Exhibit 10.12(d)


 


EXECUTION COPY


 


AMENDMENT NO. 3 TO AMENDED AND


RESTATED RECEIVABLES PURCHASE AGREEMENT


 


This AMENDMENT NO. 3 TO
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of December 18,
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”);


 


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


 


WHEREAS, concurrently
herewith, the parties hereto are entering into an amended and restated Fee
Letter (the “A&R Fee Letter”) dated as of the date hereof;


 


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)           Section 1.6(b) of
the Agreement is amended by replacing the reference to “two percent (2%) per
annum” where it appears therein with a reference to “two and one-half
(2.50%) per  annum”


 


(b)           The definition of “Bank
Rate” set forth in Exhibit I to the Agreement is amended by
replacing the reference to “two percent (2%) per  annum” where it
appears in the proviso thereto with a reference
to “two and one-half (2.50%) per  annum”.


 


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


 


“Base Rate” means for any day, a
fluctuating interest rate per  annum as shall be in effect from
time to time, which rate shall be at all times equal to the greatest of (i) the
rate of interest most recently announced by NORD/LB at its branch in New York,
New York as its prime commercial rate for United States loans made in the
United States (which rate is not necessarily intended to be the lowest rate of
interest determined by NORD/LB in connection with extensions of credit) plus
one percent (1.00%) per  annum, (ii) the latest Federal Funds
Rate plus 


 

















 


one and one-half percent (1.50%) per  annum and (iii) the
Eurodollar Rate applicable to the Yield Period for which the Base Rate is then
being determined.


 


(d)           The definition of “CP
Rate” set forth in Exhibit I to the Agreement is amended by
replacing the reference to “two percent (2%) per  annum” where it
appears in the last sentence thereof with a reference to “two and one-half
(2.50%) per  annum”.


 


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


 


“Termination Discount” means, on any date of determination, an
amount determined pursuant to the following formula:


 


I x [(COF x 1.50) + UFR] x (2 x DSO/360)


 


Where:


 


	
  I

  	
   

  	
  =

  	
   

  	
  the Investment on such
  date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AD

  	
   

  	
  =

  	
   

  	
  the amount of Discount
  that accrues on the Investment on such date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  COF

  	
   

  	
  =

  	
   

  	
  AD x 360

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
         I

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DSO

  	
   

  	
  =

  	
   

  	
  Days Sales Outstanding on
  such date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UFR

  	
   

  	
  =

  	
   

  	
  the “Utilization Fee Rate”
  (as defined in the Fee Letter on such date)

  



 


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 and the A&R Fee Letter, 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 and the A&R Fee Letter, 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 and
the A&R Fee Letter constitute the valid and binding obligation of such
Person, enforceable against such Person in accordance with its terms.


 


2

















 


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)           counterparts to the
A&R Fee Letter, duly executed by each of the parties thereto.


 


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.]


 


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. 3 to Amended and Restated 


Receivables
Purchase Agreement


 


S-1

















 


	
   

  	
  THE MANITOWOC COMPANY, INC.,

  
	
   

  	
  as Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


Amendment
No. 3 to Amended and Restated 


Receivables
Purchase Agreement


 


S-2

















 


	
   

  	
  NORDDEUTSCHE LANDESBANK

  
	
   

  	
  GIROZENTRALE, as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


Amendment
No. 3 to Amended and Restated 


Receivables
Purchase Agreement


 


S-3

















 


	
   

  	
  HANNOVER FUNDING COMPANY LLC,

  
	
   

  	
  as Purchaser

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


Amendment
No. 3 to Amended and Restated 


Receivables
Purchase Agreement


 


S-4