EX-10.1






Exhibit 10.1




LEASE AGREEMENT




Between




SOLOMON AIRPARK, LLC




And




EMDEON BUSINESS SERVICES LLC




As of August 24, 2009




 









 





LEASE SUMMARY




The following is a summary of certain portions of this Lease.




	 	 	 
	Landlord:

	 	Solomon Airpark, LLC
	 
	 	 
	Landlord’s Address:

	 	4539 Trousdale Drive
	 

	 	Nashville, TN 37204
	 

	 	Attn: Gregory G. Turner
	 
	 	 
	 

	 	With a copy to:
	 
	 	 
	 

	 	White & Reasor, PLC
	 

	 	One American Center
	 

	 	3100 West End Avenue, Suite 1100
	 

	 	Nashville, TN 37203
	 

	 	Attn: John W. Stone, III
	 
	 	 
	Tenant:

	 	Emdeon Business Services LLC
	 
	 	 
	Tenant’s Address:

	 	3055 Lebanon Road, Suite 1000
	 

	 	Nashville, TN 37214
	 

	 	Attn: Real Estate Director
	 
	 	 
	 

	 	With a copy to: General Counsel
	 

	 	[Same Address]
	 
	 	 
	 

	 	And with a copy to:
	 
	 	 
	 

	 	Bass Berry & Sims, PLC
	 

	 	315 Deaderick Street, Suite 2700
	 

	 	Nashville, TN 37237
	 

	 	Attn: D. Mark Sheets
	 
	 	 
	Lease Term

	 	See definition in Section 2(a)
	 
	 	 
	Commencement Date:

	 	See definition in Section 2(b)
	 
	 	 
	Rent Commencement Date:

	 	Thirty (30) days after Commencement Date
	 
	 	 
	Expiration Date:

	 	180 months after Rent Commencement Date
	 
	 	 
	Minimum Rent:

	 	See Exhibit D
	 
	 	 
	Landlord’s Broker:

	 	Solomon Development, LLC
	 
	 	 
	Tenant’s Broker:

	 	Colliers Turley Martin Tucker






 









 




It is understood that the foregoing is intended as a summary of the Lease for convenience only and
if there is a conflict between the above summary and any provision of the Lease hereinafter set
forth, the latter shall control.



All capitalized terms not otherwise defined in this Lease that are defined in the Construction
Agreement attached to this Lease as Exhibit C, shall have the meanings assigned to such
terms in the Construction Agreement.




 ii




 









 




TABLE OF CONTENTS



	 	 	 	 	 	 	 
	1.	 	Lease of Property
	 	 	1	 
	2.	 	Term
	 	 	2	 
	3.	 	Rent
	 	 	3	 
	4.	 	Use of Building; Compliance with Legal Requirements
	 	 	4	 
	5.	 	Taxes, Assessments and Association Fees
	 	 	5	 
	6.	 	Insurance Coverage; Waiver of Subrogation
	 	 	6	 
	7.	 	Maintenance and Repair
	 	 	8	 
	8.	 	Compliance, Utilities, Janitorial Services
	 	 	9	 
	9.	 	Alterations and Improvements
	 	 	9	 
	10.	 	Trade Fixtures and Other Personal Property
	 	 	10	 
	11.	 	Signs and Advertising
	 	 	11	 
	12.	 	Landlord’s Right of Entry
	 	 	11	 
	13.	 	Casualty Damage
	 	 	12	 
	14.	 	Condemnation
	 	 	13	 
	15.	 	No Abatement of Rent
	 	 	15	 
	16.	 	Transfers by Tenant
	 	 	15	 
	17.	 	Transfers by Landlord
	 	 	16	 
	18.	 	Subordination
	 	 	16	 
	19.	 	Estoppel Certificates; Financial Statements
	 	 	17	 
	20.	 	Events of Default by Tenant
	 	 	17	 
	21.	 	Landlord’s Remedies
	 	 	18	 
	22.	 	Landlord’s Default
	 	 	19	 
	23.	 	Tenant’s Remedies
	 	 	19	 
	24.	 	Tenant’s Indemnification Obligations
	 	 	20	 
	25.	 	Landlord’s Indemnification Obligations
	 	 	21	 
	26.	 	Protection Against Liens
	 	 	21	 
	27.	 	Holding Over
	 	 	22	 
	28.	 	Attorneys’ Fees
	 	 	22	 
	29.	 	Waiver
	 	 	22	 
	30.	 	Leasing Commissions
	 	 	23	 
	31.	 	Notices
	 	 	23	 
	32.	 	Waiver of Security Interest
	 	 	23	 
	33.	 	Landlord’s Environmental Representations and Warranties
	 	 	23	 
	34.	 	Acquisition Closing and Contingency Periods
	 	 	24	 
	35.	 	Subdivision of Airpark Parcel
	 	 	24	 
	36.	 	Miscellaneous
	 	 	24	 





 








 





LEASE AGREEMENT




     THIS LEASE AGREEMENT (the “Lease”), made and entered into as of August 24, 2009, by and
between SOLOMON AIRPARK, LLC, a Tennessee limited liability company (“Landlord”) and EMDEON
BUSINESS SERVICES LLC, a Delaware limited liability company (“Tenant”),



WITNESSETH:




1. Lease of Property.




     (a) Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, (i) the tract of
real property described on Exhibit A attached hereto, including and subject to all
improvements thereto, all rights, privileges, easements, servitude, right-of-ways, and
appurtenances belonging or appurtenant thereto (the “Land”) and (ii) the Shell Building and the
Land Sitework (the Building, the Land Sitework and the Land being collectively referred to herein
as the “Property”). The Land is part of the approximately twenty-one (21) acre parcel of land
described on Exhibit B attached hereto (the “Airpark Parcel”)



     (b) Landlord agrees to construct the Shell Building and the Land Sitework in accordance with
the Construction Agreement attached hereto as Exhibit C (the “Construction Agreement”) and
made a part hereof for all purposes. Landlord agrees to commence construction of the Shell
Building and the Land Sitework following the closing (the “Acquisition Closing”) of Landlord’s
acquisition of the Airpark Parcel and to complete such construction in accordance with the
Construction Agreement.



     (c) Landlord hereby covenants that Tenant shall peaceably and quietly hold and enjoy the
Property throughout the Term (as hereinafter defined) on and subject to all of the provisions and
conditions of this Lease; and, subject to the performance by Landlord of its obligations under the
Construction Agreement, Tenant shall accept the Property from Landlord on the Completion Date (as
defined in the Construction Agreement).



     (d) Landlord represents and warrants that it has the full power and authority to execute this
Lease and that, following the Acquisition Closing, it will own the Land in fee simple and will
grant the estate demised herein, subject only to the liens and encumbrances described in
Exhibit F (collectively, the “Permitted Encumbrances”).



     (e) As long as Tenant is entitled to possession of the Property, Tenant shall have the
exclusive right to use any parking areas, driveways, sidewalks, and other site improvements on the
Property as they may exist from time to time, subject to the Permitted Encumbrances.



     (f) Landlord acknowledges and agrees that prior to the date hereof, Landlord has delivered to
Tenant true and complete copies of any surveys, title policies (including copies of the Permitted
Encumbrances) and environmental reports in its possession.



     (g) Ingress and egress to the Land shall be provided to Airpark Center East substantially as
outlined in the site plan attached hereto as Exhibit G.



 








 





     (h) Landlord and Tenant acknowledge that Tenant, Landlord, the Land and the Airpark Parcel are
subject to the terms and conditions of the Declaration of Covenants, Conditions, Restrictions,
Reservations and Easements for Airpark East, of record as instrument 20011115-0125662, Register’s
Office of Davidson County, Tennessee, as amended by the First Amendment to Declaration of
Covenants, Conditions, Restrictions, Reservations and Easements for Airpark East, of record as
instrument 20080109-0002825, Register’s Office of Davidson County, Tennessee (as amended, the
“Declaration”). Landlord agrees that, except as Landlord may be required by the terms of the
Declaration, in no event shall Landlord agree to any amendment or modification to the Declaration,
or consent to any matter under the Declaration, that could adversely affect the rights, or increase
the obligations, of Tenant hereunder, including, without limitation, any action that (i) grants any
easement that could interfere with the operations of Tenant, or (ii) grants any access easements or
other rights of ingress or egress to third parties onto or through the Property. Landlord agrees
to (x) promptly provide Tenant with copies of any notices that Landlord may give or receive
pursuant to the Declaration, and (y) cast any votes as a member of the Association (as defined in
the Declaration) with respect to the Property, as directed by Tenant. Landlord represents and
warrants that it has or will receive all necessary approvals required pursuant to the Declaration
in order to construct the improvements described in the Construction Plans (as defined in the
Construction Agreement).



     (i) Subject to Landlord’s rights to subdivide the Airpark Parcel as described in Section 35
below, Landlord shall not amend, modify or terminate the Permitted Encumbrances (other than the
Declaration), or allow any new encumbrances with respect to the Property to be created, without the
prior written consent of Tenant.



2. Term.




     (a) The term of this Lease (the “Initial Term”) shall begin on the Commencement Date and end
on the last day of the one hundred eightieth (180th) full calendar month following the Rent
Commencement Date. Thus, unless the Commencement Date falls on the first day of a calendar month,
the Initial Term will also include the initial partial calendar month immediately following the
Commencement Date.



     (b) The “Commencement Date” shall be the earlier to occur of:




     (1) One Hundred and Fifty (150) days from the Completion Date, or




     (2) the date on which Tenant first begins to occupy the Building for the conduct of
its business (excluding occupancy for the sole purpose of constructing the Tenant Finish or
installing Tenant’s furniture, fixtures, workstations and equipment).



     (c) On the Commencement Date, Tenant shall execute a written agreement to confirm the actual
calendar dates on which the Commencement Date and the Rent Commencement Date (as defined in Section
3 below) occur. Tenant shall take possession of the Property on the Commencement Date and
surrender the Property to Landlord at the expiration of the Term or earlier termination of this
Lease free of waste and in as good a condition as on the Commencement Date except for reasonable
wear and tear, casualty, condemnation and repairs that are Landlord’s responsibility under this
Lease.



2








 





     (d) Provided Tenant is not then in default hereunder beyond applicable periods of grace and/or
notice and cure, Tenant may at its option renew this Lease for two (2) successive five (5) year
periods (each a “Renewal Term”; and if so exercised by Tenant, collectively with the Initial Term,
the “Term”)) commencing on the first day after the Initial Term or the then-previous Renewal Term,
as applicable, upon all terms, conditions, and obligations set forth herein. Tenant shall provide
Landlord with notice at least twelve (12) months before the expiration of the Initial Term or the
then-previous renewal term, as applicable, if it desires to exercise any of said options.



     (e) Notwithstanding the foregoing, Tenant shall be entitled to enter the Property prior to the
Commencement Date in order to construct and install the Tenant Finish in accordance with the terms
of the Construction Agreement.


3. Rent.Commencing on the Rent Commencement Date and continuing throughout the Term of this
Lease, Tenant shall pay rent to Landlord in accordance with the following provisions:




     (a) Tenant shall pay minimum annual rent (the “Minimum Rent”) in monthly installments in
advance on or before the first day of each calendar month during the Initial Term and the Renewal
Terms in the amounts reflected in Exhibit D hereto (as the same may be adjusted pursuant to
the Construction Agreement). Landlord reserves the right to apply any partial rental payment to
the full amount due without waiving its right to collect the balance. Landlord’s acceptance of any
partial rental payments in no way relieves Tenant of its obligation to pay rent in full.



     (b) The installments of Minimum Rent for any initial partial calendar month shall be prorated
based on actual days elapsed and shall be paid in advance on the Rent Commencement Date.



     (c) The “Rent Commencement Date” shall be thirty (30) days following the Commencement Date.



     (d) Except as expressly provided to the contrary in this Lease or in the Construction
Agreement, installments of Minimum Rent shall be payable without notice, demand, reduction, setoff,
or other defense. Installments of Minimum Rent and payments of other sums owing to Landlord
pursuant to this Lease shall be made to Landlord at 4539 Trousdale Drive, Nashville, TN 37204,
Attn: Gregory G. Turner, or at whatever other account or address that Landlord may designate from
time to time by written notice to Tenant. Upon exercise by Tenant of its rights set forth in
Section 17 of the Construction Agreement, Tenant shall be entitled to exercise the offset rights
described therein.



     (e) From and after the Rent Commencement Date and during the Term of this Lease, Tenant shall
pay all costs, charges, expenses, taxes, assessments and insurance premiums that are required to be
paid by Tenant hereunder, which shall be deemed, for the purposes of securing the collection
thereof, to be additional rent due and owing hereunder (“Additional Rent”). Additional Rent shall
be paid directly to the party(s) owed such amounts unless otherwise provided in this Lease.



3









 





     (f) If any installment of Minimum Rent or Additional Rent, or any other sum due and payable
pursuant to this Lease, remains unpaid for more than five (5) days after Tenant receives written
notice from Landlord that such amount is past due, Tenant shall pay Landlord a late payment charge
equal to the greater of (i) Fifty and No/100 Dollars ($50.00), or (ii) five percent (5%) of the
unpaid installment or other payment. The late payment charge is intended to compensate Landlord
for administrative expenses associated with responding to late payment, and shall not be considered
liquidated damages or interest. All rent and other sums of whatever nature owed by Tenant to
Landlord under this Lease that remain unpaid for more than ten (10) days after Tenant receives
written notice from Landlord that such amount is past due shall bear interest from the date due
until paid at the lesser of (y) four percent (4%) in excess of the prime rate of interest reported
in The Wall Street Journal (or its successors) in effect from time to time, or (z) the
maximum interest rate per annum allowed by law.



4. Use of Building; Compliance with Legal Requirements.




     (a) Tenant shall use the Building for general office and data center uses and for no other
purposes. Tenant shall not commit or allow waste to be committed in the Building or elsewhere on
the Property, and shall not do or allow to be done in the Building or elsewhere on the Property
anything that shall constitute a nuisance or detract in any way from the reputation of the Property
as a first-class real estate development. Tenant shall allow no noxious or offensive odors, fumes,
gases, smoke, dust, steam or vapors, or any loud or disturbing noise or vibrations to originate in
or be emitted from the Building. Tenant shall comply with all laws, ordinances, and regulations of
any governmental authority relating to Tenant’s use or occupancy of the Building, with the
reasonable requirements of insurance underwriters or rating bureaus applicable to the Property, and
with the following requirements:



     (b) Tenant may use and store office equipment and supplies that contain small quantities or
low concentrations of Hazardous Materials so long as they are properly used and stored within the
Building, properly disposed of by Tenant at a location other than the Property, and do not require
any governmental license or permit. Except as permitted in the preceding sentence, no use,
generation, storage, treatment, transportation, or disposal of any Hazardous Material shall occur
or be permitted to occur in connection with Tenant’s use and occupancy of the Building or any other
portion of the Property. “Hazardous Material” shall mean any toxic or hazardous waste, material,
or substance or any other substance that is prohibited, limited, or regulated as a health or
environmental hazard by any governmental or quasi-governmental authority, or that even if not so
regulated, could reasonably be expected to or does pose a hazard to the environment or to the
health and safety of the occupants of the Building or others.



     (c) No portion of the Building or the Property shall be used or occupied for anything that is
unusually hazardous on account of fire or other risks, without Landlord’s prior written consent and
evidence that such use or occupancy is covered under Tenant’s insurance pursuant to Section 6
below.



     (d) Tenant shall substantially comply with all requirements of the Americans with Disabilities
Act and implementing regulations applicable to its use and occupancy of the Building other than
requirements relating solely to the design and construction of the Shell Building, the compliance
of which shall be the sole responsibility of Landlord, including,



4









 







without limitation, the physical structure of the roof, foundation, stairwells, elevators,
doorways and exterior walls of the Shell Building.



     (e) Tenant shall ensure that its agents, employees, contractors and invitees comply with this
Section 4 and with the Building Rules attached hereto as Exhibit E. In the event of any
conflict with the Building Rules, the provisions in the main body of this Lease shall control.



5. Taxes, Assessments and Association Fees.




     (a) Except as set forth herein, Tenant shall pay as Additional Rent prior to delinquency:




     (1) all taxes and governmental assessments which may be levied upon or assessed against
the Property during the Term;




     (2) all taxes and governmental assessments of every kind and nature whatsoever arising
in any way from the use, occupancy or possession of the Property during the Term;




     (3) all taxes levied upon or assessed against Tenant’s personal property situated in
the Building (“Tenant’s Property”);




     (4) all sales and similar taxes (if any) that may be levied or assessed against the
Rent; and




     (5) all dues and assessments assessed against the Property by the Association pursuant
to the Declaration (“Association Fees”).


