Exhibit
10.1
EXECUTION
COPY
AMENDMENT NO.
2
THIS AMENDMENT NO. 2 TO
THE RECEIVABLES TRANSFER AGREEMENT (the " Amendment ") is
entered into as of May 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 Waiver and Amendment No. 1 among the
parties referred to above entered into as of March 30, 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 of
March, April, May, June, July and August 2005); 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 of
March, April, May, June, July and August 2005); 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
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
