EXHIBIT 10.18
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FIRST AMENDMENT TO OPTION AND
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
This FIRST AMENDMENT TO OPTION AND PURCHASE AGREEMENT AND ESCROW
INSTRUCTIONS ("Amendment") is made and effective as of December 8, 1999, by and
between OTAY LAND COMPANY, LLC, a Delaware limited liability company ("Owner"),
and LAKES KEAN ARGOVITZ RESORTS-CALIFORNIA, LLC, a Delaware limited liability
company ("Optionee"), with reference to the facts set forth below.
RECITALS
A. Owner and Optionee entered into an Option and Purchase Agreement
and Escrow Instructions dated as of October 18, 1999 (the "Option Agreement"),
with respect to approximately eighty six (86) acres located in the County of San
Diego, California as more particularly described in the Option Agreement.
B. The parties desire to amend the Option Agreement on the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the recitals set forth above, the
mutual agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as set forth below.
1. Defined Terms. All terms with initial capital letters used herein
but not otherwise defined shall have the respective meanings set forth in the
Option Agreement.
2. Agreement Upon Road Alignment. Sections 4.2.3 and 4.3.2 of the
Option Agreement are hereby deleted in their entirety. Upon the Close of Escrow,
Owner will reserve in the Grant Deed a road easement in the location depicted in
Exhibit "A-1" attached to the Option Agreement (the "Road Alignment"). The road
easement will be exclusive except that Optionee may use the road easement for
purposes that do not interfere with the use of the road by Owner and its
invitees, successors and assigns and, if the road becomes a public road, such
easement shall be exclusive except to the extent the County of San Diego, allows
other uses. Owner will have the right to construct the road within the road
easement, at no expense to Optionee (except that Optionee will be responsible
for any improvements that provide access to the Property and any other cost to
accommodate Optionee's use or development of the Property), to County of San
Diego requirements and specifications and shall reserve in the Grant Deed an
easement for road, utility and related purposes, including the right to
construct, install, repair, maintain and replace the road and related utilities,
including a temporary easement for access and construction purposes over
portions of the Property adjacent to the road area. In addition, Optionee agrees
that Owner shall have the right to require Optionee to convey a new road
easement within the Road Alignment or fee title to the property within the Road
Alignment to the County for road purposes, in which case, for no additional
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consideration, Optionee will promptly execute and deliver any documents
reasonably necessary to effect such conveyance. Optionee shall have the right to
effectively relocate the road easement and the Road Alignment to another
location within the Property so long as (i) Optionee gives written notice to
Owner of such election prior to the earlier of the date Owner and its
consultants begin preparing improvement plans for the road or ten (10) Business
Days prior to the Close of Escrow, and, (ii) the new location of the road
easement and the Road Alignment is sufficient for construction of a public road
in accordance with County of San Diego, requirements and specifications. In such
event, the description of the road easement reserved in the Grant Deed will be
revised and Optionee agrees to execute and deliver to Owner any other documents
necessary to convey the road easement over the real property within the new
location of the Road Alignment to Owner. After the Close of Escrow, Optionee
will have no right to relocate the road easement.
3. Miscellaneous. This Amendment may be executed in counterparts,
each of which, taken together, shall constitute one fully executed original.
Except as expressly modified by this Amendment, the Option Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date set forth above.
OWNER: OPTIONEE:
OTAY LAND COMPANY, LLC, a LAKES KEAN ARGOVITZ RESORTS-
Delaware limited liability company CALIFORNIA, LLC, a Delaware
limited liability company
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
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Title: President Name: Xxxxx X. Xxxxxxxx
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Title: Member
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By:
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Name:
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Title:
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