Exhibit 10.50

 

FIRST AMENDMENT TO CREDIT AGREEMENT

 

THIS FIRST AMENDMENT TO CREDIT AGREEMENT dated as of January 17, 2017 (this “Amendment”), is entered into among RITCHIE BROS. AUCTIONEERS INCORPORATED, a Canadian corporation (the “Company”), certain Subsidiaries of the Company identified on the signature pages hereto (each a “Designated Borrower” and, together with the Company, the “Borrowers” and each a “Borrower”), the Guarantors identified on the signature pages hereto, the Lenders party hereto, and BANK OF AMERICA, N.A., as administrative agent (the “Administrative Agent”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Credit Agreement (defined below). 

 

RECITALS

 

A.           The Borrowers, the Guarantors, the Lenders and the Administrative Agent entered into that certain Credit Agreement dated as of October 27, 2016 (as amended and modified from time to time, the “Credit Agreement”).

 

B.           The parties hereto have agreed to amend the Credit Agreement as provided herein.

 

C.           In consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows.

 

AGREEMENT

 

1.          Amendments to Credit Agreement.

 

(a)          The following definition appearing in Section 1.01 of the Credit Agreement is hereby amended to read as follows:

 

“Delayed-Draw Term Loan Commitment” means, as to any Term Lender, such Term Lender’s obligation to make its portion of the Delayed-Draw Term Loan to the Company and/or Ritchie Bros. Auctioneers (Canada) Ltd. pursuant to Section 2.01(c), in the principal amount set forth opposite such Term Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Term Lender becomes a party hereto. The aggregate principal amount of the Delayed-Draw Term Loan Commitments of all of the Lenders as in effect on the Closing Date is $325,000,000.

 

(b)          Section 1.05(d). Section 1.05(d) of the Credit Agreement is hereby amended to read as follows:

 

(d)          Notwithstanding anything to the contrary contained herein, if any Delayed-Draw Term Loan is denominated in Canadian Dollars, the Spot Rate therefor shall be fixed as of the date of the Borrowing thereof for the term of this Agreement.

 

(c)          Section 2.01(c). Section 2.01(c) of the Credit Agreement is hereby amended to read as follows:

 

(c)          Delayed-Draw Term Loan. Subject to the terms and conditions set forth herein, each Term Lender with a Delayed-Draw Term Loan Commitment severally agrees to make its portion of a term loan to the Company and/or Ritchie Bros.

 

 

Auctioneers (Canada) Ltd. in Dollars or Canadian Dollars in up to five (5) Borrowings which shall all be made on a single Business Day during the Availability Period in an amount not to exceed such Term Lender’s Delayed-Draw Term Loan Commitment (such Borrowings, individually and collectively, the “Delayed-Draw Term Loan”). Amounts repaid on the Delayed-Draw Term Loan may not be reborrowed. The Delayed-Draw Term Loan may consist of Base Rate Loans (to the extent that the initial Borrowing thereof was in Dollars), Canadian Prime Rate Loans (to the extent that the initial Borrowing thereof was in Canadian Dollars) or Eurocurrency Rate Loans, or a combination thereof, as further provided herein.

 

(d)          Section 2.07(d). Section 2.07(d) of the Credit Agreement is hereby amended to read as follows:

 

(d)          Delayed-Draw Term Loan. Each of the Company and Ritchie Bros. Auctioneers (Canada) Ltd. shall repay the outstanding principal amount of its Delayed-Draw Term Loan in the currency in which it was originally funded, in installments payable on the last day of each calendar quarter (i.e. March 31, June 30, September 30 and December 31), commencing on the first full calendar quarter after the Delayed-Draw Term Loan has been funded, with each such installment being equal to (i) for the first eight (8) full calendar quarters after the Borrowing of the Delayed-Draw Term Loan, 1.25% of the original principal amount of the Delayed-Draw Term Loan and (ii) each calendar quarter thereafter, 2.5% of the original principal amount of the Delayed-Draw Term Loan, in each case, as such installments may be adjusted as a result of prepayments made pursuant to Section 2.05, unless accelerated sooner pursuant to Section 8.02; provided, that, to the extent not previously paid, the aggregate unpaid principal balance of the Delayed-Draw Term Loan shall be due and payable on the Maturity Date.

 

2.          Effectiveness; Conditions Precedent. This Amendment shall be effective as of the date hereof upon receipt by the Administrative Agent of copies of this Amendment duly executed by the Loan Parties, the Required Lenders and the Administrative Agent.

 

3.          Ratification of Credit Agreement. Each Loan Party acknowledges and consents to the terms set forth herein and agrees that this Amendment does not impair, reduce or limit any of its obligations under the Loan Documents.

 

4.          Authority/Enforceability. Each Loan Party represents and warrants as follows:

 

(a)          It has taken all necessary action to authorize the execution, delivery and performance of this Amendment.

