Exhibit
10.61
AMENDMENT NO.
5
THIS AMENDMENT NO. 5 TO
THE RECEIVABLES TRANSFER AGREEMENT (the ‘‘
Amendment ’’) is entered into as of December 31,
2005 by and among Nalco Receivables LLC, as transferor (the
‘‘ Transferor ’’), Nalco Company
(‘‘ NALCO ’’ and together with the
Transferor, the ‘‘ Nalco Parties
’’), as Collection Agent, Park Avenue Receivables
Company, LLC, as a CP Issuer and JPMorgan Chase Bank, N.A., as a
Funding Agent, an APA Bank and as Administrative Agent. Defined
terms used herein and not otherwise defined herein shall have the
meaning given to them in the RTA (defined below).
PRELIMINARY
STATEMENTS
A. The Transferor,
NALCO, the Transferees, the Funding Agent and the Administrative
Agent are parties to that certain Receivables Transfer Agreement
among the parties referred to above dated as of June 25, 2004, as
amended by (i) Waiver and Amendment No. 1 among the parties
referred to above entered into as of March 30, 2005, (ii) Amendment
No. 2 among the parties referred to above entered into as of June
30, 2005, (iii) Amendment No. 3 among the parties referred to above
entered into as of September 30, 2005, and (iv) Amendment No. 4
among the parties referred to above entered into as of December 31,
2005 (the ‘‘ RTA ’’).
B. The Transferor
has requested an amendment of certain provisions of the
RTA.
C. The Transferees,
the Funding Agents, the Required APA Banks and the Administrative
Agent have agreed to such request on and subject to the terms and
conditions hereinafter set forth.
D. JPMorgan Chase
Bank, N.A. is the only APA Bank as of the date hereof and
constitutes the Required APA Banks.
NOW, THEREFORE, in
consideration of the premises set forth above, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
1. Accuracy of
Preliminary Statements . The parties
agree that the foregoing Preliminary Statements are true and
correct in all respects.
2.
Amendments . Section 7.1(l) and
Section 7.1(m) of the RTA are hereby amended to read in their
entirety as follows:
‘‘(l) the average
Default Ratio for the three (3) preceding Monthly Settlement
Periods exceeds 2.65% (except 3.75% in the case of each of the
Monthly Settlement Periods ending on the last day of each month
from and including March, 2005 to and including February, 2006);
or’’
‘‘(m) the average
Delinquency Ratio for the three (3) preceding Monthly Settlement
Periods exceeds 5.80% (except 8.50% in the case of each of the
Monthly Settlement Periods ending on the last day of each month
from and including March, 2005 to and including February, 2006);
or’’
3. Condition
Precedent . This Amendment shall become
effective and be deemed effective as of the date first above
written (the ‘‘ Effective Date ’’)
upon receipt by the Administrative Agent of an executed counterpart
of this Amendment from each of the parties hereto.
4. Covenants,
Representations and Warranties of the Nalco Parties
.
(a) On the
Effective Date, each of the Nalco Parties hereby reaffirms all
covenants, representations and warranties made by such Nalco Party
in the RTA, to the extent the same are not modified hereby and
agrees that all such covenants, representations and warranties
shall be deemed to have been re-made as of the Effective
Date.
(b) Each of the
Nalco Parties hereby represents and warrants that this Amendment
constitutes the legal, valid and binding obligation of such Nalco
Party, enforceable against such Nalco Party in
1
accordance with its
terms. The execution, delivery and performance by each Nalco Party
of this Amendment: (i) are within such Nalco Party’s power;
(ii) have been duly authorized by all necessary or proper corporate
action; (iii) are not in contravention of any provision of such
Nalco Party’s certificate of incorporation, bylaws or other
organizational documents; (iv) will not violate any law applicable
to such Nalco Party; (v) will not conflict with or result in the
breach or termination of, constitute a default under or accelerate
any performance required by, any indenture, mortgage, deed of
trust, lease, agreement or other instrument to which such Nalco
Party is a party or by which such Nalco Party or any of its
respective property is bound; (vi) will not result in the creation
or imposition of any lien upon any of the property of such Nalco
Party; and (vii) do not require the consent or approval of any
governmental authority or any other Person, except those which were
duly obtained, made or complied with prior to the Effective
Date.
5. Reference to
and Effect on the RTA .
(a) On the
Effective Date, each reference in the RTA and in each of the other
Transaction Documents to ‘‘this
Agreement,’&rsq