To that end, Landlord shall not be required, except as set forth herein, to pay any taxes,
governmental assessments or Association Fees whatsoever which relate to or may be assessed against
this Lease, the Rent and other amounts due hereunder, the Property or Tenant’s Property; provided,
however, any taxes, governmental assessments or Association Fees which may be levied or assessed
against the Property for a period that includes the Commencement Date or the date on which the Term
expires shall be prorated between Landlord and Tenant as of such date; provided further that if the
Property has not been subdivided from the remainder of the Airpark Parcel, then the allocation
between the Property and the remainder of the Airpark Parcel for Association Fees and taxes
relating to the Land shall be based on acreage and any tax attributable to improvements located
solely on the Property shall be allocated to the Property. Landlord agrees to provide to Tenant,
within ten (10) Business Days after its receipt thereof, any tax bills, invoices and other legal or
governmental notices relating to the Property that Landlord receives. Notwithstanding any terms of
this Lease to the contrary, nothing contained in this Section 5 or elsewhere in this Lease shall
obligate Tenant to pay (i) any income, profit, franchise, excise or similar taxes that may be
imposed upon or assessed against Landlord with respect to the Property, the Rent or income derived
from this Lease, under any law now in force or hereafter enacted, or (ii) to pay any inheritance,
estate, succession, gift or any form of property transfer tax or indebtedness tax which may be
assessed or levied against Landlord or any mortgagee of Landlord (excluding any real estate
assessments based on value after a transfer to a third party).




5









 








     (b) Upon request by Landlord, Tenant shall provide Landlord with copies of all paid tax
receipts relating to the Property. Tenant may, at its option, contest in good faith and by
appropriate and timely legal proceedings any tax, assessment or Association Fees relating to the
Property; provided, however, Tenant shall indemnify and hold Landlord harmless from any loss or
damage resulting from any such contest, and all expenses of the same (including, without
limitation, all reasonable attorneys’ fees and court and other costs) shall be paid solely by
Tenant. Landlord shall, at the request of Tenant, execute or join in the execution of any
instruments or documents necessary in connection with such contest or proceedings, but Landlord
shall incur no cost or obligation thereby.



6. Insurance Coverage; Waiver of Subrogation.




     (a) Tenant, at its expense and as Additional Rent hereunder, shall throughout the Term of this
Lease and any extension or renewal thereof, keep the Shell Building and the Tenant Finish insured
with (i) “Special Form Causes of Loss” coverage (as such term is used in the insurance industry),
at least as broad as the most current ISO Special Cause of Loss Form, including coverage for glass
breakage, vandalism and malicious mischief, and builder’s risk (if the improvements on the Land are
to be substantially refurbished or rebuilt pursuant to the terms of this Lease) for one hundred
percent (100%) of the insurable replacement value of the Shell Building and Tenant Finish with no
co-insurance penalty, with any deductible in excess of One Hundred Thousand and No/100 Dollars
($100,000.00) to be approved by Landlord (provided that deductibles related to insurance coverage
for earthquakes, windstorms and floods may exceed One Hundred Thousand and No/100 Dollars
($100,000.00) at Tenant’s discretion), and (ii) coverage for “Demolition and Increased Cost of
Construction” resulting from enforcement of any law or ordinance with limits of not less than Ten
Million and No/100 Dollars ($10,000,000).



     (b) Tenant shall maintain throughout the Term of this Lease and any extension or renewal
thereof, at its own expense and as Additional Rent, commercial general liability insurance covering
the Property at least as broad as the most commonly available ISO Commercial General Liability
policy form (occurrence basis) covering bodily injury, property damage and personal and advertising
injury, for the joint benefit of and insuring Tenant and Landlord, with limits of not less than One
Million Dollars ($1,000,000.00) per occurrence, with a general aggregate of not less than Two
Million Dollars ($2,000,000.00) and a “following form” umbrella liability policy or excess
liability policy in an amount of not less than Three Million Dollars ($3,000,000.00) per
occurrence, with any deductible or self-insured retention in excess of Three Hundred Fifty Thousand
Dollars ($350,000.00) to be approved by Landlord.



     (c) Tenant shall maintain throughout the Term of this Lease and any extension or renewal
thereof, at its own expense, business interruption insurance covering risk of loss due to the
occurrence of any of the hazards insured against under Tenant’s “all risk” coverage insurance and
providing coverage in an amount sufficient to permit the payment of Rent, taxes, insurance and
operating expenses payable hereunder for a period (in such case) of not less than twelve (12)
months.



     (d) Tenant shall maintain throughout the Term of this Lease and any extension or renewal
thereof, at its own expense, all-risk property insurance on all personal property of Tenant located
in on the Property for the full replacement value thereof (“Tenant’s Contents



6









 







Policy”). Such policy shall contain an agreed amount endorsement in lieu of a co-insurance
clause.



     (e) All insurance companies providing the coverage required under this Section 6 shall be
selected by Tenant, shall be rated A minus (A-) or better by Best’s Insurance Rating Service (or
equivalent rating service if not available) and shall be licensed to write insurance policies in
the state in which the Land is located. A temporary (not exceeding 90 days) downgrade in an
insurance company’s rating below A minus shall not disqualify such insurance company. Tenant shall
provide Landlord with copies of all policies or certificates of such coverage (using ACORD 28 for
property insurance) for the insurance coverages referenced in this Section 6 and all commercial
general liability and umbrella liability or excess liability policies shall name Landlord (and if
Landlord is either a general or limited partnership, its general partners) and any mortgagee
designated by Landlord by written notice from Landlord to Tenant sent in accordance with the
requirements of this Lease, as additional insured(s) thereunder. Any such coverage for additional
insureds shall be primary and non-contributory with any insurance carried by Landlord or any other
additional insured thereunder. All property insurance policies (except the Tenant’s Contents
Policy) shall name Landlord as a loss payee as Landlord’s interests may appear, and shall provide
that all losses shall be payable as herein provided. All such policies of insurance shall provide
that the amount thereof shall not be reduced and that none of the provisions, agreements or
covenants contained therein shall be modified or canceled by the insuring company or companies
without thirty (30) days prior written notice being given to Landlord. All proceeds of property
and casualty policies shall be paid by check payable to Landlord to be held in trust and disbursed
pursuant to Section 13(d) herein. Such policy or policies of insurance may also cover loss or
damage to Tenant’s Property, and the insurance proceeds applicable to Tenant’s Property shall not
be paid to Landlord or any mortgagee but shall accrue and be payable solely to Tenant. In the
event of a casualty that is covered by insurance Tenant is required to maintain under this Section
6 (or would have been covered if Tenant had maintained such insurance), Tenant shall be responsible
for any deficiency between the replacement cost of the Shell Building and Tenant Finish and the
amount actually paid by the insurance company.



     (f) Each of Landlord and Tenant hereby waives all claims or other rights of recovery against
the other and its agents, employees, and contractors for any loss or damage to any portion of the
Property, or to any personal property or fixtures thereon, by reason of fire or other loss to the
extent such loss is covered by the insurance required under this Section 6 or reimbursed by other
insurance held by such party, regardless of cause or origin, including negligence, gross
negligence, or misconduct of the other party or its agents, employees, or contractors, and
covenants that no insurer shall hold any right of subrogation against such other party. Landlord
and Tenant shall each advise its insurers of the foregoing waiver and such waiver shall be a part
of the respective policies of property and casualty insurance maintained by Landlord and Tenant.



     (g) Landlord shall have the right, exercisable at any time, but not more frequently than once
every five (5) years, by giving written notice to Tenant, to require Tenant to increase the limit
and coverage amount of the Commercial General Liability policy that Tenant is required to maintain
pursuant to this Section 6 by amounts that are equivalent to the increase in the Consumer Price
Index – All Urban Consumers (All Items, 1982-4=100) for the period elapsed since the date of this
Lease, or the last adjustment, as applicable. This subsection (g)



7









 







shall not be enforceable unless, at the time of such adjustment, Tenant’s net worth, as
disclosed in the most recent financial statements delivered to Landlord, is less than One Hundred
Million Dollars ($100,000,000).



7. Maintenance and Repair.




     (a) During the Term hereof, Landlord shall (i) maintain the roof structure and membrane, the
foundation, all structural elements, and the exterior walls of the Shell Building in good repair,
reasonable wear and tear excepted, and (ii) resurface the driveways and parking lots, as reasonably
necessary to maintain such driveways and parking lots in good repair. Landlord shall also be
responsible for any maintenance and repair of the Shell Building and the Land Sitework generally
(including, without limitation, the heating and cooling systems, lighting fixtures, plumbing and
all other utility lines and mechanical systems) during the first three hundred sixty-five (365)
days following the Rent Commencement Date and for the correction of defects in the original design
or construction of the Shell Building, structural or foundation defects and defects in the exterior
skin system or window systems that result from structural or foundation defects.



     (b) Except as set forth in Subsection (a) above and in the Construction Agreement attached as
Exhibit C hereof, Tenant agrees that Landlord shall have no obligation under this Lease to
provide any services or make any repairs or replacements (including the replacement of obsolete
components) to the Building, or any alteration, addition, change, substitution or improvement
thereof or thereto. The terms “repair” and “replacement” include, without limitation, the
replacement of any portions of the Shell Building which have outlived their useful life, as
determined by Landlord in its reasonable discretion, during the Term of this Lease (or any
extension or renewal thereof). Upon the expiration or earlier termination of this Lease, Tenant
shall remain responsible for, and shall pay to Landlord, any cost, charge or expense for which
Tenant is otherwise responsible for hereunder attributable to any period (prorated on a daily
basis) prior to the expiration or earlier termination of this Lease.



     (c) Tenant shall, subject to Subsection (a) above, during the Term of this Lease (i) maintain
the Property clean, free of refuse, and in good order and repair, subject to normal wear and tear
(and subject to provisions hereof relating to condemnation and casualty); (ii) not commit waste or
impair the Property; (iii) keep all waste and drain pipes open within the Building, (iv) provide
for routine professional maintenance and repairs to heating and cooling systems, lighting fixtures
(including replacement of bulbs), plumbing and all other utility lines within the Building, (vi)
professionally maintain the doors, windows, plate glass, exterior lighting, driveways and parking
lots (including sealing and striping, but excluding resurfacing), landscaping and irrigation,
sidewalks, life-safety systems, and all mechanical and electrical equipment and systems in the
Building in good order and repair; and (vii) promptly notify Landlord in writing of any defective
or dangerous condition actually known to an officer of Tenant or any material adverse changes to
the Property, such as material changes in any environmental condition, including the presence of
biocontaminants, such as, without limitation, mold, and promptly undertake reasonable remediation
(and preventative) actions in connection with any such environmental condition originating on the
Property as a result of Tenant’s use and occupancy of the Property. Landlord shall not be liable
for mold-related injuries or illness unless caused by defects in the original design or
construction of the Shell Building. Tenant’s failure to



8









 







notify (to the extent required above) Landlord of such conditions and/or to make the required
corrective repairs (to the extent required above) shall also result in Tenant’s being liable for
the cost to remediate any subsequent damage. Notwithstanding the foregoing maintenance and repair
obligations of Tenant, during the last two (2) years of the Term, the cost of any repair or
replacement in excess of $5,000 (a “Major Repair or Replacement”) shall be amortized on a
straight-line basis over the useful life of such Major Repair and Replacement, and Tenant shall
only be responsible for the portion of such cost that is amortized during the Term and Landlord
shall be responsible for any unamortized balance.



     (d) Subject to Subsection (a) above, Tenant shall inspect and maintain professional
preventative maintenance programs, subject to Landlord’s reasonable approval and in accordance with
all material local, state, or federal regulations, for all major Building systems, including but
not limited to (i) the fire alarm panel and devices, including a contract with a reputable
monitoring company providing round-the-clock monitoring of the fire alarm system (ii) the sprinkler
system including backflow device, (iii) the fire extinguishers, (iv) the emergency lighting system,
and (v) domestic water and irrigation water backflow.



     (e) Landlord agrees that it shall enforce all warranties with respect to the Shell Building
against the providers of such warranties.



8. Compliance, Utilities, Janitorial Services.




     (a) Tenant, at its expense, shall promptly and substantially comply with all material
municipal, county, state, federal and other governmental requirements and regulations pertaining to
the use and occupancy of the Building, whether now in effect or enacted during the Term of this
Lease or any extension or renewal thereof; will procure and maintain in substantial compliance all
permits, licenses and other authorizations required for the use of the Building or any part thereof
then being made by Tenant and for the lawful and proper installation, operation and maintenance by
Tenant of all equipment and appliances necessary or appropriate for the operation and maintenance
of the Property; and shall substantially comply with all Permitted Encumbrances. Notwithstanding
the foregoing, Landlord shall be solely responsible for the original design and construction of the
Shell Building being in compliance with the foregoing requirements, regulations, permits, licenses
and Permitted Encumbrances.



     (b) Tenant shall contract directly for and directly pay all charges for heat, water, gas,
sewage, electricity, telephone, janitorial services, trash removal and other utilities used or
consumed at the Property. Absent Landlord’s gross negligence or willful misconduct, Landlord shall
not be liable for any interruption or failure in the supply of any such utility service to the
Property.



9. Alterations and Improvements.




     (a) Tenant may make alterations, additions, or improvements to the Building or the Property
that do not affect the exterior of the Building and that have a cost expected to be less than or
equal to one hundred thousand dollars ($100,000) per alteration, addition or improvement (not
including the cost of related equipment) without the prior written consent of Landlord. Tenant
shall obtain Landlord’s consent prior to making any alteration, addition, or improvement



9









 







that affects the exterior of the Building or that is expected to have a cost in excess of one
hundred thousand dollars ($100,000) per alteration, addition or improvement (not including the cost
of related equipment), which consent shall not be unreasonably withheld, conditioned, or delayed.



     (b) Tenant shall give Landlord notice of its intent to make alterations, additions, or
improvements to the Building that have a cost expected to exceed $25,000 per alteration, addition
or improvement project at least ten (10) Business Days prior to commencing such work, except in the
event of an emergency, in which case such notice shall be given as soon thereafter as practical.



     (c) In connection with any alterations, additions, or improvements to the Building or the
Property made by Tenant, Tenant shall comply with all reasonable requirements of Landlord relating
to (i) compliance with the Declaration (including obtaining required approvals from the Committee
(as defined in the Declaration)), building codes and other laws, (ii) the protection of the
integrity, condition and proper functioning of the roof, walls, foundations, and other structural
elements of the Building and of the Building’s mechanical, electrical, and plumbing systems and
equipment, (iii) the employment and bonding of contractors, (iv) insurance, (v) the preservation of
the value of the Building and (vi) other related matters as reasonably determined by Landlord. All
alterations, additions or improvements, including without limitation all partitions, walls,
railings, carpeting, floor and wall coverings, and other fixtures (excluding Tenant’s trade, food
service and kitchen fixtures and/or equipment) made by, for, or at the direction of Tenant shall
become the property of Landlord when made, and shall remain upon the Property at the expiration or
earlier termination of this Lease. Notwithstanding anything to the contrary herein, Tenant shall
have the right to access the roof of the Building from time to time for the purposes of installing,
operating and maintaining up to three (3) telecommunication dishes, including, without limitation,
wireless internet and television dishes; provided that Tenant shall not be permitted to do anything
upon the roof of the Building which would void or impair the roof warranty.



     (d) Tenant shall be responsible for the construction of all Tenant Finish, at its sole
expense.


10. Trade Fixtures and Other Personal Property.Any trade fixtures installed in the Building
at Tenant’s expense shall remain Tenant’s personal property, and Tenant shall have the right at any
time during the Term of this Lease to remove such trade fixtures (provided that any damage to the
Building or Property caused by such removal shall promptly be repaired by Tenant, normal wear and
tear, casualty and condemnation excepted). On or before the expiration of the Term or earlier
termination of this Lease, Tenant shall remove all trade fixtures and other personal property of
Tenant from the Building, repair any damage to the Building or Property caused by removal of its
trade fixtures and other personal property (normal wear and tear, casualty and condemnation
excepted), and leave the Building in a broom-clean condition free of waste, refuse, or debris. If
Tenant fails to do so, Landlord may (i) retain, store, or dispose of such trade fixtures and other
personal property however Landlord chooses without liability of any kind to Tenant, (ii) repair any
damage to the Building or Property caused by removal of such trade fixtures and other personal
property, and (iii) clean the Building and properly dispose of all such waste, refuse, or debris;
and all costs and expenses incurred by Landlord in connection with


10









 






the foregoing shall be payable by Tenant to Landlord on written demand. The following property
shall be considered part of the permanent improvements to the Building owned by Landlord, not trade
fixtures of Tenant, and shall not be removed from the Building by Tenant under any circumstances
(except for Tenant’s specialty equipment and fixtures, including, without limitation, computer
servers, generators and paralleling gear, air cooled chillers, UPS system and associated
distribution equipment, chilled water CRAC units, phone equipment and glycol loops, which shall be
considered property of Tenant and may be so removed): (a) HVAC systems, fixtures, or equipment
(except for supplemental data/server room HVAC equipment); (b) lighting fixtures or equipment;
(c) carpeting, other permanent floor coverings, or raised flooring; (d) paneling or other wall
coverings; (e) plumbing fixtures and equipment; and (f) permanent shelving affixed to the Building.




