Exhibit 10.138
Approved as to Form and Content
Secretary of Housing and Urban Development
By: ________________________________
Name:
Authorized Agent
Date: ______________________________
FIRST AMENDMENT TO FACILITY LEASE
Reference is made to the Facility Lease ("Lease"), dated as of December
15, 1996, by and between The Annapolitan Care Center, Inc. ("Landlord") and
CareMatrix of Annapolis, Inc. ("Tenant").
WHEREAS, Xxxxxx is being required to execute a Regulatory Agreement
(the "Tenant Regulatory Agreement") with the Secretary of Housing and Urban
Development ("HUD") relating to the Leased Property (as defined in the Lease);
and
WHEREAS, the Tenant Regulatory Agreement may obligate Tenant to make
payments to HUD with respect to the Leased Property over and above the payments
which Tenant is currently obligated to make under the Lease; and
WHEREAS, Xxxxxx also desires to have the ability to protect its
leasehold interest by being able to make certain other payments to third parties
that it is not currently obligated to make under the Lease.
NOW, THEREFORE, for good and valuable consideration, the sufficiency
and receipt of which is hereby acknowledged, Landlord and Xxxxxx hereby
agree as follows:
1. The following new Section 3.6 is hereby added to the Lease:
3.6 Limited Setoff Rights. In the event the Landlord (a) fails to make
any payments to HUD under either the Insured Mortgage or the Regulatory
Agreement (as defined in Section 10.1 below) or (b) has failed to make
payment(s) to any other third party in connection with the Leased
Property such that Tenant reasonably determines its use and enjoyment
of the Leased Property may be impaired by Landlord's failure to make
payment(s), the Tenant may (but shall not be obligated to) make such
payment(s) to HUD or to such third party after giving the Landlord at
least 15 business days notice of its intention to do so and
thereafter setoff against the Rent next coming due the full amount of
the payment(s) so made.
2. Except as expressly modified above and by the Agreement Amending
Commencement Date of Facility Lease, the Lease remains unchanged and in
full force and effect.
Executed as an instrument under seal as of the 23rd day of January, 1997.
CAREMATRIX OF ANNAPOLIS, THE ANNAPOLITAN CARE CENTER,
INC.
By: /s/ ????????????? By: /s/ Xxxxxx X. Test
Name: Xxxxxx X. Xxxx, President
Title:
