Exhibit 10.12(a)
EXECUTION COPY
AMENDMENT NO. 2 TO SECOND AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT
This AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT, dated as of December 16, 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 Second Amended and
Restated Receivables Purchase Agreement, dated as of June 30, 2010 (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, Garland Commercial Ranges Limited ("Garland") is
becoming party to the Purchase and Sale Agreement, as an Originator thereunder
(the "Garland Joinder");
WHEREAS, concurrently herewith the Seller, the Purchaser, the Agent, Garland and
Bank of Montreal are entering into that certain Blocked Accounts Agreement,
dated as of the date hereof (the "Blocked Account Agreement");
WHEREAS, concurrently herewith the Seller, the Servicer, the Agent, Garland and
Harris N.A. are entering into that certain Lockbox and Assigned Account
Agreement, dated as of the date hereof (the "Lockbox and Blocked Account
Agreement");
WHEREAS, concurrently herewith, the parties hereto are entering into that
certain Third Amended and Restated Fee Letter, dated as of the date hereof (the
"A&R Fee Letter"); 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)
Section 1.4(e) of the Agreement is amended
by inserting the phrase "and PPSA" immediately following the phrase "under any
applicable UCC" where it appears therein.
(b)
Section 2.2 of the Agreement is amended by
inserting the phrase ", the PPSA" immediately following the phrase "after
default under the UCC" where it appears therein.
(c)
Section 3.1(a)(v) of the Agreement is
amended by inserting the phrase ", the PPSA of any applicable jurisdiction"
immediately following the phrase "the UCC of any applicable jurisdiction" where
it appears therein.
(d)
Exhibit I to the Agreement is hereby amended
by inserting the following new defined terms in appropriate alphabetical order:
"Conversion Rate" means, in relation to the conversion of Canadian dollars to
U.S. dollars on a particular day, the rate of exchange quoted by the Agent as
its spot rate of exchange for the conversion of Canadian dollars to U.S. dollars
at approximately noon (New York time) on such day.
"Garland" means Garland Commercial Ranges Limited, a corporation amalgamated
under the laws of Ontario.
"PPSA" means the Personal Property Security Act (Ontario).
"Special Obligor" means an Obligor that is both (i) set forth on Schedule V to
this Agreement and (ii) other