11. Signs and Advertising.




     (a) Tenant shall be permitted to install signage as allowed or required by the City of
Nashville, Tennessee. All such signage shall be at Tenant’s expense except as provided for in the
specifications for construction of the Shell Building as outlined in Exhibit C – Schedule
1. Upon expiration or earlier termination of this Lease, Tenant shall remove all exterior
corporate identification signage at its sole expense. Tenant shall be obligated to repair any
damage to the Property resulting from the installation and removal of such signage, normal wear and
tear, casualty and condemnation excepted.



     (b) Landlord hereby reserves the right to grant an easement in favor of the Association (as
defined in the Declaration) over the area described as “Proposed Sign Easement” on the Site Plan
for the sole purpose of erecting signage identifying the business park of which the Land is a part
and the various owners and tenants located therein; provided that such easement shall require that
any new signage and any changes to existing signage with respect to size or scope be subject to the
approval of Tenant, which approval shall not be unreasonably withheld, conditioned or delayed. In
no event shall Tenant be responsible for the cost and/or maintenance of such signage except by way
of Association Fees.


12.
Landlord’s Right of Entry. Landlord and persons authorized by Landlord shall have the
right to enter the Building at reasonable times and upon reasonable advance notice to Tenant for
the purposes of making inspections or showing the Property to prospective purchasers or lenders of
the Property, but only in the accompaniment of an employee of Tenant. During the last twelve (12)
months of the Term, Landlord and persons authorized by Landlord shall have the right at reasonable
times and upon reasonable notice to show the Property to prospective tenants, but only in the
accompaniment of an employee of Tenant. Notwithstanding any of Landlord’s rights to enter the
Building pursuant to the terms of this Lease, Landlord shall not cause Tenant to in any way violate
any laws, regulations or ordinances intended to protect the rights and privacy of confidential
patient and billing information processed in Tenant’s operations, including those relating to any
and all patient and billing records and the computers and servers that store such records, which at
any time, Tenant shall be able to secure in locked storage units or remove from the Property.





11









 








13. Casualty Damage.




     (a) If, following the Commencement Date, the Building and/or the Property are damaged or
destroyed by fire, flood, tornado or other element, or by any other casualty and such damage or
destruction does not result in a Total Loss (as hereafter defined), this Lease shall continue in
full force and effect and Landlord shall, as promptly as possible without consideration for any
payoff requirements of a Mortgagee (if any), restore, repair or rebuild the Shell Building to
substantially the same condition as existed before the damage or destruction and Tenant shall as
promptly as possible restore, repair or rebuild the Tenant Finish to substantially the same
condition as existed before the damage or destruction, including in each case any improvements or
alterations required due to any changes in building codes or regulations by any governmental body,
county or city agency.



     (b) Notwithstanding the foregoing, should the Property be damaged or destroyed by any of the
foregoing described casualties within the last twenty-four (24) months of the original Term (unless
Tenant has exercised its right to renew this Lease) or of any extended or renewed Term of this
Lease, then Tenant shall have the right, exercisable by written notice to Landlord given within
sixty (60) days after the date of such damage or destruction, to terminate this Lease effective
upon the date of such damage or destruction.



     (c) Should the Property be damaged or destroyed by any of the foregoing described casualties
and the Building is a Total Loss, then Tenant shall have the right, exercisable by written notice
to Landlord given within sixty (60) days after the date of such damage or destruction, to terminate
this Lease effective upon the date of such damage or destruction.



     (d) If Tenant does not elect to terminate this Lease as permitted in Subsection (b) or (c)
above, then Landlord shall reconstruct the Shell Building and Tenant shall reconstruct the Tenant
Finish, each to its condition immediately prior to such damage or destruction; provided that
Landlord acknowledges and agrees that certain aspects of Tenant’s reconstruction of the Tenant
Finish will begin and continue during Landlord’s reconstruction of the Shell Building and the
parties agree to cooperate and use commercially reasonable efforts to facilitate reconstruction and
minimize unreasonable interference in the same manner as the initial construction of the Shell
Building and the Tenant Finish as described in Section 6 of the Construction Agreement. All
proceeds payable by reason of any loss or damage to the Shell Building or any portion thereof, and
insured under any policy of insurance required by Section 6 of this Lease shall be paid to Landlord
for reconstruction or repair, as the case may be, of any damage to or destruction of the Shell
Building, or any portion thereof. All proceeds payable by reason of any loss or damage to the
Tenant Finish or any portion thereof, and insured under any policy of insurance required by Section
6 of this Lease shall be retained by Tenant for reconstruction or repair, as the case may be, of
any damage to or destruction of the Tenant Finish, or any portion thereof. Any excess proceeds of
casualty insurance covering the Shell Building and the Tenant Finish remaining after the completion
of the restoration or reconstruction of both the Shell Building and the Tenant Finish shall be
retained by Landlord free and clear upon completion of any such repair and restoration except as
otherwise specifically provided below in this Section 13. Notwithstanding the foregoing, if
Landlord has not completed the repair and reconstruction of the Shell Building within nine (9)
months after such damage or destruction, then Tenant shall have the right, exercisable by written
notice to Landlord, to terminate this Lease; provided, however, that if at the end of such nine (9)
month period Landlord is diligently engaged in the restoration or reconstruction of the Shell
Building, then Tenant shall not have the right to



12









 







terminate this Lease unless Landlord fails to complete the repair and reconstruction of the
Shell Building within twelve (12) months after the date of such damage or destruction. All rent
payable hereunder shall abate from the date that is nine (9) months after the date such damage or
destruction occurred until Landlord delivers the Shell Building in accordance with the terms of
this Section 13(d).



     (e) If Tenant terminates this Lease as provided in this Section 13, Landlord shall be entitled
to all of the casualty insurance proceeds paid with respect to the Building, but not to the
proceeds of Tenant’s Contents Policy or other insurance carried by Tenant on Tenant’s Property,
including, without limitation, insurance carried by Tenant on Tenant’s personal property, trade
fixtures or any other property that may be removed by Tenant upon termination of this Lease
pursuant to Section 10 above; provided, however, Tenant shall not have the right to terminate this
Lease unless either (1) (x) the damage or destruction of the improvements on the Land was caused by
a peril which was insured against as required by the provisions of Section 6 above; (y) at the time
of such damage and destruction the said insurance policies required to be carried by Tenant were in
the amounts required by Section 6 above and in full force and effect; and (z) Tenant has paid to
Landlord the amount of any deductible or self-insured retention, or (2) the Tenant has paid to
Landlord the amount that would have been paid if the casualty insurance policy required by the
provisions of Section 6 above had been maintained by Tenant.



     (f) If Tenant defaults in its obligation to carry insurance in the amounts required under
Section 6 above, then, prior to Tenant’s termination of this Lease and in addition to the
requirements set forth in the preceding Subsection (e), Tenant shall be obligated to pay toward
said reconstruction or to Landlord the difference between the amount of insurance actually carried
and the amounts required to be carried under Section 6.



     (g) The Building shall be deemed a “Total Loss” if as a result of damage or destruction:




     (1) the Building is rendered untenantable or unsuitable, in Tenant’s reasonable
opinion, for continued use in the normal conduct of Tenant’s business and Landlord has not
provided written assurances to Tenant within thirty (30) days following such damage or
destruction that the Shell Building can be restored or reconstructed to its condition prior
to such damage or destruction within one hundred eighty (180) days following the date of
such damage or destruction; or




     (2) the restoration or reconstruction of the Shell Building is not permitted by then
existing laws or governmental regulations applicable to the restoration or reconstruction of
the improvements on the Land.



14. Condemnation.




     (a) If all or substantially all of the Property is condemned or is sold in lieu of
condemnation, then this Lease shall terminate on the day prior to the date the condemning authority
takes possession. In such case, all condemnation or sale proceeds shall be the exclusive property
of the Landlord, except that Tenant shall be entitled to any portion of such condemnation or sale
proceeds that are attributable to Tenant’s loss of business, relocation costs,



13









 







Tenant’s personal property, trade fixtures and equipment (including any items of property that
Tenant is entitled to remove upon a termination of this Lease pursuant to Section 10 above).



     (b) If less than all of the Property is so condemned or sold (whether or not the Building is
affected) and in Tenant’s reasonable judgment, the Property cannot be restored to an economically
viable condition, including, without limitation, a reduction in the parking available at the
Property to a number that is less than 75 parking spaces, or if the Tenant’s access to the Property
is so condemned or sold and Tenant no longer has reasonably adequate access to the Property, then
Landlord shall either commit within fifteen (15) days that it will promptly replace the parking,
provide new access reasonably satisfactory to Tenant or otherwise restore the Property to an
economically viable condition reasonably satisfactory to Tenant, or Tenant may terminate this Lease
by written notice to Landlord effective on the day prior to the date the condemning authority takes
possession.



     (c) If this Lease is terminated by reason pursuant to the foregoing, then Landlord shall be
entitled to receive the entire award in any such condemnation or sale in lieu thereof, and Tenant
hereby assigns to Landlord all of its right, title and interest in and to all and any part of such
award, provided, however, Tenant shall be entitled to receive any award specifically made to
reimburse Tenant for loss of business, Tenant’s relocation costs, and Tenant’s personal property,
trade fixtures and equipment (including any items of property that Tenant is entitled to remove
upon a termination of this Lease pursuant to Section 10 above).



     (d) If this Lease is not so terminated by Tenant, and without consideration for any
requirements of a Mortgagee of the Property to apply the condemnation award to reduce the Mortgage
debt,, Landlord shall promptly restore or repair the Property and the Tenant Finish (except those
items of Tenant’s Property which Tenant is permitted to remove under the terms of this Lease) to
substantially the same condition as existed immediately prior to such condemnation insofar as is
reasonably possible, and in no event shall such replacement or restoration exceed six (6) months.
To the extent it is not reasonably possible for Landlord to restore or replace the Property to
substantially the same condition as existed immediately prior to such condemnation, the Minimum
Rent shall be adjusted equitably. Notwithstanding the foregoing, if Landlord has not completed the
repair and reconstruction of the Shell Building and Tenant Finish as required by this Section 14(d)
within nine (9) months after such condemnation, Tenant shall have the right, exercisable by written
notice to Landlord, to terminate this Lease; provided, however, that if at the end of such nine (9)
month period Landlord is diligently engaged in the repair and reconstruction of the Shell Building
and the Tenant Finish (to the extent required above), then Tenant shall not have the right to
terminate this Lease unless Landlord fails to complete the repair and reconstruction of the Shell
Building and the Tenant Finish (to the extent required above) within twelve (12) months after the
date of such condemnation or sale. All rent payable hereunder shall abate from the date that is
nine (9) months after the date such condemnation or sale occurred until Landlord delivers the Shell
Building and the Tenant Finish (to the extent required above) in accordance with the terms of this
Section 14(d).



     (e) If the award shall exceed the amount spent or to be spent promptly to effect such
restoration, repair or replacement, such excess shall unconditionally belong to Landlord and shall
be paid to Landlord. Tenant shall not be entitled to, and expressly waives and assigns to



14









 







Landlord, all claims for any compensation for condemnation; provided, however, if Tenant is
permitted by applicable law to maintain a separate action that will not reduce condemnation awards
or proceeds to Landlord, Tenant shall be permitted to pursue such separate action, but only for
loss of business, relocation costs, Tenant’s personal property, trade fixtures and equipment
(including any items of property that Tenant is entitled to remove upon a termination of this Lease
pursuant to Section 10 above).


15.
No Abatement of Rent. Except as set forth in Section 13(d) and 14(d) above, in the event
this Lease is not terminated as provided in Sections 13 and 14 above, the Minimum Rent and other
sums payable hereunder shall continue to be due and payable hereunder during the lesser of (i) the
period of repair or restoration of the Shell Building or (ii) the period of coverage under the
business interruption insurance that Tenant is required to carry pursuant to Section 6.



16. Transfers by Tenant.




     (a) Without the prior written consent of Landlord in each instance, which consent will not be
unreasonably withheld, conditioned or delayed, Tenant shall not do any of the following (as used in
this Section, a “Transfer”):




     (1) assign this Lease or any estate or interest therein, except to an affiliate
controlled by or under common control with Tenant (an “Affiliate”);




     (2) enter into any sublease of the Building for a term that extends beyond the Term of
this Lease.


Permissible reasons for Landlord’s withholding consent include (but are not limited to) the
following: (i) the proposed use of the Building is not permitted by this Lease, would negatively
affect insurance or environmental risks, or would otherwise negatively impact the Property in any
material respect; (ii) the creditworthiness of the proposed transferee is unacceptable to Landlord
in Landlord’s commercially reasonable business judgment; and (iii) the proposed use or occupancy
would require alterations or additions to the structure or exterior of the Building to comply with
applicable laws, ordinances, and regulations that are not being paid for by Tenant or its assignee.
Any attempted Transfer without Landlord’s prior written consent shall be void.




     (b) Except as provided in (a) above, if Tenant requests Landlord’s consent to a Transfer,
Landlord may either approve or disapprove the Transfer in its reasonable discretion. In connection
with each Transfer request by Tenant, Tenant shall obtain and furnish to Landlord all documents,
financial reports, and other information Landlord reasonably requires in order to evaluate the
proposed Transfer. Landlord shall advise Tenant of Landlord’s decision with respect to the
requested Transfer within ten (10) days after receipt of Tenant’s written Transfer request and all
requested supporting materials. If Landlord refuses to consent to a requested Transfer, this Lease
shall nonetheless remain in full force and effect. The consent of Landlord to one requested
Transfer shall never be construed to waive the requirement for Landlord’s consent to other
Transfers, nor shall any consent by Landlord or Transfer by Tenant discharge or release Tenant from
any obligations or liabilities to Landlord.



     (c) If an Event of Default by Tenant occurs after any Transfer, Landlord may, at its option,
collect rent directly from the transferee, and Tenant hereby authorizes any transferee to



15









 




pay rent directly to Landlord at all times after receipt of written notice from Landlord. No
direct collection by Landlord from any transferee shall constitute a novation or release Tenant
from its obligations and liabilities under this Lease.



     (d) Tenant shall provide Landlord a copy of all assignments of this Lease and subleases of all
or any portion of the Building within five (5) business days following execution of such
assignments or subleases.



     (e) Notwithstanding the foregoing, (i) Tenant shall have the right to mortgage or otherwise
collaterally assign all or any part of its leasehold estate hereunder, and (ii) the merger or
consolidation of Tenant with any other entity or the direct or indirect transfer of any stock or
other ownership interests in Tenant shall not be prohibited by this Section 16, and none of the
foregoing events described in this Section 16(e) shall be considered a Transfer. In connection
with such mortgage or collateral assignment, Landlord will cooperate with reasonable requests of
Tenant or Tenant’s lender for Landlord to execute additional documents in order for Tenant and
Tenant’s lender to obtain policies of leasehold title insurance, including, without limitation,
owner’s affidavits and general corporate documentation.


17.
Transfers by Landlord. Landlord shall have the unrestricted right to sell, assign,
mortgage, encumber, or otherwise dispose of all or any part of the Property or any interest
therein. Upon sale or other disposition of the Property to a party who assumes the obligations of
Landlord under this Lease, Landlord shall be released and discharged from obligations and
liabilities thereafter accruing under this Lease, and Tenant shall look solely to Landlord’s
successor for performance of the Lease thereafter. Tenant’s obligations under this Lease shall not
be affected by any sale, assignment, mortgage, encumbrance, or other disposition of the Property by
Landlord, and Tenant shall enter into a mutually acceptable non-disturbance and attornment
agreement with anyone who thereby becomes the successor to Landlord’s interest in this Lease.



