EXHIBIT 10.1
THIRD AMENDMENT TO OPTION AGREEMENT
AND JOINT ORDER TO TITLE COMPANY
THIS THIRD AMENDMENT TO OPTION
AGREEMENT AND JOINT ORDER TO TITLE COMPANY (the “
Amendment ”) is entered into this 28 th day of April,
2008 (the “ Effective Date ”), by and
between APOLLO GROUP, INC., an Arizona corporation (“
Option Grantor ”) and MACQUARIE RIVERPOINT AZ,
LLC, a Delaware limited liability company (the “ Option
Holder ”).
RECITALS:
A. Option Grantor and Option
Holder are parties to that certain Option Agreement dated June 20,
2006, as amended by that certain First Amendment to Option
Agreement dated March 7, 2007 and further amended by that
certain Second Amendment to Option Agreement dated March 17,
2008 (as amended, the “ Agreement
”).
B. Option Grantor and Option
Holder have agreed to order the Title Company to release the Option
Payment to Option Grantor.
C. Option Grantor and Option
Holder now desire to amend the Agreement to extend the Option
Exercise Date and the Closing Date as set forth in this
Amendment.
AGREEMENT:
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Recitals. Each of the
recitals set forth above are incorporated herein as covenants and
agreements of the parties hereto.
2. Definitions. All
initial capitalized terms used herein shall have the meanings
ascribed thereto in the Agreement, unless otherwise specifically
defined herein.
3. Option Payment.
Option Grantor and Option Holder hereby jointly order the Title
Company to release the Option Payment to Option Grantor, together
with any interest earned thereon accrued to the date of this
Amendment (the “Accrued Interest”). The Accrued
Interest shall be applied to the Purchase Price if the Option is
exercised and the transaction under the Purchase and Sale Agreement
is consummated in accordance with the terms thereof. Option Holder
hereby waives any defenses to the release of the Option Payment
existing as of the date of this Amendment, but will continue to
have the right to a return of the Option Payment as the result of
any Option Grantor’s default under the Agreement or the
Purchase and Sale Agreement following the date of this Amendment or
the failure of a condition precedent to Option Holder’s
performance under the Agreement or the Purchase and Sale Agreement,
which failure of the relevant condition is within the sole control
of, or caused solely by Option Grantor, including, without
limitation, under Section 4(d)(2), Section 4(d)(3) and
Section 4(d)(5) of the Agreement and Section 5(b),
Section 5(d), Section 5(f) and Section 5(g) of the Purchase
and Sale Agreement.
4. Option Exercise Date.
Section 3(b)(iii) of the Agreement is hereby amended in its
entirety to read as follows:
“If
Option Grantor approves the assignment of the Agreement to Third
Party Buyer (defined below) as evidenced by execution of the Option
Assignment (defined below), Option Holder may exercise the Option
by giving written notice (the “ Option Exercise
Notice ”) of the exercise thereof to Option Grantor
on or before the date that is not more than thirty (30) days
following the execution of the Option Assignment, but in no event
later than June 2, 2008 (the “ Option Exercise
Date ”). Notwithstanding anything contained in the
Agreement to the contrary, in no event will the Option Exercise
Date be extended beyond June 2, 2008.”
5. Closing Date. The
first sentence of Section 7 of the Agreement is hereby amended
in its entirety as follows:
“Upon the
exercise of the Option as provided in Section 3, the
closing of the transaction (the “ Closing
”) shall be held and delivery of all items shall be made
under the terms and conditions of the Purchase and Sale Agreement
through an escrow with the Title Company, on the date that is not
more than ten (10) calendar days after the Option Exercise
Date (the “ Closing Date ”) .
”
6. Third Party Buyer.
Not later than one (1) business day following the mutual
execution and delivery of this Amendment, Option Holder shall
disclose to Option Grantor in writing the identity of a party (the
“ Third Party Buyer ”) to which Option
Holder intends assign its right, title and interest under the
Agreement (the “ Replacement Transaction
”) . The written notice shall be accompanied by an
organizational chart for the Third Party Buyer, a list of all
affiliates (the “ Third Party Affiliates
”) and the name and contact information of a
representative of the Third Party Buyer who Option Grantor can
contact about the Replacement Transaction. Within two
(2) business days following such disclosure (the “
Consent Period &r
