferee shall agree, in writing, to be bound
by the terms of this Agreement. Notwithstanding the foregoing, the Sellers acknowledge that the
Trust may assign its rights granted hereunder and upon such assignment, such assignee shall have,
to the extent of such assignment, all rights of the Trust hereunder and may in turn assign such
rights. The Sellers agree that, upon any such assignment, such assignee may enforce directly,
without joinder of the Trust, the rights set forth in this Agreement. All such assignees shall be
third-party beneficiaries of, and shall be entitled to enforce the Trust’s rights and remedies
under, this Agreement to the same extent as if they were parties hereto.



     SECTION 4.5 Representations and Warranties. Each of the parties hereto hereby
warrants and represents to each other party hereto that (i) it has full right, power and authority
to enter into this Agreement, (ii) its execution and delivery of this Agreement does not and will
not constitute a breach of or default under any provision contained in its corporate documents, or
any agreement to which it is a party or by which it is bound, (iii) this Agreement is enforceable
against it in accordance with its terms, except as limited by applicable bankruptcy,
reorganization, receivership, insolvency or similar laws affecting the enforcement of creditors’
rights generally, and its execution and delivery hereof and performance hereunder does not and will
not violate any applicable law.


ARTICLE V


MISCELLANEOUS



     SECTION 5.1 Notices. All notices and other communications provided to any party
hereto under this Agreement shall be in writing or by facsimile and addressed, delivered or
transmitted to such party at its address or facsimile number set forth in Schedule 5.1
hereto or at such other address or facsimile number as may be designated by such party in a notice
to the other parties. Each notice shall be deemed to have been duly given or made when delivered,
or five Business Days after being deposited in the mail, postage prepaid and return receipt
requested, or, in the case of facsimile notice, when electronic confirmation thereof is received by
the transmitter.



     SECTION 5.2 Further Assurances. Each Lienholder shall cooperate fully with each other
Lienholder, to the end that the terms and provisions of this Agreement may be promptly and fully
carried out and shall, from time to time, execute and deliver any and all other agreements,
documents or instruments and to take such other actions, all as may be reasonably necessary or
desirable to effectuate the terms of this Agreement.



     SECTION 5.3 Specific Performance. The parties acknowledge that no adequate remedy of
law exists for breach of their respective obligations under this Agreement and therefore that,



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in the event any party fails to comply with its obligations hereunder, the other parties
hereto shall have the right to obtain specific performance of the obligations of such defaulting
party or such other equitable relief as may be available.




     SECTION 5.4 Termination. This Agreement shall remain in full force and effect until
all of the Trust Debt has been paid in full in cash.



     SECTION 5.5 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions
of this Agreement or affecting the validity or enforceability of such provision in any other
jurisdiction.



     SECTION 5.6 Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of each Lienholder. The agreements contained
herein are for the sole and exclusive benefit of the Lienholders and their respective successors
and assigns and do not otherwise create, and shall not be construed as creating, any rights
enforceable by any Dealer or any other Person not a party to this Agreement. All references herein
to any Dealer shall include its successors and assigns including any debtor in possession, receiver
or trustee.



     SECTION 5.7 Waivers. No waiver shall be deemed to be made by any Lienholder of its
respective rights hereunder, unless the same shall be in writing and signed on behalf of such
party. Each waiver shall be a waiver only with respect to the specific event involved and shall in
no way impair the rights of the party delivering the waiver or the obligations of the other parties
hereto in any other respect at any other time.



     SECTION 5.8 Supremacy of this Agreement. In the event any conflict between the
provisions of this Agreement and the provisions of any Security Agreement, the provisions of this
Agreement shall control. Notwithstanding anything to the contrary in this Agreement, in the event
of any conflict between the provisions of this Agreement, on the one hand, and the provisions of
the Receivables Sale Agreement, the Receivables Purchase and Contribution Agreement, the Trust
Agreement, the Servicing Agreement or the Indenture, on the other hand, the provisions of the
Receivables Sale Agreement, the Receivables Purchase and Contribution Agreement, the Trust
Agreement, the Servicing Agreement or the Indenture, as the case may be, shall control.