18.
Subordination. Landlord and Tenant agree that simultaneous with the Acquisition Closing,
the parties shall enter into a subordination, nondisturbance and attornment agreement with the
Mortgagee that finances Landlord’s acquisition of the Land (on its own behalf and on behalf of any
purchaser at foreclosure) mutually acceptable to the parties thereto and complying with the
requirements set forth in the next succeeding sentence. At the option of any existing or future
Mortgagee, such Lease may at any time during its continuation be made superior or subordinate to
the lien of any one or more mortgages affecting the Property; provided, however, that the foregoing
provisions with respect to such subordination shall not be effective unless such Mortgagee shall
execute with Tenant a non-disturbance and attornment agreement whereby such Mortgagee (on its own
behalf and on behalf of any purchaser at foreclosure) agrees (a) to recognize and honor this Lease
and Tenant’s rights hereunder, (b) to not to disturb Tenant’s possession of the Premises or
otherwise interfere with or disturb any of Tenant’s rights under this Lease, and (c) that all
insurance proceeds and condemnation awards shall be applied as set forth in this Lease; provided
that if Tenant has terminated this Lease pursuant to a right to do so, any insurance proceeds or
condemnation awards payable to Landlord in accordance with the terms of this Lease may be used to
pay down Landlord’s debt to such Mortgagee.


16








 




     If a Mortgagee or any other person acquires title to the Property pursuant to the exercise of
any remedy provided for in a Mortgage granted by Landlord, Tenant covenants and agrees to attorn to
Mortgagee or such person as its new Landlord, and the Lease shall continue in full force and effect
as a direct lease between Tenant and such Mortgagee or such other person upon all terms, covenants,
conditions and agreements set forth in the Lease. However, in no event shall assignee or such
person be (i) bound by any payment of rent made by Tenant to the Landlord for more than one (1)
month in advance; or (ii) bound by any amendment or modification or termination of the Lease
affecting the interest of Mortgagee made without the written consent of Mortgagee after notice of
such Mortgagee’s Mortgage is delivered to Tenant; or (iii) liable for any act or omission of any
prior landlord (including Landlord) that is not continuing; or (iv) liable for any offsets, credits
or other claims against rentals for any prior periods and/or against any other party or landlord
(including Landlord). Tenant agrees to execute all tenant estoppel certificates and attornment
agreements as Mortgagee shall reasonably require.


19. Estoppel Certificates; Financial Statements.


     (a) Within ten (10) days after a written request by Landlord, Tenant shall deliver an estoppel
certificate in such form as is reasonably requested by Landlord certifying any facts that are then
true with respect to this Lease, including without limitation that this Lease is in full force and
effect, that no default exists on the part of Landlord or Tenant, that Tenant is in possession,
that Tenant has commenced payment of rent, and that Tenant claims no defenses or offsets with
respect to payment of rent under this Lease. Likewise, within ten (10) days after a written
request by Tenant, Landlord shall deliver to Tenant an estoppel certificate covering such matters
of fact with respect to Landlord’s obligations under the Lease as are reasonably requested by
Tenant.


     (b) Not later than July 1 of every year during the Term, Tenant shall furnish its financial
statements for the previous calendar year to Landlord. If such financial statements are audited,
then Tenant shall furnish such audited financial statements to Landlord.


20.
Events of Default by Tenant. Each of the following constitutes an Event of Default by
Tenant (herein so called):



     (a) Tenant fails or refuses to pay any installment of Minimum Rent or any other sum payable
under this Lease when due, and the failure or refusal continues for at least ten (10) days
after written notice from Landlord and an opportunity to cure the delinquency; provided, that
if Landlord has properly given such notice two (2) times in any twelve (12) consecutive month
period, then no further notice shall be required.



     (b) Tenant fails or refuses to comply with any provision of this Lease not requiring the
payment of money, and the failure or refusal continues for at least thirty (30) days after written
notice from Landlord; provided, however, if any such failure by Tenant to comply with such
provision cannot be corrected by commercially reasonable efforts within such 30-day period solely
as a result of nonfinancial circumstances, and if Tenant has commenced substantial corrective
actions within such 30-day period and is diligently pursuing such corrective actions, such 30-day
period shall be extended for such additional time as is reasonably necessary to allow completion of
actions to correct Tenant’s noncompliance.



17








 




     (c) Tenant’s leasehold estate is taken on execution or other process of law in any action
against Tenant.


     (d) Tenant files a petition under any chapter of the United States Bankruptcy Code, as
amended, or under any similar law or statute of the United States or any state, or a petition is
filed against Tenant under any such statute and not dismissed with prejudice within sixty (60) days
of filing, or a receiver or trustee is appointed for Tenant’s leasehold estate or for any
substantial part of the assets of Tenant and such appointment is not dismissed with prejudice
within sixty (60) days, or Tenant makes an assignment for the benefit of creditors.


21.
Landlord’s Remedies. If an Event of Default by Tenant occurs, Landlord shall be entitled
then or at any time thereafter to do any one or more of the following at Landlord’s option:


     (a) Enter the Building if need be, and take whatever curative actions are necessary to rectify
Tenant’s noncompliance with this Lease; and in that event Tenant shall reimburse Landlord on
written demand for any reasonable expenditures by Landlord to effect compliance with Tenant’s
obligations under this Lease.


     (b) Terminate this Lease, in which event Tenant shall immediately surrender possession of the
Property to Landlord, or without terminating this Lease, terminate Tenant’s right to possession of
the Building; and in either case, Landlord may re-enter and take possession of the Building, evict
Tenant and all parties then in occupancy or possession, and if permitted under applicable law,
change the locks on the doors of the Building without making keys to the changed locks available to
Tenant.


     (c) If Landlord has terminated this Lease as a result of the occurrence of an Event of
Default, Landlord may declare due and payable immediately an amount determined as follows: (x) the
entire amount of Base Rent which would have become due and payable during the remaining Lease Term,
discounted to present value by using a discount factor equal to the yield on U.S. Treasury
securities having a remaining maturity closest to the remaining Lease Term (the “Discount Rate”),
minus (y) the market rental value of the Property for the remaining Lease Term, based on Landlord’s
reasonable determination of future rental value of the Property for all or part of the remaining
Lease Term, discounted to present value by using the Discount Rate. In
determining the market rental value of the Property for the remaining Lease Term, the parties
hereby agree that, at the time Landlord seeks to enforce this remedy, all relevant factors should
be considered, including, but not limited to, (i) the then current market conditions in the general
area in which the Property is located, (ii) the net effective rental rates then being obtained by
landlords for similar type buildings in the general area in which the Property is located (taking
into account reasonable remodeling costs, lease commissions, allowances and inducements),
(iii) current levels of new construction that will be completed during the remainder of the Term
and how this construction will likely affect vacancy rates and rental rates and (iv) inflation.
Such payment shall not constitute a penalty or forfeiture but shall constitute liquidated damages
for Tenant’s failure to comply with the terms and provisions of this Lease (Landlord and Tenant
agreeing that Landlord’s exact damages in such event are impossible to ascertain and that the
amount set forth above is a reasonable estimate thereof). The term “remaining Lease Term” as used
in this subsection shall mean the period which otherwise would have (but for the 


18








 







termination of
this Lease) constituted the balance of the Lease Term from the date of termination of this Lease,
but excluding any extensions or renewals thereof.



     (d) If Landlord has not terminated this Lease (whether or not Landlord has terminated Tenant’s
right to possession of the Property or actually retaken possession), recover (in one or more suits
from time to time or at any time before or after the end of the Term) all Minimum Rent, Additional
Rent, and other sums then owing and unpaid under this Lease together with all reasonable costs, if
any, incurred in reletting the Property (including remodeling, lease commission, allowance,
inducement, and other costs, which costs will be equitably prorated if the new lease extends beyond
the Term of this Lease), less all rent, if any, actually received from any reletting of the
Property during the remainder of the Term. Landlord shall have the right following an Event of
Default by Tenant to relet the Property on Tenant’s account without terminating the Lease, any such
reletting to be on such terms as Landlord considers reasonable under the circumstances.



     (e) Recover all reasonable costs of retaking possession of the Building and any other damages
incidental to the Event of Default by Tenant.



     (f) Exercise any and all other remedies available to Landlord at law or in equity, including
injunctive relief of all varieties.



     If Landlord elects to retake possession of the Building without terminating this Lease, it may
nonetheless at any subsequent time elect to terminate this Lease and exercise the remedies provided
above on termination of the Lease. Nothing done by Landlord or its agents shall be considered an
acceptance of any attempted surrender of the Building unless Landlord specifically so agrees in
writing. No re-entry or taking of possession of the Building by Landlord shall be considered an
election by Landlord to terminate this Lease unless Landlord gives Tenant written notice of
termination. Nothing herein shall be deemed to reduce the duty of Landlord to mitigate its damages
as required by law.


22.
Landlord’s Default. It shall be an Event of Default by Landlord (herein so called) only
if Landlord fails to comply with any provision of this Lease and the failure continues for at least
thirty (30) days after
written notice from Tenant to Landlord (with a copy to Landlord’s mortgagees if Tenant has been
notified in writing of the identities and addresses of such mortgagees); provided, however, if any
failure by Landlord to comply with this Lease cannot be corrected within such 30-day period solely
as a result of nonfinancial circumstances outside of the control of Landlord, and if substantial
corrective actions have commenced within such 30-day period and are being diligently pursued, such
30-day period shall be extended for such additional time as is reasonably necessary to allow
completion of actions to correct Landlord’s noncompliance.



23.
Tenant’s Remedies. Except as otherwise provided in this Lease, in the Event of Default
by Landlord, Tenant shall be entitled to any remedies available at law or in equity.
Notwithstanding anything in this Lease to the Landlord shall never be liable in the Event of
Default by Landlord under any provision of this Lease for any loss of business or profits of Tenant
or other consequential damages or for punitive or special damages of any kind. None of Landlord’s
officers, employees, agents, directors, shareholders, or partners shall ever have any


19








 




liability to
Tenant under or in connection with this Lease. Tenant agrees to look solely to Landlord’s interest
in the Property for the recovery of any judgment against Landlord, and Landlord shall never be
personally liable for any judgment. In no event shall the foregoing provisions be deemed to limit
the rights and remedies granted to Tenant pursuant to Sections 2 and 17 of the Construction
Agreement.



24.
Tenant’s Indemnification Obligations. Tenant shall indemnify and hold Landlord and its
officers, employees, agents, directors, shareholders, and partners harmless against any loss,
liability, damage, fine or other governmental penalty, cost, or expense (including reasonable
attorneys’ fees and costs of litigation), or any claim therefor, resulting from:


     (a) Tenant’s noncompliance with or violation of any law, ordinance, or other governmental
regulation applicable to Tenant or its use and occupancy of the Building;



     (b) any work or thing done by Tenant, or its agent, employee or contractor in respect of
construction of, in, or to the Building or any part of the improvements now or hereafter
constructed on the Property;



     (c) any use, possession, occupation, operation, maintenance or management of the Building or
any part thereof by Tenant or its agent, employee or contractor;



     (d) any failure by Tenant, or its agent, employee or contractor, to, or to properly use,
possess, occupy, operate, maintain or manage the Building or any part thereof;



     (e) the use, generation, storage, treatment, or transportation, or the disposal or other
release into the environment, of any Hazardous Material by Tenant or its employees, agents, or
contractors or as the result of Tenant’s use and occupancy of the Building; provided, however, that
Tenant shall in no event be liable for or have any indemnification obligation for any pre-existing
environmental conditions;



     (f) any negligence on the part of Tenant or any of its agents, contractors, servants,
employees, licensees or invitees;



     (g) except as related to or occurring during the initial construction of the Shell Building,
any accident, injury or damage to any person or property occurring in, on, or about the Property or
any part thereof; or


     (h) any failure on the part of Tenant to perform or comply with any of the covenants,
agreements, terms or conditions contained in this Lease on its part to be performed or complied
with.


Notwithstanding any term of this Lease to the contrary, nothing in this Section 24 or elsewhere in
this Lease shall obligate or require Tenant to indemnify, defend or hold Landlord harmless from and
against any losses, liabilities, damages, costs, expenses, suits, judgments or claims arising from
injury or damage during the Term of this Lease or any extension or renewal thereof to person or
property caused by the willful misconduct or gross negligence of Landlord or any of its agents,
servants, employees or contractors.


20








 




25.
Landlord’s Indemnification Obligations. Landlord shall indemnify and hold Tenant and its
officers, employees, agents, directors, shareholders, and partners harmless against any loss,
liability, damage, fine or other governmental penalty, cost, or expense (including reasonable
attorneys’ fees and costs of litigation), or any claim therefor, resulting from:


     (a) any defects in the design or construction of the Shell Building or the Land Sitework or in
the construction of the Tenant Finish, but only to the extent of warranties from the Shell Building
Architect or the Contractor (as such terms are defined in the Construction Agreement);



     (b) any negligence on the part of Landlord or any of its agents, contractors, servants,
employees, licensees or invitees;



     (c) any failure on the part of Landlord to perform or comply with any of the covenants,
agreements, terms or conditions contained in this Lease on its part to be performed or complied
with; and/or



     (d) any representation of Landlord herein being false in any material respect.



     Notwithstanding any term of this Lease to the contrary, nothing in this Section 25 or
elsewhere in this Lease shall obligate or require Landlord to indemnify, defend or hold Tenant
harmless from and against any losses, liabilities, damages, costs, expenses, suits, judgments or
claims arising from injury or damage during the Term of this Lease or any extension or renewal
thereof to person or property caused by the willful misconduct or gross negligence of Tenant or any
of its agents, servants, employees or contractors.



26. Protection Against Liens.




     (a) Tenant shall do all things necessary to prevent the filing of any mechanics’,
materialmen’s, or other type of lien or claim against Landlord or the Property by, against,
through, or under Tenant or its contractors. If any such lien or claim is filed as a result of
any non-payment by Tenant of its own contractors, Tenant shall either cause the same to be
discharged within thirty (30) days after filing, or if Tenant in its discretion and in good faith
determines that such lien or claim should be contested and if all required consents or approvals of
Landlord’s Mortgagee are obtained, Tenant shall furnish such security as may be necessary to
prevent any foreclosure proceedings against the Property during the pendency of such contest. If
Tenant fails to discharge such lien or claim within such 30-day period or fails to furnish such
security, then Landlord may at its election, in addition to any other right or remedy available to
it, discharge the lien or claim by paying the amount alleged to be due or by giving appropriate
security. If Landlord discharges or secures such lien or claim, then Tenant shall reimburse
Landlord on written demand for all sums paid and all costs and expenses (including reasonable
attorneys’ fees and costs of litigation) so incurred by Landlord.


     (b) Landlord shall do all things necessary to prevent the filing of any mechanics’,
materialmen’s, or other type of lien or claim against Tenant or Tenant’s leasehold estate in the
Property by, against, through, or under Landlord or its contractors. If any such lien or claim is
filed, Landlord shall either cause the same to be discharged within thirty (30) days after filing,
or if Landlord in its discretion and in good faith determines that such lien or claim should be


21








 




contested and if all required consents or approvals of Landlord’s Mortgagee are obtained, Landlord
shall furnish such security as may be necessary to prevent any foreclosure proceedings against
Tenant’s leasehold estate in the Property during the pendency of such contest. If Landlord fails
to discharge such lien or claim within such 30-day period or fails to furnish such security, then
Tenant may at its election, in addition to any other right or remedy available to it, discharge the
lien or claim by paying the amount alleged to be due or by giving appropriate security. If Tenant
discharges or secures such lien or claim, then Landlord shall reimburse Tenant on written demand
for all sums paid and all costs and expenses (including reasonable attorneys’ fees and costs of
litigation) so incurred by Tenant.



27.
Holding Over. If Tenant remains in possession of any part of the Building after the
expiration of the Term of this Lease with Landlord’s written consent, Tenant shall be only a tenant
at will and the monthly installments of Minimum Rent payable during such holdover period shall be
one hundred ten percent (110%) of the monthly installments of Minimum Rent payable immediately
preceding such expiration, and all Additional Rent and other sums payable under this Lease shall
continue to be due and payable. If Tenant remains in possession of any part of the Building after
the expiration of the Term of this Lease without Landlord’s written consent, Tenant shall be only a
tenant at sufferance and the monthly installments of Minimum Rent payable during such holdover
period shall be one hundred fifty percent (150%) of the monthly installments of Minimum Rent
payable immediately preceding such expiration, and all Additional Rent and other sums payable under
this Lease shall continue to be due and payable. The acceptance of any rent or other payments from
Tenant with respect to any holdover period shall not serve to extend the Term or waive any rights
of Landlord, but Landlord may at any time refuse to accept rent or other payments from Tenant, and
may re-enter the Building, evict Tenant and all parties then in occupancy or possession, take
possession of the Building, and if permitted under
applicable law, change the locks on the doors of the Building without making keys to the changed
locks available to Tenant. If Tenant remains in possession of any part of the Building after the
expiration of the Term of this Lease without Landlord’s written consent, Tenant shall indemnify and
hold Landlord harmless against any loss, liability, damage, cost, or expense (including reasonable
attorneys’ fees and costs of litigation), or any claim therefore, related to Tenant’s holding over,
including liabilities to any person to whom Landlord may have leased any part of the Building.



