Exhibit 10.12


 


EXECUTION COPY


 


AMENDMENT NO.
4 TO AMENDED AND

RESTATED RECEIVABLES PURCHASE AGREEMENT


 


This AMENDMENT NO. 4 TO AMENDED
AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of June 29, 2009
(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 “Credit Agreement” set forth in Exhibit I to
the Agreement is amended by replacing the date “November 6, 2008” where it
appears therein with the date “June 12, 2009”.


 


(b)                                 The
following new defined term is hereby added to Exhibit I to the
Agreement in appropriate alphabetical order:


 


“Consolidated Senior Secured Leverage Ratio” has the meaning set
forth in the Credit Agreement, without giving effect to any amendment,
amendment and restatement, supplement or other modification to the Credit
Agreement (unless such amendment, amendment and restatement, supplement or
other modification has been consented to in writing by the Agent).


 


(c)                                  The
following defined term is hereby deleted from Exhibit I to the
Agreement:


 


“Consolidated Senior Leverage Ratio”
has the meaning set forth in the Credit Agreement, without giving effect to any
amendment, amendment and restatement, supplement or other modification to the
Credit Agreement (unless such amendment, amendment and restatement, supplement
or other modification has been consented to in writing by the Agent).


 

















 


(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 will cause the Consolidated Total Leverage Ratio at all
times during the fiscal quarters of the Servicer set forth below to be less
than the ratio set forth opposite such fiscal quarter below:


 


	
  Fiscal Quarter Ending

  	
   

  	
  Ratio

  
	
   

  	
   

  	
   

  
	
  June 30,
  2009

  	
   

  	
  5.25:1.00

  
	
  September 30,
  2009

  	
   

  	
  6.625:1.00

  
	
  December 31,
  2009

  	
   

  	
  7.125:1.00

  
	
  March 31,
  2010

  	
   

  	
  7.375:1.00

  
	
   

  	
   

  	
   

  
	
  June 30,
  2010

  	
   

  	
  7.375:1.00

  
	
  September 30,
  2010

  	
   

  	
  6.75:1.00

  
	
  December 31,
  2010

  	
   

  	
  6.25:1.00

  
	
  March 31,
  2011

  	
   

  	
  6.25:1.00

  
	
   

  	
   

  	
   

  
	
  June 30,
  2011

  	
   

  	
  6.00:1.00

  
	
  September 30,
  2011

  	
   

  	
  5.75:1.00

  
	
  December 31,
  2011

  	
   

  	
  5.125:1.00

  
	
  March 31,
  2012

  	
   

  	
  5.00:1.00

  
	
   

  	
   

  	
   

  
	
  June 30,
  2012

  	
   

  	
  4.50:1.00

  
	
  September 30,
  2012

  	
   

  	
  4.00:1.00

  
	
  December 31,
  2012,

  	
   

  	
  3.50:1.00

  
	
  and thereafter

  	
   

  	
   

  



 


(ii)           Maximum Consolidated
Senior Secured Leverage Ratio. The Servicer will cause the Consolidated
Senior Secured Leverage Ratio at all times during the fiscal quarter of the
Servicer set forth below to be less than the ratio set forth opposite such
fiscal quarter below:


 


	
  Fiscal Quarter Ending

  	
   

  	
  Ratio

  
	
   

  	
   

  	
   

  
	
  June 30, 2011

  	
   

  	
  5.25:1.00

  
	
  September 30, 2011

  	
   

  	
  5.25:1.00

  
	
  December 31, 2011

  	
   

  	
  4.50:1.00

  
	
  March 31, 2012

  	
   

  	
  4.50:1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2012

  	
   

  	
  4.00:1.00

  
	
  September 30, 2012

  	
   

  	
  4.00:1.00

  
	
  December 31, 2012,

  	
   

  	
  3.50:1.00

  
	
  and thereafter

  	
   

  	
   

  



 


2

















 


(iii)          Minimum Consolidated
Interest Coverage Ratio.  The
Servicer will 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, 2009

  	
   

  	
  2.75:1.00

  
	
  September 30, 2009

  	
   

  	
  2.25:1.00

  
	
  December 31, 2009

  	
   

  	
  1.875:1.00

  
	
  March 31, 2010

  	
   

  	
  1.875:1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2010

  	
   

  	
  2.00:1.00

  
	
  September 30, 2010

  	
   

  	
  2.125:1.00

  
	
  December 31, 2010

  	
   

  	
  2.125:1.00

  
	
  March 31, 2011

  	
   

  	
  2.125:1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2011

  	
   

  	
  2.25:1.00

  
	
  September 30, 2011

  	
   

  	
  2.30:1.00

  
	
  December 31, 2011

  	
   

  	
  2.40:1.00

  
	
  March 31, 2012

  	
   

  	
  2.625:1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2012

  	
   

  	
  2.75:1.00

  
	
  September 30, 2012,

  	
   

  	
  3.00:1.00

  
	
  and thereafter

  	
   

  	
   

  



 


SECTION 3.           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:


 


(a)           after giving effect to
this Amendment, no event or condition has occurred and is continuing which
constitutes a 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.


 


In addition to the foregoing, the Servicer
represents and warrants to the Seller, the Purchaser and the Agent that that
certain Amendment No. 2 to the Credit Agreement has become effective in
accordance with Section 4 thereof.


 


3

















 


SECTION 4.           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; and


 


(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.


 


SECTION 5.           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]


 


4

















 


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. 4 to Amended and Restated


Receivables
Purchase Agreement


 


S-1

















 


	
   

  	
  THE MANITOWOC COMPANY, INC.,

  
	
   

  	
  as Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


Amendment
No. 4 to Amended and Restated


Receivables
Purchase Agreement


 


S-2

















 


 


	
   

  	
  NORDDEUTSCHE LANDESBANK GIROZENTRALE, as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


Amendment
No. 4 to Amended and Restated


Receivables
Purchase Agreement


 


S-3

















 


	
   

  	
  HANNOVER FUNDING COMPANY LLC,

  
	
   

  	
  as Purchaser

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


Amendment
No. 4 to Amended and Restated


Receivables
Purchase Agreement


 


S-4