Exhibit 10.41


 


PRE-HANDOVER OCCUPANCY RENTAL AGREEMENT
AND AMENDMENT TO


DEVELOPMENT AGREEMENT 


 


THIS AGREEMENT is dated as of November 25, 2009.


 


BETWEEN:


 


RITCHIE BROS. PROPERTIES LTD.


9500 Glenlyon Parkway


Burnaby, British Columbia V5J 0C6


 


(“RB”)


 


AND:


 


RITCHIE BROS. AUCTIONEERS (CANADA) LTD.


9500 Glenlyon Parkway


Burnaby, British Columbia V5J 0C6


 


(the “Tenant”)


 


AND:


 


THE GREAT-WEST LIFE ASSURANCE COMPANY


c/o Suite 3000, 650 West Georgia Street


P.O. Box 11505


Vancouver, British Columbia V6B 4N7


 


(“Great-West Life”)


 


AND:


 


LONDON LIFE INSURANCE COMPANY


c/o Suite 3000, 650 West Georgia Street


P.O. Box 11505


Vancouver, British Columbia V6B 4N7


 


(“London Life” and together with Great-West
Life, the “Owner”).


 


WHEREAS:


 


		A.	Pursuant to a Development Agreement (“Development Agreement”)
                                         dated August 12, 2008 between RB and the Owner, RB is responsible for managing the development,
                                         construction and completion of the Building and associated works on the Lands which are
                                         located at 9500 Glenlyon Parkway, Burnaby, British Columbia;



 


		B.	Pursuant to a Lease (the “Lease”) dated August
                                         12, 2008 between the Owner as landlord and the Tenant as tenant, the Owner agreed to demise
                                         and lease to the Tenant and the Tenant agreed to lease from the Owner the Building and
                                         the Lands, commencing on the Handover Date;



 




     


     

    

 


		C.	The Tenant is an affiliate of RB;



 


		D.	Notwithstanding that the Handover Date has not occurred, the Tenant
                                         is in occupation of the Building and the Lands;



 


		E.	RB, the Tenant and the Owner have agreed to enter into this Agreement
                                         to set out the terms and conditions upon which the Tenant will occupy the Building and
                                         the Lands prior to the Handover Date and the terms and conditions upon which RB will
                                         proceed with the completion of the Work; and



 


		F.	RB and the Owner have agreed to amend the Development Agreement
                                         as set out herein.



 


THIS AGREEMENT WITNESSES THAT in consideration of the mutual
covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:


 


		1.	Interpretation



 


All terms that are capitalized in this Agreement and are not otherwise
defined herein will have the same defined meanings as are ascribed to such terms in the Development Agreement, or, where specifically
indicated, the Lease.


 


		2.	Occupation Term



 


The Tenant is permitted to occupy the Building and the Lands pursuant
to the terms of this Agreement for the period commencing on August 28, 2009 and ending on the Handover Date.


 


		3.	Compliance with the Lease



 


The terms and conditions of the Lease will be incorporated by reference
herein and will apply mutatis mutandis to the occupation of the Building and the Lands by the Tenant under this Agreement.
The Tenant and the Owner will comply with the terms and conditions of the Lease during the term of this Agreement, except to the
extent that such terms and conditions are contrary to or inconsistent with the terms of this Agreement, in which case this Agreement
shall apply.


 


		4.	Occupation Rent



 


Upon the execution of this Agreement, the Tenant will forthwith
pay to the Owner monthly occupation rent and Additional Rent (as defined in the Lease) as follows:


 


		(a)	occupation rent of $262,093.65 for the month of September 2009;
	 	 	 



		(b)	occupation rent of $262,093.65 for the month of October 2009;
	 	 	 



		(c)	occupation rent of $336,017.50 for the month of November 2009;
                                         and



 




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		(d)	Additional Rent from August 28, 2009.



 


On the first day of each month from December 1, 2009 and continuing
until the Handover Date, the Tenant will pay to the Owner occupation rent of $336,017.50 and Additional Rent as set out in, and
in accordance with, Article 4 of the Lease. For greater certainty, the parties agree that until the Handover Date, Basic Rent
(as defined in the Lease) will for the purposes of this Agreement be read as occupation rent.


 


The Owner and the Tenant acknowledge and agree that the occupation
rent payable under this Agreement will not be subject to adjustment in accordance with section 15.2 of the Agreement of Purchase
and Sale (the “Purchase Agreement”) dated May 13,2008 between the Owner and RB.


 


		5.	Payment of Basic Rent



 


RB and the Owner acknowledge and agree that, notwithstanding any
provision of the Lease:


 


		(a)	no Basic Rent will be payable by the Tenant to the Owner under
                                         the Lease during the term of this Agreement;



 


		(b)	that portion of the occupation rent paid by the Tenant to the
                                         Owner in respect of the days of the month from and including the Handover Date in the
                                         month in which Handover occurs (calculated on a per diem basis) will be deemed to be,
                                         and credited as, Basic Rent paid by the Tenant to the Owner pursuant to the Lease (the
                                         “Credited Basic Rent”); and



 


		(c)	the Tenant will pay to the Owner on the Handover Date the difference,
                                         if any, between (i) the amount of Basic Rent payable on the Commencement Date (as defined
                                         in the Lease) adjusted in accordance with section 4.6 of the Lease and section 15.2 of
                                         the Purchase Agreement, and (ii) the amount of the Credited Basic Rent. If the amount
                                         of such difference is negative as a result of an adjustment pursuant to section 15.2
                                         of the Purchase Agreement, the Owner will pay the amount of such difference to the Tenant
                                         on the Handover Date.