28.
Attorneys’ Fees. If an Event of Default by Tenant or an Event of Default by Landlord
occurs, the prevailing party shall be entitled to recover reasonable attorneys’ fees and any costs
of litigation incurred in exercising and enforcing its rights and remedies under this Lease.



29.
Waiver. The failure of a party to insist upon the strict performance of any provision of
this Lease or to exercise any remedy for an Event of Default shall not be construed as a waiver.
The waiver of any noncompliance with this Lease shall not prevent subsequent similar noncompliance
from being or becoming an event of default. No waiver shall be effective unless expressed in
writing signed by the waiving party. No waiver shall affect any condition other than the one
specified in the waiver and then only for the time and in the manner stated. Landlord’s receipt of
any rent or other sums with knowledge of noncompliance with this Lease by Tenant shall not be
considered a waiver of the noncompliance. No payment by Tenant of a lesser amount than the full
amount then due shall be considered to be other than on account of the earliest amount due. No
endorsement or statement on any check or any letter accompanying


22








 




any check or payment shall be
considered an accord and satisfaction, and Landlord may accept any check or payment without
prejudice to Landlord’s right to recover the balance owing and to pursue any other available
remedies.



30.
Leasing Commissions. Each of Landlord and Tenant represents and warrants to the other
that it has not dealt with anyone claiming any entitlement to any commission in connection with
this leasing transaction except Solomon Development, LLC representing Landlord and Colliers Turley
Martin Tucker representing Tenant (collectively, the “Brokers”), who shall be paid by Landlord.
Each of Landlord and Tenant agrees to indemnify and hold the other harmless against any loss,
liability, damage, cost, or expense (including reasonable attorneys’ fees and costs of litigation),
or any claim therefore, for any leasing or other commissions, fees, charges, or payments resulting
from or arising out of their respective actions in connection with this Lease except as to the
Brokers. Landlord shall indemnify and hold Tenant harmless against payment of any leasing
commission due the Brokers in connection with this Lease.



31.
Notices. Any notice may be given by (a) depositing written notice in the United States
mail, postpaid and certified and addressed to the party at its address under this Lease with return
receipt requested, or (b) delivering written notice in person or by commercial messenger or
overnight private
delivery service to the party at its notification address under this Lease. Written notice
deposited in the mail in the manner described above shall be effective on the date of delivery.
Written notice given in person or by commercial messenger or overnight private delivery in the
manner described above shall be effective as of the time of receipt at the destination address as
evidenced by a receipt signed by an employee of Tenant or Landlord, as the case may be, by any
confirmation of delivery provided by the messenger or delivery service. The notification addresses
of the parties are specified on the signature page(s) of this Lease. Each party shall have the
right to change its address by at least ten (10) days’ prior written notice to the other party.



32.
Waiver of Security Interest. Landlord hereby waives any and all security interests,
liens, and other rights and interests, whether granted by statute or otherwise, in and to any and
all fixtures, furniture, equipment and other personal property of Tenant. Within ten (10) days
after satisfaction of Lease Contingencies (hereinafter defined), Landlord agrees to execute the
Landlord’s Lien Waiver, Access Agreement and Consent attached hereto as Exhibit H with
Tenant’s current lender, and as requested by Tenant from time to time, Landlord agrees to execute a
document in substantially similar form and substance with any other lender of Tenant.



33.
Landlord’s Environmental Representations and Warranties. As an inducement to Tenant’s
execution of this Lease and the covenants set forth herein, Landlord hereby represents and warrants
to Tenant as of the date hereof: (i) Landlord has no actual notice that any portion of the Property
is in violation of any Environmental Laws, (ii) with respect to the Property, Landlord has not
received any written citation, directive, inquiry, notice, order, summons, warning, or other
communication that relates to (a) Hazardous Substances, or (b) any alleged, actual, or potential
violation of or failure to comply with any Environmental Laws.




23








 




34. Acquisition Closing and Contingency Periods.


     (a) This Lease is contingent upon (i) Landlord’s acquisition of the Airpark Parcel subject
only to the Permitted Encumbrances, (ii) Landlord’s receipt of all approvals necessary under the
Declaration with respect to the design and construction of the improvements contemplated by the
Construction Agreement, including, without limitation, approval of the Construction Plans, (iii)
Landlord’s receipt of a recorded waiver and release from the Declarant (as defined in the
Declaration) of the right of repurchase described in Section 9.1 of the Declaration, and (iv)
Tenant and Solomon Builders, Inc. executing a mutually agreeable construction contract for the
Tenant Finish (collectively, the “Lease Contingencies”). Landlord shall use diligent and
commercially reasonable efforts to satisfy the Lease Contingencies.



     (b) Tenant shall have the right to terminate this Lease if the Lease Contingencies have not
been satisfied on or before October 1, 2009. Tenant must exercise such termination right, if at
all, by delivering to Landlord written notice thereof on or before October 15, 2009.



     (c) Landlord shall have the right to terminate this Lease if the Lease Contingencies have not
been satisfied on or before November 15, 2009. Landlord must exercise such termination right, if
at all, by delivering to Tenant written notice thereof on or before November 30, 2009.


35.
Subdivision of Airpark Parcel. Landlord shall have the right, but not the obligation, to
subdivide the Airpark Parcel at any time during the Term. Such subdivision may result in the Land
being a separate parcel from the rest of the Airpark Parcel. In the event that Landlord determines
to subdivide the Airpark Parcel, (a) Landlord may take all actions consistent with such
subdivision, including the creation of access, drainage, or utility easements benefiting or
burdening the Land, (b) Landlord may enter into and record agreements relating to such easements,
and (c) Tenant agrees to cooperate with Landlord’s reasonable requests in connection with such
subdivision and such easements and easement agreements; provided, however, that such subdivision
and such easements and easement agreements shall not materially and adversely affect Tenant’s
rights or obligations under this Lease, its use or occupancy of the Property, or its ingress or
egress to the Property; provided further that Tenant shall not be required to expend any funds in
connection with such subdivision, easements or easement agreements. Landlord shall comply with all
reasonable requests of Tenant and/or any mortgagee of Tenant for information relating to such
subdivision and execute any documentation reasonably necessary to confirm such mortgagee’s
leasehold mortgage. Notwithstanding the foregoing, in no event shall Landlord grant any access
rights through the Property.


36. Miscellaneous.


     (a) If requested by Landlord, Tenant shall furnish appropriate evidence of the valid existence
and good standing of Tenant and the authority of any parties signing this Lease to act for Tenant.
If requested by Tenant, Landlord shall furnish appropriate evidence of the valid existence and good
standing of Landlord and the authority of any parties signing this Lease to act for Landlord.


24








 





     (b) This document embodies the entire contract between the parties, and supersedes all prior
agreements and understandings between the parties related to the Building, including all lease
proposals, letters of intent, and similar documents. All representations, warranties, or
agreements of an inducement nature, if any, are merged with, and stated in this document. This
Lease may be amended only by a written instrument executed by both Landlord and Tenant.



     (c) The relationship created by this Lease is that of landlord and tenant. Landlord and
Tenant are not partners or joint ventures, and neither has any agency powers on behalf of the
other. Except as provided herein or in the Construction Agreement, Tenant is not a beneficiary of
any other contract or agreement relating to the Property to which Landlord may be a party, and
Tenant shall have no right to enforce any such other contract or agreement on behalf of itself,
Landlord, or any other party.



     (d) No consent or approval by Landlord shall be effective unless given in writing signed by
Landlord or its duly authorized representative. Any consent or approval by Landlord shall extend
only to the matter specifically stated in writing.



     (e) Whenever this Lease requires Landlord’s consent to or approval of any item, Landlord shall
not unreasonably withhold, condition or delay such consent or approval.



     (f) The captions appearing in this Lease are included solely for convenience and shall never
be given any effect in construing this Lease.



     (g) This Lease is being executed in multiple counterparts, each of which shall be considered
an original for all purposes.



     (h) If any provision of this Lease is invalid or unenforceable, the remainder of this Lease
shall not be affected. Each separate provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.



     (i) This Lease binds not only Landlord and Tenant, but also their respective heirs, personal
representatives, successors, and assigns (to the extent assignment is permitted by this Lease).



     (j) This Lease is governed by the laws of the state of Tennessee.



     (k) All references to “Business Days” in this Lease shall refer to days that national banks
are open for business in the city where the Property is located. Time is of the essence of this
Lease.



     (l) All references to “Mortgage(s)” in this Lease shall include deeds of trust, deeds to
secure debt, other security instruments. All references to “Mortgagee(s)” in this Lease shall
include trustees, secured parties, and other parties holding any lien, security, or other interest
in the Property pursuant to any mortgage.



     (m) Any liability or obligation of Landlord or Tenant arising during or accruing with respect
to the Term of this Lease shall survive the expiration or earlier termination of this Lease,
including without limitation, obligations and liabilities relating to (i) the final adjustment of



25









 







estimated installments of Additional Rent to actual Additional Rent owed, (ii) the condition of the
Building or the removal of Tenant’s property, and (ii) indemnity and hold harmless provisions of
this Lease.



     (n) Tenant agrees not to record this Lease. Tenant may record a memorandum of this Lease in a
form approved by Landlord in writing prior to recording provided Tenant pays all taxes, recording
fees, or other governmental charges incident to such recording. The memorandum shall not disclose
the rent payable under this Lease and shall expressly provide that it shall be of no further force
or effect after the last day of the Term or on filing by Landlord of an affidavit that this Lease
has expired or been terminated.



     (o) Landlord has delivered a copy of this Lease solely for Tenant’s review, and such delivery
does not constitute an offer to Tenant or an option reserving the Building. This Lease
shall not be effective until a counterpart executed by both Landlord and Tenant is delivered
by Landlord to Tenant.



[Remainder of page intentionally left blank]




26









 








     IN WITNESS WHEREOF, the parties have caused this Lease to be executed pursuant to authority
duly given as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	TENANT:	 	 
	 
	 	 	 	 	 	 
	 	 	EMDEON BUSINESS SERVICES LLC

a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Gregory T. Stevens	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	Executive Vice President, General
Counsel & Secretary 	 	 
	 

	 	 	 	 	 	 
	 

	 	Printed Name:	 	Gregory T. Stevens	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	LANDLORD:	 	 
	 
	 	 	 	 	 	 
	 	 	SOLOMON AIRPARK, LLC, a Tennessee

limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Gregory G. Turner 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	President	 	 
	 

	 	 	 	 	 	 
	 

	 	Printed Name:	 	Gregory G. Turner	 	 
	 

	 	 	 	 	 	 






27









 








EXHIBIT A




Legal Description of the Land



Being a tract of land lying in Nashville, Davidson County, Tennessee, also being part of Lot 3 of
Airpark East, as of record in Instrument Number: 20011120-0127754, at the Register’s Office for
Davidson County, Tennessee, and being more particularly described as follows;



Beginning at an existing iron rod, at the intersection of the southerly right-of-way line of
Couchville Pike, width varies, and the easterly right-of-way line of Reynolds Road, width varies,
said existing iron rod being located at Northing: 648,433.39; Easting: 1,778,865.81; on the State
Plane Coordinate System NAD-83 (2007);



Thence leaving the easterly right-of-way line of Reynolds Road, with the southerly right-of-way
line of Couchville Pike, South 84 deg 46 min 56 sec East, 100.04 feet to an iron rod set, at the
intersection with the westerly right-of-way line of Airpark Center East, width varies;



Thence with leaving the southerly right-of-way line of Couchville Pike, with the westerly
right-of-way line of Airpark Center East, with a curve to the right, along an arc length of 78.12
feet, the central angle of which is 92 deg 17 min 00 sec, the radius of which is 48.50 feet, the
chord of which is South 38 deg 46 min 44 sec East, 69.94 feet to an iron rod set;



Thence South 07 deg 21 min 46 sec West, 8.00 feet, to an iron rod set;



Thence South 11 deg 11 min 32 sec West, 260.30 feet, to an iron rod set;



Thence with a curve to the right, along an arc length of 33.42 feet, the central angle of which is
03 deg 49 min 45 sec, the radius of which is 500.00 feet, the chord of which is South 09 deg 16 min
40 sec West, 33.41 feet to an iron rod set;



Thence South 07 deg 21 min 47 sec West, 260.94 feet to a point;



Thence leaving the westerly right-of-way line of Airpark Center East, with a line through Lot 3 of
Airpark East, as of record in Instrument Number: 20011120-0127754, at the Register’s Office for
Davidson County, Tennessee, also being the property of Duke-Weeks Realty, L.P., as of record in
Instrument Number: 20010614-0062632, at the Register’s Office for Davidson County, Tennessee for
the following two calls;





	 	1)	 	North 82 deg 38 min 13 sec West, 422.99 feet to a point;
	 
	 	2)	 	North 07 deg 21 min 47 sec East, 257.89 feet to a point in the westerly
right-of-way line of Reynolds Road;





Thence with the westerly right-of-way line of Reynolds Road, North 45 deg 04 min 51 sec East, 29.88
feet to an existing iron rod;


Thence North 28 deg 31 min 34 sec East, 83.91 feet to an existing iron rod;


A-1








 




Thence North 05 deg 52 min 33 sec East, 158.92 feet to an existing iron rod;


Thence North 85 deg 36 min 11 sec East, 152.07 feet to an existing iron rod;


Thence North 89 deg 21 min 17 sec East, 50.25 feet to an existing iron rod;


Thence North 51 deg 15 min 31 sec East, 69.28 feet to the POINT OF BEGINNING. Containing 231,225
square feet or 5.308 acres more or less.


Being part of the same property conveyed to Duke-Weeks Realty, L.P., as of record in Instrument
Number: 20010614-0062632, at the Register’s Office for Davidson County, Tennessee.


A-2








 








EXHIBIT B




Legal Description of the Airpark Parcel



Being a tract of land lying in Nashville, Davidson County, Tennessee, also being Lot 3 of Airpark
East, Phase 1-A, as of record in Instrument Number: 20011120-0127754, at the Register’s Office for
Davidson County, Tennessee, and being more particularly described as follows;



Beginning at an existing iron rod at the intersection of the southerly right-of-way line of
Couchville Pike, width varies, and the easterly right-of-way line of Reynolds Road, width varies,
said existing iron rod being located at Northing: 648,433.39; Easting: 1,778,865.81; on the State Plane Coordinate System NAD-83 (2007);


Thence leaving the easterly right-of-way line of Reynolds Road, with the southerly right-of-way
line of Couchville Pike, South 84 deg 46 min 56 sec East, 100.04 feet to an iron rod set, at the
intersection with the westerly right-of- way line of Airpark Center East, width varies;



Thence leaving the southerly right-of-way line of Couchville Pike, with the westerly right-of-way
line of Airpark Center East, with a curve to the right, along an arc length of 78.12, the central
angle of which is 92 deg 17 min 00 sec, the radius of which is 48.50 feet, the chord of which is
South 38 deg 46 min 44 sec East, 69.94 feet to an iron rod set;



Thence South 07 deg 21 min 46 sec West, 8.00 feet to an iron rod set;



Thence South 11 deg 11 min 32 sec West, 260.30 feet to an “X” in concrete;



Thence with a curve to the left, along an arc length of 33.42 feet, the central angle of which is
03 deg 49 min 45 sec, the radius of which is 500.00 feet, the chord of which is South 09 deg 16 min
40 sec West, 33.41 feet to an iron rod set;



Thence South 07 deg 21 min 47 sec West, 658.56 feet to an iron rod set;



Thence with a curve to the left, along an arc length of 66.80 feet, the central angle of which is
03 deg 49 min 39 sec, the radius of which is 1000.00 feet, the chord of which is South 05 deg 26
min 57 sec West, 66.79 feet to an iron rod set;


Thence South 03 deg 32 min 08 sec West, 232.78 feet to an iron rod set;


Thence with a curve to the right, along an arc length of 66.80 feet, the central angle of which is
03 deg 49 min 39 sec, the radius of which is 1000.00 feet, the chord of which is South 05 deg 26
min 58 sec West, 66.79 feet to an iron rod set;


Thence South 07 deg 21 min 47 sec West, 95.59 feet to a pk nail set;


B-1








 







Thence with a curve to the right, along an arc length of 46.20 feet, the central angle of which is
09 deg 48 min 13 sec, the radius of which is 270.00 feet, the chord of which is South 12 deg 15 min
53 sec West, 46.14 feet to a pk nail set;



Thence South 17 deg 16 min 25 sec West, 134.57 feet to a pk nail set;



Thence with a curve to the right, along an arc length of 39.27 feet, the central angle of which is
90 deg 00 min 00 sec, the radius of which is 25.00 feet, the chord of which is South 62 deg 16 min
25 sec West, 35.36 feet to an iron rod set;



Thence North 72 deg 44 min 20 sec West, 10.63 feet to an iron rod set, in the westerly property
line of Fedex Corporate Services, Inc., as of record in Instrument Number: 20080109-0002823, at the
Register’s Office for Davidson County, Tennessee;



Thence leaving the westerly of Airpark Center East, with the easterly property line of Fedex
Corporate Services, Inc., North 07 deg 59 min 20 sec East, 78.83 feet to an existing iron rod;



Thence with the northerly property line of Fedex Corporate Services, Inc., North 83 deg 52 min 47
sec West, 444.91 feet to an existing iron rod;



Thence North 82 deg 44 min 18 sec West, 182.10 feet to an existing iron rod, at a corner common
with M.L. Barrett, Sr. & Rachel S. Barrett, Trustees, as of record in Deed Book 10103, Page 437, at
the Register’s Office for Davidson County, Tennessee;


Thence with the easterly property line of M.L. Barrett, Sr. & Rachel S. Barrett, Trustees, North 07
deg 53 min 51 sec East, 998.58 feet to an iron rod set, in the easterly right-of-way line of
Reynolds Road;



Thence with the easterly right-of-way line of Reynolds Road, North 77 deg 01 min 01 sec East, 74.17
feet to an existing iron rod;



Thence North 45 deg 04 min 51 sec East, 308.92 feet to an existing iron rod;



Thence North 28 deg 31 min 34 sec East, 83.91 feet to an existing iron rod;



Thence North 05 deg 52 min 33 sec East, 158.92 feet to an existing iron rod;



Thence North 85 deg 36 min 11 sec East, 152.07 feet to an existing iron rod;



Thence North 89 deg 21 min 17 sec East, 50.25 feet to an existing iron rod;



Thence North 51 deg 15 min 31 sec East, 69.28 feet to the POINT OF BEGINNING. Containing 925,162
square feet or 21.239 acres more or less.


