Exhibit
10.12(a)


 


EXECUTION COPY


 


AMENDMENT
NO. 2 TO AMENDED AND

RESTATED RECEIVABLES PURCHASE AGREEMENT


 


This AMENDMENT NO. 2 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT, dated as of November 6, 2008 (this “Amendment”),
is by and among MANITOWOC FUNDING, LLC, as Seller, THE MANITOWOC COMPANY, INC.,
as Servicer, HANNOVER FUNDING COMPANY LLC, as Purchaser, and NORDDEUTSCHE
LANDESBANK GIROZENTRALE, as Agent.


 


WHEREAS, the parties hereto are parties to
that certain Amended and Restated Receivables Purchase Agreement, dated as of December
21, 2006 (as amended, supplemented or otherwise modified from time to time, the
“Agreement”); and


 


WHEREAS, the parties hereto desire to amend
the Agreement as set forth herein;


 


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


 


SECTION 1.           Definitions. 
Capitalized terms defined in the Agreement and used but not otherwise
defined herein shall have the meanings assigned thereto in the Agreement.


 


SECTION 2.           Amendments.  The Agreement
is hereby amended as follows:


 


(a)           The definition of “Change in Control”
set forth in Exhibit I to the Agreement is amended by deleting the
phrase “or the Subordinate Note Documents” from where it appears in clause (x) thereof.


 


(b)           The definition of “Credit Agreement”
set forth in Exhibit I to the Agreement is replaced in its entirety
with the following:


 


“Credit Agreement” means the Amended and Restated Credit
Agreement, dated as of August 25, 2008, among Manitowoc, the “Subsidiary
Borrowers” party thereto, the “Lenders” party thereto, and JPMorgan Chase Bank,
N.A., as administrative agent, as amended, supplemented or otherwise modified
from time to time; provided, however, that for purposes of any
reference herein to a defined term set forth in the Credit Agreement, such
reference shall be deemed to be a reference to the Credit Agreement as in
effect on November 6, 2008 without giving effect to any amendment,
supplement or other modification thereto entered into without the Agent’s
written consent.


 


(c)           The definition of “Intercreditor
Agreement” set forth in Exhibit I to the Agreement is replaced
in its entirety with the following:


 


“Intercreditor Agreement” means the Second Amended and Restated
Intercreditor Agreement, dated as of November 6, 2008, among Manitowoc, the
Originators, the 


 

















 


Seller,
the Agent and JPMorgan Chase Bank, N.A., as the same may be amended,
supplemented or otherwise modified from time to time.


 


(d)           Clause (s) of Exhibit IV
to the Agreement is replaced in its entirety with the following:


 


(s)           Financial Covenants.


 


(i)            Maximum Consolidated Total Leverage Ratio. 
The Servicer shall cause the Consolidated Total Leverage Ratio to be
less than (a) 4.00 to 1.00 at all times during the period from the Effective
Date (as defined in the Credit Agreement) to and including December 30,
2009, (b) 3.75 to 1.00 at all times during the period from December 31,
2009 to and including December 30, 2010 and (c) less than 3.50 to
1.00 at all times thereafter.


 


(ii)           Maximum Consolidated Senior Leverage
Ratio.  The Servicer shall cause the Consolidated
Senior Leverage Ratio to at all times be less than 3.50 to 1.0.


 


(iii)          Minimum Consolidated Interest Coverage
Ratio.  The Servicer shall not permit the
Consolidated Interest Coverage Ratio for any fiscal quarter of the Servicer set
forth below to be less than or equal to the ratio set forth opposite such
fiscal quarter below:


 


	
  Fiscal Quarter Ending

  	
   

  	
  Ratio

  
	
  June 30, 2008

  	
   

  	
  2.50:1.00

  
	
  September 30, 2008

  	
   

  	
  2.50:1.00

  
	
  December 31, 2008

  	
   

  	
  2.50:1.00

  
	
  March 31, 2009

  	
   

  	
  2.50:1.00

  
	
  June 30, 2009

  	
   

  	
  2.75:1.00

  
	
  September 20, 2009

  	
   