     SECTION 5.9 Headings. The various headings of this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this Agreement or any
provisions hereof.



     SECTION 5.10 Execution in Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall constitute together one and the same agreement.



     SECTION 5.11 No Proceedings. From the Closing Date and until the date one year plus
one day following the date on which all amounts due with respect to the Trust Debt have been paid
in full in cash, the Sellers shall not, directly or indirectly, institute or cause to be instituted



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against the Trust any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding under any Federal or state bankruptcy or similar law;
provided, that the foregoing shall not in any way limit the Sellers’ right to pursue any
other creditor rights or remedies that the Sellers may have under applicable law.




     SECTION 5.12 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. (a) THIS
AGREEMENT 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 CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR
RELATING TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS
FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN
NEW YORK CITY; PROVIDED, FURTHER, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR
OPERATE TO PRECLUDE THE TRUST FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE TRUST DEBT, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE TRUST. 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 HEREBY 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 5.1 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.



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     (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 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 AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.


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



	 	 	 	 	 
	 	GE DEALER FLOORPLAN MASTER NOTE TRUST

 	 
	 	By: THE BANK OF NEW YORK (DELAWARE), not in its individual capacity but solely as Trustee on behalf of the Issuer 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                              /s/Kristine K. Gullo
 	 
	 	Name:  	Kristine K. Gullo 	 
	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION

 	 
	 	By:  	/s/Boyd Feltman
 	 
	 	Name:  	Boyd Feltman 	 
	 	Title:  	CFO 	 
	 



	 	 	 	 	 
	 	BRUNSWICK ACCEPTANCE COMPANY, LLC

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



	 	 	 	 	 
	 	GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION

 	 
	 	By:  	/s/Walter D. Bay
 	 
	 	Name:  	Walter D. Bay 	 
	 	Title:  	Vice president and Secretary 	 
	 



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Agreed and acknowledged as of

the date first above written:




WILMINGTON TRUST COMPANY,

not in its individual capacity but

solely as Indenture Trustee




	 	 	 	 
	 	 
	By:  	/s/Erwin M. Soriano
 	 
	Name:  	Erwin M. Soriano 	 
	Title:  	Assistant Vice President 	 
	 



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S-2









 






SCHEDULE 5.1


NOTICES



If to CDF:



GE Commercial Distribution Finance Corporation

5595 Trillium Boulevard

Hoffman Estates, Illinois 60192

Attention: General Counsel

Telephone: (847) 747-7552

Facsimile: (847) 747-7455




If to BAC:



Brunswick Acceptance Company, LLC

5595 Trillium Boulevard

Hoffman Estates, Illinois 60192

Attention: General Counsel

Telephone: (847) 747-7552

Facsimile: (847) 747-7455




If to the Trust:



GE Dealer Floorplan Master Note Trust

c/o The Bank of New York

101 Barclay Street, Floor 8 West (ABS Unit)

New York, New York 10286

Attention: Antonio Vayas

Telephone: (212) 815-8322

Facsimile: (212) 815-2493



With a copy to:



General Electric Capital Corporation, as administrator

44 Old Ridgebury Road

Danbury, Connecticut 06810

Attention: Manager, Securitizations

Telephone: (203) 790-2762

Facsimile: (203) 796-5554




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If to the Servicer:



General Electric Capital Corporation

44 Old Ridgebury Road

Danbury, Connecticut 06810

Attention: Capital Market Operations

Telephone: (203) 790-2762

Facsimile: (203) 796-5554




If to GECC:



General Electric Capital Corporation

44 Old Ridgebury Road

Danbury, Connecticut 06810

Attention: Capital Market Operations

Telephone: (203) 790-2762

Facsimile: (203) 796-5554




Amended and Restated Intercreditor Agreement