B-2








 




Being a portion of the same property conveyed to Duke-Weeks Realty, L.P., as of record in
Instrument Number: 20010614-0062632, at the Register’s Office for Davidson County, Tennessee.


B-3








 




EXHIBIT C


Construction Agreement


1. Definitions. All capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Lease. When used in this Agreement, the following terms shall
have the meanings set forth in this Section 1:


     (a) “Actual Construction Cost” shall mean the actual cost to construct the Shell
Building (excluding Tenant Finish) and Land Sitework, pursuant to the Construction Plans and
any changes thereto, including but not limited to (a) site preparation, (b) storm drainage,
(c) site lighting, (d) landscaping and irrigation, (e) paving and striping, (f) utility
connections, (g) construction testing services (h) costs of labor and materials, (i) fees
and other charges payable to the Contractor, (j) fees to governmental authorities for
permits, inspections, and certificates of occupancy, (k) utilities during construction,
(l) performance bonds, and (m) architectural fees. Actual Construction Cost shall
specifically exclude (1) leasing commissions, (2) construction interest and loan fees, (3)
development fees, and (4) construction management other than the Contractor, all of which
shall be borne entirely by Landlord. Landlord agrees and represents that the Actual
Construction Cost shall be equal to the Stipulated Sum, unless such costs are increased or
decreased as a result of Change Orders to the Construction Plans pursuant to Section 11
hereof.


     (b) “ADA” shall mean the Americans with Disabilities Act of 1990, as amended.


     (c) “Building” shall mean the Shell Building and the Tenant Finish.


     (d) “Change Order” means a change order to the Construction Plans or the Tenant Finish
Plans pursuant to Section 11 hereof.


     (e) “Civil Plans” shall mean the civil engineering design and work as prepared by Barge
Cauthen Associates, dated July 31, 2009, which have been approved by the Planning Commission
and approved by both Landlord and Tenant with such further modifications as Landlord and
Tenant may both approve.


     (f) “Completion Date” shall mean the date on which Milestone L1020 (“Building Dried
In”) is achieved, as inspected, verified and documented by the Shell Building Architect.


     (g) “Completion Deadline” shall mean the date on which Milestone L1020 (“Building Dried
In”) is scheduled to be achieved as shown on the Critical Path, as such date shall be
adjusted in accordance with Paragraph 11 herein by reason of Force Majeure Events,
Unforeseen Conditions, Governmental Delays, Settlement Delays, Post Approval Governmental
Requirements, Change Orders requested by Tenant or Tenant Delays. Changes to the Critical
Path pursuant to Section 11(b) below shall not alter the Completion Deadline unless Tenant
expressly consents in writing to an extension of the Completion Deadline.


C-1








 






     (h) “Construction Contract” shall mean (i) the Standard Form of Agreement between the
Owner and Contractor to be executed by and between the Landlord and Contractor where the
basis of payment is a Stipulated Sum (AIA Document A101-2007), the final form of which is
subject to the prior approval of Tenant, which approval shall not be unreasonably withheld,
conditioned or delayed, and (ii) the General Conditions for the Contract for Construction
(AIA Document A201-2007) relating to the construction of the Shell Building and the Land
Sitework.




     (i) “Construction Plans” shall mean (i) the Civil Plans for the construction of the
Land Sitework as prepared by the Civil Engineer, and (ii) the Shell Building Plans.




     (j) “Contractor” shall mean Solomon Builders, Inc.




     (k) “Critical Path” shall mean time schedule for the commencement, phasing and
completion of the Building and Land Sitework. The Critical Path is attached hereto as
Schedule 2.




     (l) “Force Majeure Event” means an act of God, fire, earthquake, flood, explosion,
casualty, war, invasion, insurrection, riot, mob violence, act of terrorism, sabotage, a
general shortage of labor, equipment, materials or supplies in the open market, failure of
transportation, strike, lock out, action of labor unions, condemnation, order of government
or civil or military or naval authorities, unforeseeable subsurface condition, Weather
Delay, or any other cause, whether similar or dissimilar to the foregoing, not within the
reasonable control of the Landlord; provided inadequate funds shall never be considered a
Force Majeure Event. In order for any event described above to be considered a Force
Majeure Event hereunder, Landlord shall be required to give notice to Tenant in accordance
with the terms of the Lease not later than ten (10) Business Days after the commencement of
such event.




     (m) “Governmental Delay” means any delay that is caused by the failure to obtain (i) a
grading permit for the Land Sitework by September 4, 2009, or (ii) a building permit for the
Shell Building by September 18, 2009, in each case from the applicable governmental entity;
provided, however, that in order for any such delay to be considered a
Governmental Delay, (a) Landlord shall be required to give written notice to Tenant not
later than September 18, 2009 (in the case of delay in obtaining the grading permit), or
October 2, 2009 (in the case of delay in obtaining the building permit), and (b) Landlord
must be pursuing the applicable permit with reasonable diligence, and using commercially
reasonable efforts to cause such Governmental Delay to cease.




     (n) “Land Sitework” shall mean the site preparation, storm drainage, site lighting,
landscaping and irrigation, paving and striping, and utility connections with respect to the
Land detailed in the Civil Plans.




     (o) “Lease” shall mean the Lease Agreement between the Landlord and the Tenant to which
this Construction Agreement is attached.



C-2








 






     (p) “Milestone L1020 (‘Building Dried In’)” shall mean the substantial completion of
the steel structure, the roof and the storefront system of the Shell Building in accordance
with the Shell Building Plans.




     (q) “Planning Commission” shall mean the Metropolitan Planning Commission.




     (r) “Post Approval Governmental Requirements” shall mean any requirements of
governmental entities that are imposed after the date of this Agreement and are related to
the construction of the Building Shell and/or the Land Sitework.




     (s) “Settlement Delay” means any delay that is caused by the requirement that the
building pad for the Shell Building settle following completion of the building pad but only
to the extent such delay is greater than fourteen (14) days; provided,
however, that in order for any such delay to be considered a Settlement Delay
Landlord shall be required to give written notice to Tenant not later than twenty-one (21)
days after the building pad site work is completed.




     (t) “Shell Building” shall mean the building shell as described in the Shell Building
Plans.




     (u) “Shell Building Architect” shall mean Hastings Architecture Associates, LLC.




     (v) “Shell Building Plans” shall mean the architectural and structural plans and
specifications prepared by the Shell Building Architect dated July 31, 2009, which have been
approved by both Landlord and Tenant with such modifications as Landlord and Tenant may both
approve.




     (w) “Stipulated Sum” shall mean the sum of Two Million Seven Hundred Thirty-Two
Thousand Seventy-Two dollars ($2,732,072), subject to adjustment by agreement (such
agreement to be granted or withheld in the sole discretion of each applicable party) of the
Landlord, Tenant and Contractor.




     (x) “Tenant Election” shall mean decisions provided to Landlord and Contractor in
writing by the Tenant Representative for the purpose of altering the Construction Plans,
including (i) any Change Order requested by Tenant, and (ii) any Change Order requested by
Landlord and consented to by Tenant.




     (y) “Tenant Delays” shall mean any delay caused by Tenant (or its agents, employees or
contractors) which demonstrably results in a delay in the Critical Path, such as but not
limited to: (a) changes in the Land Sitework, Shell Building Plans or Tenant Finish Plans
requested by Tenant that extends the Critical Path, or (b) any other delay in the completion
of the construction of the Shell Building caused solely by Tenant that affects the Critical
Path. In order for any delay described above to be considered a Tenant Delay, Landlord
shall be required to give written notice thereof to Tenant not later than ten (10) Business
Days after the date such delay begins.



C-3








 






     (z) “Tenant Finish” shall mean the tenant improvements to be constructed by Tenant
within the Shell Building in accordance with the Tenant Finish Plans.




     (aa) “Tenant Finish Architect” shall mean Collaborative Studio, PLLC.




     (bb) “Tenant Finish Engineer” shall mean Power Management Corporation.




     (cc) “Tenant Finish Plans” shall mean (i) plans and specifications prepared by the
Tenant Finish Architect dated July 31, 2009 for the construction of the interior
improvements, and (ii) the plans and specifications prepared by the Tenant Finish Engineer
dated July 31, 2009 for the construction of the mechanical, electrical, and plumbing
systems, which have been approved by both Landlord and Tenant with such modifications as
Landlord and Tenant may both approve; provided, however, that Landlord’s
approval shall not be required except as set forth in Section 11(d).




     (dd) “Tenant Representative” shall mean its Real Estate Director (Lara Tucker) or such
other person designated by Tenant from time to time by written notice to Landlord.




     (ee) “Ultimate Completion Deadline” shall mean the date that is sixty (60) days after
the date on which Milestone L1020 (“Building Dried In”) is scheduled to be achieved as shown
on the Critical Path, as such date shall be adjusted in accordance with Paragraph 11 herein
by reason of Tenant Delays and Change Orders requested by Tenant. Changes to the Critical
Path for any other reason described in Section 11 shall not alter the Ultimate Completion
Deadline.


     (ff) “Unforeseen Conditions” shall mean concealed or unknown conditions described in §
4.3.4 of the General Conditions to the Construction Contract.


     (gg) “Weather Delays” shall mean any delay as a result of adverse weather conditions in
excess of those weather days included in the Critical Path. The description of the Weather
Delays included in the Critical Path is attached hereto as Schedule 4.


2. Construction of the Shell Building.


     (a) Landlord shall commence construction of the Shell Building and the Land Sitework in
accordance with the Critical Path and prosecute such construction diligently until
completion. Landlord shall use commercially reasonable efforts to complete construction of
the Shell Building and the Land Sitework in accordance with the Critical Path. Promptly,
but in any event within five (5) Business Days after the Completion Date, Landlord shall
give written notice to Tenant that the Completion Date has occurred, accompanied by the
Shell Building Architect’s inspection, verification and documentation with respect thereto.


     (b) If vertical construction of the Shell Building has not commenced by March 1, 2010,
then Tenant may, on or before March 11, 2010, provide Landlord written notice of Tenant’s
intent to terminate the Lease.


C-4








 






     (c) If the Completion Date does not occur within thirty (30) days of the Completion
Deadline, then Landlord shall give Tenant a credit against Minimum Rent equivalent to the
product obtained by multiplying $1,144.00 times the number of days that elapse from thirty
(30) days after the Completion Deadline until the Completion Date (“Landlord’s Delay
Penalty”).




     (d) If the Completion Date does not occur prior to one hundred twenty (120) days
following the Ultimate Completion Deadline (the “Termination Deadline”), then Tenant may
within thirty (30) days of the Termination Deadline, provide Landlord written notice of
Tenant’s intent to terminate the Lease. If Tenant does not exercise its right of
termination described in this subsection 2(d) within the time period provided, then Landlord
shall remain obligated to perform and complete the construction of the Shell Building and
Landlord shall pay to Tenant upon demand Landlord’s Delay Penalty or apply Landlord’s Delay
Penalty to the Minimum Rent payable at the beginning of the Term.




     (e) In the event of any termination by Tenant pursuant to subsections 2(b) and 2(d)
above, Landlord shall within ten (10) days thereafter (i) provide written confirmation of
the Lease termination, (ii) return to Tenant the Security Deposit, if any, and (iii) pay to
Tenant the sum of One Hundred Seventy-One Thousand Six Hundred Dollars ($171,600)
(collectively, “Landlord’s Termination Penalty”).




     (f) Tenant shall respond to all written questions pertaining to the construction of the
Shell Building or requests for direction (but not including Change Orders) submitted in
writing by Landlord to the Tenant Representative within two (2) business days. If Tenant
fails to respond within such time period, then Landlord shall use its reasonable judgment
regarding such question or request for direction and shall proceed with construction.
Landlord shall have no liability to Tenant for decisions made by Landlord pursuant to this
paragraph. Notwithstanding the foregoing, Change Orders shall be governed by Section 11
below.



     3. Construction of the Shell Building and Land Sitework. Landlord shall construct the
Land Sitework and Shell Building in accordance with the Construction Plans, all requirements set
forth in the Declaration and all applicable legal requirements. Landlord shall cause all Land
Sitework and the Shell Building (with respect to those portions of the Shell Building that are not
required to be completed in order for the Completion Date to occur) to be completed within 120 days
after the Completion Date.



     4. Reserved.



     5. Construction Contract. The Construction Contract shall be a Stipulated Sum
contract (AIA Document A101 – 1997). The General Conditions of the Contract for Construction shall
be AIA Document A201 – 1997.



     6. Construction of the Tenant Finish. Tenant acknowledges that Tenant shall solely be
responsible to construct and deliver, in compliance with all applicable legal requirements, the
Tenant Finish. Landlord represents and warrants that, in the event consents or



C-5









 




approvals are required under the Declaration in order for Tenant to construct the Tenant
Finish, Landlord shall obtain such consents or approvals. The Tenant Finish shall be constructed
by the Contractor based upon the Tenant Finish Plans. During Tenant’s construction of the Tenant
Finish, Tenant shall have the right to enter and use a reasonable portion of the Airpark Parcel as
designated by Landlord that is not the Property for the purpose of staging its construction of the
Tenant Finish. Notwithstanding anything to the contrary herein or in the Lease, Landlord
acknowledges and agrees that certain aspects of the Tenant’s construction of the Tenant Finish will
begin before the Completion Date, and Landlord and Tenant agree to cooperate and use commercially
reasonable efforts to (i) facilitate the timely construction of both the Shell Building and Tenant
Finish and, (ii) minimize the unreasonable interference with the construction to be performed by
each party.


     7. Adjustment of Minimum Rent.


     (a) The initial Minimum Rent amount (as stipulated in Exhibit D to the Lease)
has been calculated based on the assumption that the Actual Construction Cost will equal the
Stipulated Sum. If the Actual Construction Cost exceeds the Stipulated Sum due solely to
(i) Change Orders required as a result of Tenant Delay or (ii) Change Orders requested by
Tenant, then the initial annual Minimum Rent shall be increased by nine and 1/2 cents ($0.095)
for each dollar that the Actual Construction Cost exceeds Stipulated Sum for any of the
reasons set forth in this sentence; provided, however, that Tenant agrees that it shall not
require or request any such aggregated Change Orders that will solely, and not in addition
to any other reason not described above, cause the Actual Construction Cost to exceed
$3,000,000 (the “Maximum Construction Cost”). Conversely, if the Actual Construction Cost
is less than the Stipulated Sum as a result of any Change Order requested by Tenant, then
the initial annual Minimum Rent shall be decreased by nine and 1/2 cents ($0.095) for each
dollar that the Actual Construction Cost is less than the Stipulated Sum. To the extent the
Actual Construction Cost is increased or decreased due to reasons not described above, then
such increase or decrease shall have no effect upon Tenant’s Minimum Rent.