  	
  2.75:1.00

  
	
  December 31, 2009

  	
   

  	
  2.75:1.00

  
	
  March 31, 2010

  	
   

  	
  2.75:1.00

  
	
  Thereafter

  	
   

  	
  3.00:1.00

  



 


SECTION 3.           Consent Regarding Amended and Restated
Company Notes.  At the Seller’s request and pursuant to clause
(q)(i) of Exhibit IV to the Agreement, the Agent hereby consents to
the Seller’s issuance on the date hereof to each Originator of an amended and
restated Company Note in substantially the form attached as Exhibit B
to the Purchase and Sale Agreement in substitution and replacement of each
outstanding Company Note heretofore issued by the Seller.


 


SECTION 4.           Representations and Warranties. 
On the date hereof, each of the Seller and Manitowoc hereby represents
and warrants (as to itself) to the Purchaser and the Agent as follows:


 


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(a)           after giving effect to this Amendment, no
event or condition has occurred and is continuing which constitutes an
Termination Event or Unmatured Termination Event;


 


(b)           after giving effect to this Amendment,
the representations and warranties of such Person set forth in the Agreement
and each other Transaction Document are true and correct as of the date hereof,
as though made on and as of such date (except to the extent such
representations and warranties relate solely to an earlier date and then as of
such earlier date); and


 


(c)           this Amendment constitutes the valid and
binding obligation of such Person, enforceable against such Person in
accordance with its terms.


 


SECTION 5.           Effectiveness. 
This Amendment shall be effective, as of the date hereof, upon receipt
by the Agent of the following (in each case, in form and substance reasonably
satisfactory to the Agent):


 


(a)           counterparts of this Amendment duly
executed by each of the parties hereto;


 


(b)           an executed copy of a letter from
JPMorgan Chase Bank, N.A. to Manitowoc confirming that the transactions
contemplated by the Agreement constitute a “Permitted Securitization” under the
Credit Agreement (as defined in Section 2(b) above);


 


(c)           counterparts to the Intercreditor
Agreement (as defined in Section 2(c) above) duly executed by
each of the parties thereto; and


 


(d)           an opinion of counsel to the Seller and
Manitowoc opining that the transactions contemplated by the Agreement do not
conflict with, or result in a breach of, or constitute a default under the
Credit Agreement (as defined in Section 2(b) above).


 


SECTION 6.           Miscellaneous. 
The Agreement, as amended hereby, remains in full force and effect.  Any reference to the Agreement from and after
the date hereof shall be deemed to refer to the Agreement as amended hereby,
unless otherwise expressly stated.  This
Amendment may be executed in any number of counterparts and by the different
parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which then taken together shall
constitute one and the same Amendment. 
This Amendment may be executed by facsimile or delivery of a “.pdf” copy
of an executed counterpart hereof.  This
Amendment shall be governed by, and construed in accordance with, the internal
laws of the State of New York (including Sections 5-1401 and 5-1402 of the
General Obligations Law of the State of New York, but without regard to any
other conflict of laws provisions thereof) and the obligations, rights and
remedies of the parties under this Amendment shall be determined in accordance
with such laws.


 


[Signature pages follow]


 


3

















 


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


 


	
   

  	
  MANITOWOC
  FUNDING, LLC,

  
	
   

  	
  as
  Seller

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: 

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Amendment
No. 2 to Amended and Restated

Receivables Purchase Agreement


 


S-1

















 


	
   

  	
  THE
  MANITOWOC COMPANY, INC.,

  
	
   

  	
  as
  Servicer

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Amendment
No. 2 to Amended and Restated

Receivables Purchase Agreement


 


S-2

















 


	
   

  	
  NORDDEUTSCHE
  LANDESBANK GIROZENTRALE, as Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Amendment
No. 2 to Amended and Restated

Receivables Purchase Agreement


 


S-3

















 


	
   

  	
  HANNOVER
  FUNDING COMPANY LLC,

  
	
   

  	
  as
  Purchaser

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Amendment
No. 2 to Amended and Restated

Receivables Purchase Agreement


 


S-4