Exhibit 10.5
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COMFORCE OPERATING, INC.
as Issuer,
and
WILMINGTON TRUST COMPANY,
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of December 4, 2000
12% Senior Notes Due 2007, Series A
12% Senior Notes Due 2007, Series B
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SECOND SUPPLEMENTAL INDENTURE, dated as of December 4, 2000 (the
"Supplemental Indenture"), between COMFORCE Operating, Inc., a Delaware
corporation (together with its successors as provided for in the Indenture
referred to below, the "Company"), and Wilmington Trust Company, as Trustee (the
"Trustee"), under an Indenture dated as of November 26, 1997, as previously
amended by the First Supplemental Indenture dated as of November 29, 2000 (as
amended thereby, the "Indenture"), with respect to the 12% Senior Notes due 2007
of the Company.
Section 9.1(a)(1) of the Indenture provides that, without the consent of
any Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, provided
that such amendment or supplement does not, as evidenced by an Opinion of
Counsel delivered to the Trustee, adversely affect the rights of any
Securityholder in any material respect. The Company and the Trustee are
executing this Supplemental Indenture to amend the definition of "Eligible
Accounts Receivable" in Section 1.1 to cure an ambiguity and inconsistency
contained therein.
ARTICLE I
AMENDMENTS
Section 1.01. Amendment of Section 1.1 of the Indenture.
The definition of "Eligible Account Receivable" is amended and restated as
follows:
"Eligible Account Receivable" means any account receivable, net of any
prepayments, progress payments, deposits and retentions, owing to the
Company or any Restricted Subsidiary or to a special purpose entity upon
assignment thereto by the Company or any Restricted Subsidiary in
connection with a Securitization, provided that the account meets the
following specifications:
(a) The account is not more than one hundred and twenty (120) days from
the date of the invoice therefor;
(b) The account is not subject to any prior assignment, claim, lien, or
security interest other than in favor of the Company or any Restricted
Subsidiary or in connection with a Securitization or the New Credit
Facility, and the Company or any Restricted Subsidiary will not make
any further assignment of the account or create any further security
interest in the account other than in favor of the Company or any
Restricted Subsidiary or in connection with a Securitization or the
New Credit Facility, nor permit its rights in the account to be
reached by attachment, levy, garnishment or other judicial process;
(c) The account arose in the ordinary course of the business of, or was
acquired by, the Company or any Restricted Subsidiary;
(d) The account does not arise with respect to an account debtor from whom
fifty percent (50%) or more of the accounts are more than one hundred
and twenty days (120) from the date of the invoice therefore; and
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(e) No notice of bankruptcy, insolvency or material adverse change of the
account debtor has been received by or is known to the Company.
ARTICLE II
MISCELLANEOUS
Section 2.01. Definitions. All terms used in this Supplemental Indenture
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have the meanings specified in the Indenture unless otherwise defined herein or
unless the context otherwise specifies or requires.
Section 2.02. Successors and Assigns. All the covenants and agreements by
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the Company contained in this Supplemental Indenture shall bind its successors
and assigns. All agreements of the Trustee contained in this Supplemental
Indenture binds its successors.
Section 2.03. Execution in Counterparts. This Supplemental Indenture may
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be executed in any number of counterparts, each of which when so executed shall
be deemed to be an original, but all of which counterparts shall together
constitute one and the same instrument.
Section 2.04 Governing Law. This Supplemental Indenture shall be
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governed by, and construed in accordance with, the laws of the State of New
York, but without giving effect to applicable principles of conflicts of laws to
the extent that the application of the laws of another jurisdiction would be
required thereby.
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IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to
be duly executed as of the date first written above.
COMFORCE OPERATING, INC.
By:_____________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By:______________________
Name:
Title:
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