     For example, if the Actual Construction Cost is increased to $2,850,000 due to Change
Orders required as a result of Tenant Delay or Change Orders requested by Tenant, then the
initial annual Minimum Rent under the Lease would increase by $11,203.16 (($2,850,000
- $2,732,072) x $0.095).


     Conversely, if the Actual Construction Cost is decreased to $2,600,000 due to a Change
Order requested by Tenant, then the initial annual Minimum Rent under the Lease would
decrease by $12,546.84 (($2,732,072 - $2,600,000) x $0.095).


     (b) Actual Construction Cost shall be determined promptly after Landlord’s receipt of
all invoices related to the construction of the Shell Building and Land Sitework. Any
adjustment to Minimum Rent resulting from the determination of Actual Construction Cost
shall be retroactive to the Rent Commencement Date.


     (c) Until such time as the Construction Contract is executed, Tenant and Landlord shall
confer, and Tenant shall have the right to approve all Subcontractor and


C-6








 






material supply bids; provided, that if the Tenant requires the Landlord to accept a bid or
bids that are different from the bid or bids that the Contractor has chosen to accept (each
a “Bid Change” and collectively, “Bid Changes”) and if net effect of such Bid Changes shall
cause either the Stipulated Sum to be exceeded or the Completion Date to occur later than
the Completion Deadline, then Landlord and the Contractor shall enter into a Change Order or
Change Orders to the Construction Contract, which shall be approved by Tenant, adjusting the
Stipulated Sum or the Completion Deadline, as applicable. Tenant shall, at all times, have
access to and the right to audit Landlord’s records of Actual Construction Cost. During the
construction process, Landlord and Tenant shall openly share, confer, and agree on design
changes to the Construction Plans and/or Tenant Finish Plans and their associated cost
increase or reduction. No design changes that result in a cost or time increase shall be
valid unless approved in writing by Tenant. Landlord shall be responsible for the payment
of the Actual Construction Cost, whether or not it exceeds the Stipulated Sum or the Maximum
Construction Cost.




     (d) For purposes of calculating any increase in Tenant’s Minimum Rent pursuant to this
Section 7, all increases to the Actual Construction Costs that are not due to a Change Order
requested by Tenant or a Change Order required as a result of Tenant Delay shall be ignored
(i.e., such other increases shall not negatively impact Tenant or cause the amount of
Tenant’s payment hereunder to be larger than if such other increases had never occurred)..



     8. Access to Shell Building for Construction of Tenant Finish and Installation of Tenant
Equipment. Prior to the Completion Date, Tenant, its agents, consultants, contractors and
architect, shall have the right to enter and have access to the Shell Building for the purpose of
constructing the Tenant Finish (as described in Section 6) and installing Tenant’s furniture,
fixtures, and equipment. Tenant shall ensure that its activities do not unreasonably interfere
with the construction of the completion of the Land Sitework or the Shell Building.



     9. Delivery of the Shell Building; Punch List. Landlord shall deliver the Shell
Building in a structurally sound and water-tight condition, free of Hazardous Materials (as defined
in the Lease), and in compliance with the Declaration and all laws, including the ADA. Upon
completion of the Shell Building by Landlord, Landlord and Tenant shall coordinate a “walk through”
of the Shell Building and Landlord and Tenant shall complete a punch list on a form provided by the
Shell Building Architect indicating any deficiencies that are then apparent (“Punch List”). The
Punch List may be updated during the one-year correction period following the Completion Date and
Landlord shall cause any construction defects to be replaced or repaired. The Punch List shall not
include paint touch-up resulting from ordinary wear and tear or from Tenant’s moving of its
furniture, fixtures and equipment into the Shell Building. Landlord shall promptly commence and
diligently prosecute until completed the items set forth in the Punch List. Subject to the
provisions of the Lease, Landlord’s obligation and/or liability to Tenant for deficiencies shall be
limited to the correction of the noted deficiencies set forth on the Punch List and the warranty of
the Contractor. Any deficiencies that prevent or unreasonably limit the Tenant’s ability to
construct the Tenant Finish shall be required to be fixed as a condition of the occurrence of the
Completion Date, and such items shall not be considered punch list items for purpose of this
Section 9. Following the completion of the Land Sitework by



C-7









 




Landlord, Landlord and Tenant shall conduct a similar punchlist procedure with respect to such
Land Sitework if requested by Tenant at such time.




     10. Reliance Letters. Tenant may request that the Shell Building Architect, the
Tenant Finish Architect, the Tenant Finish Engineer, the Contractor and the mechanical, electrical
and plumbing design firms to provide reliance letters in favor of the Tenant, and in form and
substance reasonably satisfactory to the Tenant, entitling Tenant to rely on their standard of care
in design and performance and on warranties and correction covenants in each of their contracts.
Landlord agrees to cooperate with Tenant in making these requests, at no cost to Landlord.



     11. Change Orders.




     (a) If Tenant requests any changes in the Construction Plans, Landlord shall, within
five (5) business days thereafter, deliver to the Tenant Representative a quote from the
Contractor of the additional cost (or cost savings) and any extension (or decrease) to the
Critical Path, if any, that would be attributable to such change. Tenant shall then have
three (3) business days thereafter to approve or reject such cost or schedule change. If
Tenant agrees with such additional cost (or cost savings) and/or revision to the Critical
Path, then Tenant shall notify Landlord in writing, and Landlord and Contractor shall enter
into a Change Order to the Construction Contract and Tenant shall approve such Change Order.
Landlord shall cause such agreed Change Order to be incorporated in the Construction Plans
and/or the Critical Path, as applicable. In the event Tenant fails to approve or disapprove
the Change Order with the three (3) business day period, each day until Tenant approves or
disapproves the Change Order thereafter shall be considered a Tenant Delay. If Tenant
rejects such additional cost (or cost savings) and/or revision to the Critical Path, then
the actual number of days elapsed from Tenant’s initial request may be considered Tenant
Delay (but without duplication of any days that are considered to be Tenant Delay pursuant
to the preceding sentence).




     (b) If Landlord desires any changes in the Construction Plans, Landlord shall deliver
to the Tenant Representative a written request for such change and a quote from the
Contractor of the additional cost (or cost savings) and any extension (or decrease) to the
Critical Path, if any, that would be attributable to such change. Tenant shall then have
three (3) business days thereafter to approve or reject such cost or schedule change. If
Tenant agrees with such additional cost (or cost savings) and/or revision to the Critical
Path, then Tenant shall notify Landlord in writing, and Landlord and Contractor shall enter
into a change order to the Construction Contract and Tenant shall approve such change order;
provided, however, that Tenant shall not be responsible for any additional cost resulting
from, and Minimum Rent shall not increase or decrease as a result of, such Change Order
requested by Landlord. Landlord shall cause such agreed change to be incorporated in the
Construction Plans or the Critical Path, as applicable. In the event Tenant fails to
approve or reject the change order with the three (3) business day period, each day until
Tenant approves or rejects the change order thereafter may be considered a Tenant Delay. If
Tenant rejects such additional cost (or cost savings) and/or revision to the Critical Path,
then Landlord shall proceed with no change to the Construction Plans or the Critical Path.



C-8









 






     (c) If any change in the Construction Plans or the Critical Path is required as a
result of (i) Governmental Delay, (ii) Settlement Delay, (iii) a Post Approval Governmental
Requirement, (iv) a Force Majeure Event, (v) an Unforeseen Condition, or (vi) a Tenant
Delay, Landlord shall notify the Tenant Representative in writing of the change and provide
a quote from the Contractor of the additional cost (or cost savings) and any extension (or
decrease) to the Critical Path, if any, that is attributable to such change. Landlord shall
cause such change to be incorporated in the Construction Plans and/or the Critical Path, as
applicable.




     (d) In the event Tenant desires to modify the Tenant Finish Plans, Tenant shall
unilaterally be entitled to execute Change Orders with respect thereto; provided,
however, that Landlord’s approval shall be required with respect to any Change
Order to the Tenant Finish Plans that affect the completion of the Land Sitework or the
Shell Building or the Critical Path as it relates to the Land Sitework or the Shell
Building, which approval shall not be unreasonably withheld, conditioned or delayed.



     12. Indemnity; Liens.




     (a) Landlord shall indemnify and hold harmless Tenant and any of Tenant’s directors,
officers, contractors, agents and employees from and against any and all losses, damages,
costs (including costs of suits and reasonable attorneys’ fees incurred), liabilities and
causes of action arising out of the actions of Landlord or Landlord’s contractors,
designers, architects and engineers during the course of the construction of the
Construction Plans to the extent due to such parties’ negligence or Landlord’s failure to
comply with the requirements of the Lease or this Agreement, including but not limited to
mechanics’, materialmen’s or other liens or claims (and all costs or expenses associated
therewith) asserted, filed or arising out of any such work.




     (b) Tenant shall indemnify and hold harmless Landlord and any of Landlord’s directors,
officers, contractors, agents and employees from and against any and all losses, damages,
costs (including costs of suits and reasonable attorneys’ fees incurred), liabilities and
causes of action arising out of the actions of Tenant or Tenant’s contractors, designers,
architects and engineers during the course of the construction of the Tenant Finish to the
extent due to such parties’ negligence or Tenant’s failure to comply with the requirements
of the Lease or this Agreement, including but not limited to mechanics’, materialmen’s or
other liens or claims (and all costs or expenses associated therewith) asserted, filed or
arising out of any such work.



     13. Event of Default. An event of default under this Construction Agreement shall be
an event of default under the Lease and vice versa.



     14. Insurance.




     (a) Landlord will carry special form non-reporting builder’s risk insurance during the
construction of the Shell Building in an amount equal to one hundred percent (100%) of the
replacement cost of the Shell Building, providing special form coverage on the Shell
Building and materials stored on the Land and elsewhere, and including the



C-9









 






perils of collapse, damage resulting from faulty workmanship or materials, and water
damage.




     (b) Landlord shall cause the Contractor to carry Comprehensive General Liability
Insurance for owners and contractors, including blanket contractual liability, products and
completed operations, personal injury (including employees), independent contractors,
explosion, collapse and underground hazards for not less than One Million Dollars
($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate, which
shall include product liability coverage. The comprehensive general liability policy shall
name Landlord and Tenant individually as an “additional insured”.




     (c) Landlord shall require that Contractor provide payment and performance bonds on
standard AIA forms for the construction of the Shell Building.



     15. Certificate of Occupancy. Tenant shall deliver a temporary certificate of
occupancy for the Building to Landlord within sixty (60) days following the completion of Tenant
Finish.



     16. Copies of Architect Documents. Landlord agrees to send the Tenant Representative
a copy of all information, materials and correspondence that Architect prepares for or furnishes to
Landlord or any contractor in connection with the design and construction of the Shell Building,
including, without limitation, change orders, construction change directives, orders for minor
changes, responses to requests for information and shop drawings, certificates for payment,
decisions to withhold payment, inspection reports, and materials regarding claims and disputes,
whether the same are drafts or in final form. All items that Landlord is required to deliver to
the Tenant Representative under this section shall be sent by hand-delivery or nationally
recognized overnight delivery service, to the notice address set forth in the Lease.



     17. Self-Help Remedies of Tenant.




     (a) In addition to rights of Tenant under Section 2 above, in the event that (w)
vertical construction of the Shell Building has not commenced by January 1, 2010, or (x)
the Completion Date does not occur by the Ultimate Completion Deadline, or (y) an event of
default (after the expiration of applicable notice and cure periods) occurs under Landlord’s
construction loan, or (z) material construction activity with respect to the Shell Building
ceases for more than forty-five (45) consecutive days (Settlement Delays excepted), then at
any time thereafter, Tenant may, but shall not be obligated to, take over and complete
construction of the Shell Building and the Land Sitework as is reasonably necessary for the
use and occupancy of the Building for the operation of Tenant’s business (“Tenant’s
Right to Complete”). In the event that Tenant provides notice to Landlord that it is
exercising Tenant’s Right to Complete, the following shall apply:




     (i) Tenant shall have the right to immediately enter the Property for the
purpose of completing the construction of the Shell Building and the Land Sitework
pursuant to the Construction Plans or pursuant to such variations thereof or other
plans or specifications as Tenant may deem appropriate and Landlord shall not be
entitled to consent to or approve any such modifications. Any



C-10









 






construction so caused by Tenant may be terminated by Tenant at any time, in
its discretion. Tenant shall be under no obligation to complete the Shell Building
and the Land Sitework but its actions in this respect shall be wholly at its option.
In furtherance of construction, Tenant may, at its option, (1) retain such
contractors, subcontractors, architects, engineers, laborers and other persons and
firms as it may elect, it being agreed that Tenant shall not be required to use any
particular person or firm because the person or firm had a prior contract with
Landlord; (2) pay, litigate or compromise any claim for labor, professional
services or materials that may result in a lien upon the Property; (3) make any
applications or give any certificates with respect to the Property including, but
not limited to, applications pertaining to zoning variances and other applications
to regulatory agencies; and (4) take any other action it may deem necessary to
protect the Property or to promote and complete construction thereon.




     (ii) Landlord hereby assigns to Tenant, to the extent assignable: (a) the
Construction Plans, the Construction Contract, and any other agreements related to
the planning, design and/or construction of the Shell Building or the Land Sitework,
including, without limitation, any construction contracts and architect contracts
(collectively, the “Construction Plans and Contracts”), (b) any retainage or funds
that may be held in escrow under any Construction Plans and Contracts, and (c) any
and all applications, permits, licenses and/or approvals relating to the Shell
Building or any other construction or improvements located on the Land.
Notwithstanding the foregoing assignment, Tenant shall not have any obligation under
the Construction Contract or any other contracts or agreements described above
unless Tenant expressly assumes such obligations after the date on which Tenant
exercises Tenant’s Right to Complete.




     (iii) Landlord shall perform, make, execute and deliver, and cause any
affiliate to perform, make, execute and deliver, all such additional and further
acts, occurrences and instruments as Tenant reasonably may require to document and
accomplish the construction contemplated by Tenant’s Right to Complete.




     (iv) Any action taken by Tenant pursuant to its remedies hereunder may be taken
by Tenant in its own name or in the name of Landlord. Landlord hereby appoints
Tenant as Landlord’s attorney-in-fact, with full power of substitution, to take any
action authorized by this Agreement on Landlord’s behalf following any exercise of
Tenant’s Right to Complete. The parties acknowledge that this power of attorney is
coupled with an interest and is irrevocable.




     (v) Tenant shall receive a credit against Minimum Rent in an amount equal to
all costs and expenses paid by Tenant in connection with Tenant’s Right to Complete,
which credit shall be applied each month beginning on the Rent Commencement Date
until such credit is exhausted.




     (vi) Tenant shall indemnify Landlord for any mechanic’s or materialmen’s liens
that may be recorded against the Property to the extent that



C-11









 






such liens relate solely to work directed by Tenant or its contractors and are
not related to Landlord’s efforts to complete the Land Sitework or the Shell
Building.




     (vii) The provisions of Section 7 shall no longer apply.




     (b) In the event Landlord has not completed the Shell Building (with respect to the
portions of the Shell Building that are not required to be completed in order for the
Completion Date to occur) or the Land Sitework within one hundred and twenty (120) days
after the Completion Date in accordance with Section 3, then Tenant, at its option (but
without any obligation with respect thereto), may exercise Tenant’s Right to Complete with
respect to such work under the same terms and conditions described in Section 17(a) above.