 

(b)          This Amendment has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity and principles of good faith and fair dealing.

 

(c)          No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Amendment other than (a) those that have already been obtained and are in full force and effect, and (b) except to the extent that the failure to obtain or make such approval, consent,

 

 

exemption, authorization, registration, action, notice or filing would not reasonably be expected to have a Material Adverse Effect.

 

(d)          The execution, delivery and performance of this Amendment does not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien (other than Permitted Liens) under (A) any material Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (B) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject, in each case, except to the extent any such conflict, breach or contravention would not reasonably be expected to have a Material Adverse Effect or (iii) violate any applicable Law, except to the extent any such violation would not reasonably be expected to have a Material Adverse Effect.

 

5.          Representations and Warranties of the Loan Parties. Each Borrower represents and warrants that after giving effect to this Amendment (a) the representations and warranties of the Loan Parties set forth in Article V of the Credit Agreement are true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct) on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct) as of such earlier date, and (b) no Default exists.

 

6.          Counterparts/Facsimile. This Amendment is a Loan Document. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of executed counterparts of this Amendment by facsimile or pdf shall be effective as an original.

 

7.          Governing Law. This Amendment and the rights and obligations of the parties hereunder shall be governed by and construed and interpreted in accordance with the laws of the state of NEW YORK.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.

 

BORROWERS
AND GUARANTORS1:	RITCHIE BROS. AUCTIONEERS INCORPORATED,
	a Canadian corporation

 

	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Chief Financial Officer
	RITCHIE BROS. HOLDINGS LTD.,
	a Canadian corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	President
	RITCHIE BROS. PROPERTIES LTD.,
	a Canadian corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	President
	RITCHIE BROS. AUCTIONEERS (CANADA) LTD.,
	a Canadian corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	President
	RITCHIE BROS. AUCTIONEERS (AMERICA) INC.,
	a Washington corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Agent
	RITCHIE BROS. PROPERTIES INC.,
	a Washington corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Agent

 

¹ Entities are signing in both capacities

  

 

BORROWERS
AND GUARANTORS2:	RITCHIE BROS. HOLDINGS (AMERICA) INC.,
	a Washington corporation

 

	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Agent
	RITCHIE BROS. HOLDINGS INC.,
	a Washington corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Agent
	RITCHIE BROS. HOLDINGS B.V.,
	a private company with limited liability (besloten vennootschap) incorporated under the laws of The Netherlands
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Attorney
	RITCHIE BROS. PROPERTIES B.V.,
	a private company with limited liability (besloten vennootschap) incorporated under the laws of The Netherlands
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Attorney
	RITCHIE BROS. AUCTIONEERS B.V.,
	a private company with limited liability (besloten vennootschap) incorporated under the laws of The Netherlands
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Attorney
	RITCHIE BROS. SHARED SERVICES B.V.,
	a private company with limited liability (besloten vennootschap) incorporated under the laws of The Netherlands
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Attorney

 

² Entities are signing in both capacities

 

 

BORROWERS

AND GUARANTORS³:

 

SIGNED for and on behalf of RITCHIE BROS. AUCTIONEERS PTY. LTD. (ACN 080 895 898) by its attorney Sharon Driscoll under a power of attorney dated 21 Oct. 2016 and the attorney declares that the attorney has not received any notice of the revocation of such power of attorney in the presence of:	) ) ) ) ) ) ) )
/s/ Darren Watt		/s/ Sharon Driscoll
Signature of witness		Signature of attorney
Darren Jeffrey Watt
Name of witness

 

SIGNED for and on behalf of RITCHIE BROS. PROPERTIES PTY. LTD. (ACN 080 895 772) by its attorney Sharon Driscoll under a power of attorney dated 21 Oct. 2016 and the attorney declares that the attorney has not received any notice of the revocation of such power of attorney in the presence of:	) ) ) ) ) ) ) )
/s/ Darren Watt		/s/ Sharon Driscoll
Signature of witness		Signature of attorney
Darren Jeffrey Watt
Name of witness

 

³ Entities are signing in both capacities

  

 

BORROWERS
AND GUARANTORS4:	RITCHIE BROS. PROPERTIES JAPAN KK,
	a Japanese corporation

 

	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Attorney
	RITCHIE BROS. AUCTIONEERS (JAPAN) Kabushiki Kaisha,
	a Japanese corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Attorney
	Signed by Sharon Driscoll for and on behalf of RITCHIE BROS. AUCTIONEERS (UK) LIMITED, as a Borrower
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Attorney

 

⁴ Entities are signing in both capacities

 

 

GUARANTORS:	BRIDGEPORT AGENCIES LTD.
	a British Columbia corporation

 

