Exhibit 10.12(e)


 


EXECUTION COPY


 


AMENDMENT
NO. 9 TO AMENDED AND

RESTATED RECEIVABLES PURCHASE AGREEMENT


 


This AMENDMENT NO. 9 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT, dated as of March 29, 2010 (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, restated, supplemented or otherwise modified from time to
time, the “Agreement”);


 


WHEREAS, concurrently herewith and pursuant
to that certain Joinder Agreement, dated as of the date hereof, McCann’s
Engineering & Manufacturing Co., LLC (“McCann”), a California
limited liability company, is becoming party to the Purchase and Sale
Agreement, as an Originator thereunder (the “McCann Joinder”);


 


WHEREAS, concurrently herewith the Seller,
the Servicer, the Agent, McCann, Grove U.S. L.L.C., Manitowoc Cranes, LLC,
Manitowoc FSG Operations, LLC, Manitowoc FSG Services, LLC and The Northern
Trust Company are entering into the Third Amended and Restated Multi-Party
Lockbox Agreement, dated as of the date hereof (the “Northern Trust Lockbox
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 hereto 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 “Intercreditor Agreement” set
forth in Exhibit I to the Agreement is replaced in its entirety
with the following:


 


“Intercreditor Agreement” means the Sixth Amended and Restated
Intercreditor Agreement, dated as of March 29, 2010, 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.


 


(b)           Section 4.5 of the
Agreement is replaced in its entirety with the following:


 

















 


Section 4.5             Responsibilities
of the Seller.  Anything
herein to the contrary notwithstanding, the Seller shall (i) perform all
of its obligations, if any, and cause each Originator to perform all of such
Originator’s obligations, under the Contracts related to the Pool Receivables
to the same extent as if interests in such Pool Receivables had not been
transferred hereunder or, in the case of the Originators, under the Purchase
and Sale Agreement, and the exercise by the Agent or the Purchaser of its
rights hereunder shall not relieve the Seller or any Originator from any such
obligations and (ii) pay when due any taxes payable by the Seller when
due.  The Agent and the Purchaser shall
not have any obligation or liability with respect to any Pool Receivable, any
Related Security or any related Contract, nor shall any of them be obligated to
perform any of the obligations of the Seller under any of the foregoing.


 


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 of the 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 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;


 


(b)           counterparts of the McCann
Joinder, the Intercreditor Agreement (as defined in Section 2(a) above),
and the Northern Trust Lockbox Agreement, in each case duly executed by each of
the parties thereto;


 


(c)           an executed copy of a letter
from JPMorgan Chase Bank, N.A. to Manitowoc confirming that the transactions
contemplated by the Transaction Documents constitute a “Permitted
Securitization” under the Credit Agreement;


 


(d)           opinions of counsel to the
Seller and each Originator regarding certain corporate, enforceability,
security interests and bankruptcy matters in form and substance acceptable to
the Agent and customary for transactions similar to those contemplated by the
Transaction Documents; and


 


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(e)           such other agreements,
documents, lien searches, officer certificates and instruments as the Agent
shall request.


 


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]


 


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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. 9 to Amended and Restated

  Receivables Purchase Agreement

  



 


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  THE
  MANITOWOC COMPANY, INC.,

  
	
   

  	
  as
  Servicer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


	
   

  	
   

  	
  Amendment
  No. 9 to Amended and Restated

  Receivables Purchase Agreement

  



 


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  NORDDEUTSCHE
  LANDESBANK GIROZENTRALE, as Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


	
   

  	
   

  	
  Amendment
  No. 9 to Amended and Restated

  Receivables Purchase Agreement

  



 


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  HANNOVER
  FUNDING COMPANY LLC,

  
	
   

  	
  as
  Purchaser

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


	
   

  	
   

  	
  Amendment
  No. 9 to Amended and Restated

  Receivables Purchase Agreement

  



 


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