C-12









 





EXHIBIT D




Minimum Rent




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Period	 	Annual Minimum Rent	 	Monthly Minimum Rent
	Months
	 	Commencement Date - 12	 	$	475,140.16	 	 	$	39,595.01	 
	Months
	 	 	13-24	 	 	$	487,018.66	 	 	$	40,584.89	 
	Months
	 	 	25-36	 	 	$	499,194.13	 	 	$	41,599.51	 
	Months
	 	 	37-48	 	 	$	511,673.98	 	 	$	42,639.50	 
	Months
	 	 	49-60	 	 	$	524,465.83	 	 	$	43,705.49	 
	Months
	 	 	61-72	 	 	$	537,577.48	 	 	$	44,798.12	 
	Months
	 	 	73-84	 	 	$	551,016.92	 	 	$	45,918.08	 
	Months
	 	 	85-96	 	 	$	564,792.34	 	 	$	47,066.03	 
	Months
	 	 	97-108	 	 	$	578,912.15	 	 	$	48,242.68	 
	Months
	 	 	109-120	 	 	$	593,384.95	 	 	$	49,448.75	 
	Months
	 	 	121-132	 	 	$	608,219.58	 	 	$	50,684.96	 
	Months
	 	 	133-144	 	 	$	623,425.06	 	 	$	51,952.09	 
	Months
	 	 	145-156	 	 	$	639,010.69	 	 	$	53,250.89	 
	Months
	 	 	157-168	 	 	$	654,985.96	 	 	$	54,582.16	 
	Months
	 	 	169-180	 	 	$	671,360.61	 	 	$	55,946.72	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	First Renewal Term
	 	 	 	 	 	 	.	 	 	 	 	 
	Months
	 	 	181-192	 	 	$	688,144.62	 	 	$	57,345.39	 
	Months
	 	 	193-204	 	 	$	705,348.24	 	 	$	58,779.02	 
	Months
	 	 	205-216	 	 	$	722,981.94	 	 	$	60,248.50	 
	Months
	 	 	217-228	 	 	$	741,056.49	 	 	$	61,754.71	 
	Months
	 	 	229-240	 	 	$	759,582.90	 	 	$	63,298.58	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Second Renewal Term
	 	 	 	 	 	 	 	 	 	 	 	 
	Months
	 	 	241-252	 	 	$	778,572.48	 	 	$	64,881.04	 
	Months
	 	 	253-264	 	 	$	798,036.79	 	 	$	66,503.07	 
	Months
	 	 	265-276	 	 	$	817,987.71	 	 	$	68,165.64	 
	Months
	 	 	277-288	 	 	$	838,437.40	 	 	$	69,869.78	 
	Months
	 	 	289-300	 	 	$	859,398.34	 	 	$	71,616.53	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Area of Building
	 	 	34232	 	 	 	 	 	 	 	 	 
	Initial Base Rate
	 	$	13.88	 	 	 	 	 	 	 	 	 
	Annual Increases
	 	 	2.5	%	 	 	 	 	 	 	 	 






D-1









 






EXHIBIT E




Building Rules



1. Plumbing fixtures shall be used only for the purposes for which they are designed, and no
sweepings, rubbish, rags, or other unsuitable materials shall be disposed into them. Damage
resulting to any such fixtures from misuse by a tenant shall be the liability of Tenant.



2. The proposed weight and location of any safes, file systems and other heavy equipment shall be
subject to Landlord’s approval, either by Landlord’s approval of Tenant’s furniture and file
storage layout, or its approval of Tenant’s plans for the Tenant Finish reflecting the location of
such heavy systems or equipment. Landlord shall have the right to approve any future relocation of
such heavy systems or equipment, and Landlord may condition such approval on a requirement that
weight be distributed on supporting devices approved by Landlord.



3. No flammable or explosive fluids or materials shall be kept or used within the Building, except
in areas approved by Landlord, and tenant shall comply with all applicable building and fire codes
relating thereto.



4. Electric current shall not be used for space heaters, cooking or heating devices or similar
appliances without Landlord’s prior written permission.



5. Except as otherwise provided in the Lease, no antennas (including microwave or satellite dish
antennas) shall be placed on the roof of the Building or elsewhere on the Property without the
prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed.



6. Smoking shall be prohibited inside the Building. Tenant may provide a suitable area outside the
Building designated for smoking.



Landlord reserves the right to amend and add reasonable additional rules as Landlord considers
appropriate for the safety, care, maintenance, operation, and cleanliness of the Building, and for
the preservation of good order therein; provided that if Landlord’s consent or approval is required
with respect to any existing, amended or added rule, Landlord shall not unreasonably withhold,
condition or delay such consent or approval. If any of these rules directly contradicts the other
terms of the Lease, such other terms shall prevail, except for Rule 3 above.





E-1









 








EXHIBIT F




Permitted Encumbrances





	1.	 	Real Property Taxes for 2009 and subsequent years.
	 
	2.	 	Matters shown on the plat of record as Instrument No. 20011120-0127754, Register’s Office for
Davidson County, Tennessee.
	 
	4.	 	Declaration




F-1









 











EXHIBIT G




Site Plan




G-1









 




EXHIBIT H


LANDLORD’S LIEN WAIVER, ACCESS AGREEMENT AND CONSENT


THIS LANDLORD’S LIEN WAIVER, ACCESS AGREEMENT AND CONSENT (the “Agreement”) is made and entered
into as of                     , 2009 by and between SOLOMON AIRPARK, LLC, a Tennessee limited
liability company, having an office at 4539 Trousdale Drive, Nashville, TN 37204 (“Landlord”) and
CITIBANK, N.A. having an office at 390 Greenwich Street, New York, NY 10013, as collateral agent,
(in such capacity, “Collateral Agent”) for the benefit of the Secured Parties under the Credit
Agreement.


R E C I T A L S


          A. Landlord is the record title holder and owner of the real property described in
Schedule A attached hereto (the “Real Property”).


          B. Landlord has leased all of the Real Property (the “Leased Premises”) to Emdeon Business
Services LLC, a Delaware limited liability company (“Lessee”) pursuant to a certain lease agreement
or agreements described in Schedule B attached hereto (collectively, and as amended,
amended and restated, supplemented or otherwise modified from time to time, the “Lease”).


          C. Lessee and the Collateral Agent, among others, have previously entered into a First Lien
Credit Agreement and a Second Lien Credit Agreement, each dated as of November 16, 2006 (each of
the foregoing credit agreements, as amended, amended and restated, supplemented or otherwise
modified from time to time, are hereinafter collectively referred to the “Credit Agreement”;
capitalized terms used and not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement), pursuant to which the Lenders have made certain loans to Borrower
(collectively, the “Loans”).


          D. Lessee is a Borrower under the Credit Agreement and the other documents evidencing and
securing the Loans (collectively, the “Loan Documents”).


          E. As security for the payment and performance of Lessee’s Obligations under the Credit
Agreement and the other Loan Documents, Collateral Agent (for its benefit and the benefit of the
Secured Parties) has a security interest in and lien upon substantially all of Lessee’s personal
property, inventory, accounts, goods, machinery, equipment, furniture and fixtures (together with
all additions, substitutions, replacements and improvements to, and proceeds of, the foregoing,
collectively, the “Personal Property”) and a mortgage lien on Lessee’s leasehold interest
in the Leased Premises.


          F. Collateral Agent has requested that Landlord execute this Agreement in accordance with the
terms of the Credit Agreement.


H-1








 








A G R E E M E N T :



NOW, THEREFORE, for and in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Landlord hereby represents, warrants
and agrees in favor of Collateral Agent, as follows:




          1. Landlord hereby waives and releases unto Collateral Agent (i) any contractual landlord’s
lien and any other landlord’s lien which it may be entitled to at law or in equity against any
Personal Property, (ii) any and all rights granted by or under any present or future laws to levy
or distrain for rent or any other charges which may be due to the Landlord against the Personal
Property and (iii) any and all claims, liens and demands of every kind which it has or may
hereafter have against the Personal Property (including, without limitation, any right to include
the Personal Property in any secured financing Landlord may become party to). Nothing herein shall
be deemed a waiver of any judgment lien that Landlord may obtain against Lessee after an Event of
Default under the Lease.




          2. Landlord certifies that (i) Landlord is the landlord under the Lease described in
Schedule B attached hereto, (ii) the Lease is in full force and effect and has not been
amended, modified or supplemented except as set forth in Schedule B hereto, (iii) there is
no defense, offset, claim or counterclaim by or in favor of Landlord against Lessee under the Lease
or against the obligations of Landlord under the Lease and (iv) no notice of default has been given
under or in connection with the Lease which has not been cured, and Landlord has no knowledge of
any occurrence of any other default under or in connection with the Lease, (v) additional rent
under the Lease is paid by Lessee directly to the party(s) owed pursuant to Section 3(e) of the
Lease, and (vi) there are no common area charges under the Lease. Within thirty (30) days after
the Actual Construction Cost (as defined in the Exhibit C of the Lease) is determined in accordance
with the terms of the Lease, Landlord shall provide a written acknowledgement to Collateral Agent
stating whether Lessee is in possession of the Leased Premises and stating the current monthly base
rent and the date through which such rent has been paid.




          3. Landlord agrees that Collateral Agent has the right to remove the Personal Property that
Lessee is entitled to remove from the Leased Premises pursuant to Section 10 of the Lease at any
time prior to the occurrence of a default under the Lease and, after the occurrence of such a
default, during the Standstill Period (as hereinafter defined); provided that Collateral
Agent shall repair any damage arising from such removal. Landlord further agrees that, during the
foregoing periods, Landlord will not (i) remove any of the Personal Property from the Leased
Premises or (ii) hinder Collateral Agent’s actions in removing Personal Property from the Leased
Premises or Collateral Agent’s actions in otherwise enforcing its security interest in the Personal
Property. Collateral Agent shall not be liable for any diminution in value of the Leased Premises
caused by the absence of Personal Property actually removed or by the need to replace the Personal
Property after such removal. Landlord acknowledges that Collateral Agent shall have no obligation
to remove the Personal Property from the Leased Premises.




          4. Landlord acknowledges and agrees that Lessee’s granting of a security interest in the
Personal Property and the granting of a mortgage lien in and upon Lessee’s leasehold interest in
the Leased Premises, in each case, in favor of the Collateral Agent (for its



H-2









 






benefit and the benefit of the Secured Parties) shall not constitute a default under the Lease
nor permit Landlord to terminate the Lease or re-enter or repossess the Leased Premises or
otherwise be the basis for the exercise of any remedy by Landlord and Landlord hereby expressly
consents to the granting of such security interest and mortgage lien.



Notwithstanding anything to the contrary contained in this Agreement or the Lease, in the event of
a default by Lessee under the Lease, Landlord agrees that (i) it shall provide to Collateral Agent
at the address set forth in the introductory paragraph hereof a copy of any notice of default
delivered to Lessee under the Lease and (ii) it shall not exercise any of its remedies against
Lessee provided in favor of Landlord under the Lease or at law or in equity until the expiration of
the cure periods stipulated in the Lease; provided, however, that, notwithstanding the
terms of the Lease, in the case of the nonpayment of Minimum Rent or any other sum payable under
the Lease, the Landlord shall not exercise such remedies for at least thirty (30) days after the
Landlord has given written notice of such nonpayment to Collateral Agent (such periods being
referred to as the “Standstill Period”); provided, further, that if Landlord shall have properly
given notice pursuant to clause (i) above two (2) times in any twelve (12) consecutive month
period, then the requirements of both clauses (i) and (ii) above shall not apply during such
period, and provided further, however, if such non-monetary default by its nature cannot reasonably
be cured by Collateral Agent the applicable Standstill Period, the Collateral Agent shall have such
additional period of time as may be reasonably necessary to cure such non-monetary default, so long
as Lender commences such curative measures within the applicable Standstill Period and thereafter
proceeds diligently to complete such curative measures. In the event that any such non-monetary
default by its nature cannot reasonably be cured by Collateral Agent, Landlord shall, provided
Collateral Agent has theretofore cured all monetary defaults (if any), upon the request of
Collateral Agent enter into a new lease with Collateral Agent (or its nominee) on the same terms
and conditions as the Lease. Collateral Agent shall have the right, but not the obligation, during
the Standstill Period, to cure any such default and Landlord shall accept any such cure by
Collateral Agent or Lessee. If, during the Standstill Period, Collateral Agent or Lessee or any
other Person cures any such default, then Landlord shall rescind the notice of default.




          5. In the event of a termination, disaffirmance or rejection of the Lease for any reason,
including, without limitation, pursuant to any laws (including any bankruptcy or other insolvency
laws) by Lessee or the termination of the Lease for any reason by Landlord, Landlord will give the
Collateral Agent the right, within thirty (30) days of such event, provided all monetary defaults
under the Lease have been cured, to enter into a new lease of the Leased Premises, in the name of
the Collateral Agent (or a designee to be named by the Collateral Agent at the time), for the
remainder of the term of the Lease and upon all of the terms and conditions thereof, or, if the
Collateral Agent shall elect not to exercise such right (such election to be made by Collateral
Agent at its sole discretion), Landlord will give the Collateral Agent the right to enter upon the
Leased Premises during such thirty (30) day period for the purpose of removing the Personal
Property that Lessee is entitled to remove pursuant to Section 10 of the Lease.




          6. Notwithstanding any provision to the contrary contained in the Lease, any acquisition of
Lessee’s interest by Collateral Agent, its nominee, or the purchaser at any



H-3









 






foreclosure sale conducted by Collateral Agent shall not create a default under, or require
Landlord’s consent under, the Lease.




          7. The terms and provisions of this Agreement shall inure to the benefit of and be binding
upon the successors and assigns of Landlord (including, without limitation, any successor owner of
the Real Property) and Collateral Agent. Landlord will disclose the terms and conditions of this
Agreement to any purchaser or successor to Landlord’s interest in the Leased Premises.
Notwithstanding that the provisions of this Agreement are self-executing, Landlord agrees, upon
request by Collateral Agent, to execute and deliver a written acknowledgment confirming the
provisions of this Agreement in commercially reasonable form and substance.




          8. All notices to any party hereto under this Agreement shall be in writing and sent to such
party at its respective address set forth above (or at such other address as shall be designated by
such party in a written notice to the other party complying as to delivery with the terms of this
Section 9) by certified mail, postage prepaid, return receipt requested or by overnight delivery
service.




          9. The provisions of this Agreement shall continue in effect until the Loans have been paid in
full and all of Borrower’s other Obligations under the Credit Agreement and the other Loan
Documents have been satisfied.




          10. THE INTERPRETATION, VALIDITY AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED UNDER THE LAWS OF THE STATE OF TENNESSEE, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS
PRINCIPLES THEREOF.




          11. Landlord agrees to execute, acknowledge and deliver such further commercially reasonable
instruments as Collateral Agent may request to allow for the proper recording of this Agreement
(including, without limitation, a revised landlord’s waiver in form and substance sufficient for
recording) or to otherwise accomplish the purposes of this Agreement.




          12. Landlord agrees that, so long as the Loans and Lessee’s Obligations under the Credit
Agreement remain outstanding and Collateral Agent retains an interest in the Personal Property
and/or Lessee’s leasehold interest in the Leased Premises, Landlord will provide Collateral Agent
with prompt notice of (i) the satisfaction of the Lease Contingencies (as defined in the Lease),
(ii) the occurrence of the Commencement Date (as defined in the Lease), and (iii) any modification,
alteration, amendment or termination of the Lease.




          13. Attorney’s Fee. If any legal action, suit or proceeding is commenced between the
parties regarding their respective rights and obligations under this Agreement, the prevailing
party shall be entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys’ fees and court costs (including, without limitation, expert witness fees). As used
herein, the term “prevailing party” shall mean the party which obtains the principal relief it has
sought, whether by compromise, settlement or judgment. If the party which commenced or



H-4









 






instituted the action, suit or proceeding shall dismiss or discontinue it without the
concurrence of the other party, such other party shall be deemed the prevailing party.




[Signature page follows]




H-5









 




          IN WITNESS WHEREOF, Landlord and Collateral Agent have caused this Agreement to be duly
executed and delivered by their duly authorized officers as of the date first above written.


	 	 	 	 	 
	 	SOLOMON AIRPARK, LLC, a Tennessee limited

liability company, as Landlord

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




	 	 	 	 	 
	 
	 	 	 	 
	STATE OF TENNESSEE

	)	 	 	 
	 
	 	 	 	 
	COUNTY OF                                         

	)	 	 	 





     Personally appeared before me, the undersigned, a Notary Public,                     , with whom I
am personally acquainted, who acknowledged that _he executed the within instrument for the purposes
therein contained, and who further acknowledged that _he is the                      of SOLOMON AIRPARK,
LLC, a limited liability company and is authorized by the limited liability company to execute this
instrument on behalf of the limited liability company.


     WITNESS
my hand, at office, this ___ day of
                                        , 200___.



	 	 	 	 	 
	 
	 	 	 	 
	 

	 	 

Notary Public
	 	 





My Commission Expires:


Signature page of Landlord to Landlord’s Lien Waiver, Access Agreement and Consent


H-6








 




	 	 	 	 	 
	 	CITIBANK, N.A.,

as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



STATE OF                                         )


COUNTY OF                                     )


     Personally appeared before me, the undersigned, a Notary Public,                     , with whom I
am personally acquainted, who acknowledged that _he executed the within instrument for the purposes
therein contained, and who further acknowledged that _he is the                      of CITIBANK, N.A., a
national banking association, and is authorized by the association to execute this instrument on
behalf of the association.


     WITNESS
my hand, at office, this ___ day of
                                        , 200___.



	 	 	 	 	 
	 
	 	 	 	 
	 

	 	 

Notary Public
	 	 





My Commission Expires:


H-7