	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	President
	RITCHIE BROS. AUCTIONEERS (INTERNATIONAL) LTD.,
	a British Columbia corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	President
	RITCHIE BROS. FINANCIAL SERVICES LTD.,
	a Canadian corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Authorized Signatory
	RITCHIE BROS. REAL ESTATE SERVICES LTD.,
	a Canadian corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	President
	ASSETNATION, INC.,
	a Delaware corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Agent
	RBA HOLDINGS INC.,
	a Delaware corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Agent

 

 

GUARANTORS:	TOPAZ MERGERSUB, INC.,
	a Delaware corporation

 

	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Agent
	MASCUS USA INC.,
	a Florida corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Agent
	RITCHIE BROS. FINANCIAL SERVICES (AMERICA) INC.,
	a Nevada corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Agent
	SALVAGESALE SERVICES, INC.,
	a Texas corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Agent
	SALVAGESALE MEXICO HOLDING LLC,
	a Delaware limited liability company
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Agent
	SPINDLETOP GROUP, LLC,
	a Delaware limited liability company
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Agent
	BRIDGEPORT AGENCIES INC.,
	a Washington corporation
	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Agent

 

 

GUARANTORS:

Signed by Sharon Driscoll for and on behalf of RITCHIE BROS. AUCTIONEERS (UK) LIMITED, as a Guarantor

 

	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Attorney

 

GUARANTORS:	RITCHIE BROS. TECHNICAL SERVICES B.V.,
	a private company with limited liability (besloten vennootschap) incorporated under the laws of The Netherlands

 

	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Attorney

 

GUARANTORS:	MASCUS CANADA LIMITED,
	a Canadian  corporation

 

	By:	/s/ Sharon Driscoll
	Name:	Sharon Driscoll
	Title:	Authorized Signatory

 

 

ADMINISTRATIVE AGENT:	BANK OF AMERICA, N.A.,
	as Administrative Agent

 

	By:	/s/ Maurice Washington
	Name:	Maurice Washington
	Title:	Vice President

 

 

LENDERS:	BANK OF AMERICA, N.A.,
	as a Lender, L/C Issuer and U.S. Swing Line Lender

 

	By:	/s/ Daryl K. Hogge
	Name:	Daryl K. Hogge
	Title:	Senior Vice President
	bank of america, n.a., Tokyo Branch
	By:	/s/ Miwa Ohmori
	Name:	Miwa Ohmori
	Title:	Representative
	bank of america, n.a., acting through its Canada branch
	By:	/s/ Medina Sales de Andrade
	Name:	Medina Sales de Andrade
	Title:	Vice President

 

 

	ROYAL BANK OF CANADA,
	as a Lender, an L/C Issuer and Canadian Swing Line Lender

 

	By:	/s/ Baljit Mann
	Name:	Baljit Mann
	Title:	Authorized Signatory

 

 

	WELLS FARGO BANK, N.A., CANADIAN BRANCH,
	as a Lender
	By:	/s/ Chris Sheppard
	Name:	Chris Sheppard
	Title:	Vice President, Relationship Manager
	By:	/s/ John Davis
	Name:	John Davis
	Title:	Senior Vice President, Regional Manager

 

 

	EXPORT DEVELOPMENT CANADA,
	as a Lender

 

	By:	/s/ Allan T. Quiz
	Name:	Allan T. Quiz
	Title:	Senior Asset Manager
	By:	/s/ Michael Lambe
	Name:	Michael Lambe
	Title:	Asset Manager

 

 

	HSBC BANK CANADA,
	as a Lender

 

	By:	/s/ Todd Patchell
	Name:	Todd Patchell
	Title:	Vice President, Region Head of Large Corporate
	By:	/s/ Reid Hamilton
	Name:	Reid Hamilton
	Title	: Assistant Vice President, Corporate Banking

 

 

	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., CANADA BRANCH,
	as a Lender

 

	By:	/s/ Daniel Nanson
	Name:	Daniel Nanson
	Title:	Managing Director

 

 

	NATIONAL BANK OF CANADA,
	as a Lender
	By:	/s/ Manny Deol
	Name:	Manny Deol
	Title:	Director
	By:	/s/ David Torrey
	Name:	David Torrey
	Title:	Managing Director

 

 

	GOLDMAN SACHS BANK USA,
	as a Lender
	By:	/s/ Ushma Dedhiya
	Name:	Ushma Dedhiya
	Title:	Authorized Signatory

 

 

	RAYMOND JAMES BANK, N.A.,
	as a Lender
	By:	/s/ Cormac Mac Lochlainn
	Name:	Cormac Mac Lochlainn
	Title:	Senior Vice President, Corporate Banking

 

 

	THE BANK OF NOVA SCOTIA,
	as a Lender
	By:	/s/ Edwin Ho
	Name:	Edwin Ho
	Title:	Director, Credit Solutions
	By:	/s/ Hilary Thompson
	Name:	Hilary Thompson
	Title:	Director, Commercial Banking