EXHIBIT 10.12
EXECUTION COPY
SECOND AMENDMENT TO THE EMPLOYMENT AGREEMENT
This Second Amendment (this "AMENDMENT"), dated as of December 6,
1999, to the certain Employment Agreement dated as of February 4, 1998 between
ICM Equipment Company L.L.C. (the "COMPANY") and Xxxx Xxxxxx (the "EMPLOYEE"),
as amended by the First Amendment to Employment Agreement, dated as of May 26,
1999, between the Company and the Employee (such Agreement, as amended by the
First Amendment to the Employment Agreement, the "EMPLOYMENT AGREEMENT").
WHEREAS, the Company and the Employee (collectively, the "PARTIES") desire
to amend the Employment Agreement on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual agreements set forth herein,
the Parties agree as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings ascribed to such terms in the Employment Agreement.
2. DEFERRED SIGNING BONUS. Section 4.01 of the Employment Agreement is
hereby amended by deleting the last sentence of Section 4.01(c)(i).
3. ACKNOWLEDGMENT OF SUBORDINATION. Reference is hereby made to the Note
and Common Unit Acquisition Agreement, dated as of December 6, 1999 (the
"ACQUISITION AGREEMENT") among the Company, BRS Equipment Company, Inc., Xxx
Xxxxxxx and Southern Nevada Capital Corporation. The Employee hereby irrevocably
acknowledges and agrees that all principal, interest and all other amounts
payable under or in respect of the Notes (as such term is defined in the
Acquisition Agreement) are "Senior Indebtedness" for purposes of the Employment
Agreement.
4. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Utah (without reference to its rules as
to conflicts of law).
5. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute a single instrument.
6. AGREEMENT. In all other respects the Employment Agreement is ratified
and shall, as so changed by these amendments, continue in full force and effect.
7. NO STRICT CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event that an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date
first set forth above.
ICM EQUIPMENT COMPANY L.L.C.
By: /s/ Xxxx Xxxxxx
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Name:
Title:
/s/ Xxxx Xxxxxx
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XXXX XXXXXX