 


		6.	Development Agreement



 


		(a)	The Owner and RB acknowledge and agree that the acceptance
                                         provisions in Article 10 of the Development Agreement and the handover provisions in
                                         Article 11 of the Development agreement remain in full force and effect subject to subsection
                                         5(b) and section 8 below.



 


		(b)	With respect to Section 10.8(a)(iii) of the Development Agreement,
                                         the Owner and RB acknowledge and agree that the Tenant will be in occupation of the Building
                                         and the Lands under this Agreement at the time at which Handover occurs and such occupation
                                         will not prevent possession of the Project from being delivered to the Owner in accordance
                                         with the terms of the Development Agreement.



 




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		7.	RB’s Covenants



 


RB covenants with the Owner to continue to diligently perform the
Work and complete the Project in accordance with:


 


		(a)	the terms and conditions of the Development Agreement, as amended
                                         by section 8 below; and



 


		(b)	the timetable as set out in Schedule A.



 


		8.	Amendments to Development Agreement



 


The Owner and RB acknowledge and agree that the Development Agreement
is amended as follows:


 


		(a)	section 1.1(x) is deleted in its entirety and replaced with
                                         the following:



 


		“(x)	“Handover
                                         Date” means 10:00 am (Vancouver time) on the date which is ten (10) Business Days
                                         after the issuance of the Acceptance by the Owner in accordance with section 10.6;”;



 


		(b)	section 1.1(gg) is deleted in its entirety and replaced with
                                         the following:



 


		“(gg)	“Outside
                                         Completion Date” means, subject only to a Permitted Excuse, February 28, 2010;”;



 


		(c)	section l.l(hh) is deleted in its entirety and replaced with
                                         the following:



 





	 	“(hh)	“Outside
    Handover Date” means, subject only to a Permitted Excuse, May 7,2010;”; and







 


		(d)	section 1.1(ddd) is deleted in its entirety and replaced with
                                         the following:



 





	 	“(ddd)	“Totally
    Completed” means the sufficient completion of the Project such that:







 





		(i)	RB considers that the Project is
                                         ready for Acceptance in accordance with Article 10 hereof;



 


		(ii)	the Building is ready for use
                                         for the purposes for which it was built; and



 


		(iii)	the final certificate of payment
                                         to be issued in accordance with the CCDC2 has been so issued,



 


and “Total Completion” will have the
meaning that is correlative to the foregoing;”.


 




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		9.	Termination



 


This Agreement, other than sections 5 and 8 hereof, will terminate
upon the Handover Date.


 


		10.	Entire Agreement



 


This Agreement contains all of the terms and conditions of the
agreement between the parties hereto relating to matters herein provided and supersedes all previous agreements or representations
of any kind, written or verbal, made by anyone in reference thereto, except as specifically provided herein.


 


		11.	Schedule



 


Schedule A attached to this Agreement forms a part of this Agreement.


 


		12.	Amendments



 


This Agreement will not be modified or amended in any way except
in writing signed by all parties hereto.


 


		13.	Severability



 


If any provision of this Agreement is or becomes illegal or unenforceable,
it will during such period that it is illegal or unenforceable be considered separate and severable from the remaining provisions
of this Agreement which will remain in force and be binding as though the said provision had never been included.


 


		14.	Assignment



 


This Agreement may not be assigned by any party hereto without
the prior written consent of each of the other parties hereto.


 


		15.	Binding Effect



 


This Agreement will bind and enure to the benefit of the parties
hereto and their respective successors and permitted assigns.


 


		16.	Governing Law



 


This Agreement will be governed by the laws applicable in the Province
of British Columbia and the courts of the Province of British Columbia will have exclusive jurisdiction to entertain and determine
all disputes and claims, whether for specific performance, injunction, declaration or otherwise arising out of or in any way connected
with the construction, breach, or threatened breach of this Agreement.


 


		17.	Headings for Convenience Only



 


The division of this Agreement into sections, subsections and paragraphs
and the insertion of headings is for the convenience of reference only and will not affect the construction or interpretation
of this Agreement.


 




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		18.	Currency



 


All sums of money expressed herein are in the lawful currency of
Canada. 19.Time of the Essence Time is of the essence of this Agreement.


 


		19.	Time of the Essence



 


Time is of the essence of this Agreement.


 


IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the date first above written.


 





	 	RITCHIE
    BROS. PROPERTIES LTD.
	 	by its
    authorized signatory:
	 	 
	 	/s/
    Darren Watt
	 	Name:	DARREN WATT
	 	 	 
	 	RITCHIE
    BROS. AUCTIONEERS
	 	(CANADA)
    LTD.
	 	by its
    authorized signatory:
	 	 
	 	/s/
    Darren Watt
	 	Name:	DARREN WATT
	 	 	 
	 	THE
    GREAT-WEST LIFE ASSURANCE
	 	COMPANY
	 	by its
    authorized signatories:
	 	 
	 	/s/
    Murray Wilks
	 	Name:	MURRAY WILKS
	 	 	 
	 	
	 	Name:	
	 	 	 
	 	LONDON
    LIFE INSURANCE COMPANY
	 	by its
    authorized signatories:
	 	 
	 	/s/
    Murray Wilks
	 	Name:	MURRAY WILKS
	 	 	 
	 	
	 	Name:	







 




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SCHEDULE A





 



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