the SEC's website (it being
understood that such financial statements shall be deemed to be
publicly-available if the consolidated financial statements of Tenant and such
guarantor are available to the general public on the SEC's or either such
company's website), Tenant shall deliver to Landlord a copy of Tenant's and such
guarantor's annual audited financial statements and Tenant's and such
guarantor's quarterly unaudited financial statements within ten (10) days after
said financial statements are prepared."
7.
NO DEFAULTS.
A.
BI ACKNOWLEDGES AND AGREES THAT, TO THE BEST OF ITS KNOWLEDGE
AFTER DUE AND DILIGENT INQUIRY, AS OF THE DATE HEREOF
(I) THERE EXISTS NO
BREACH, DEFAULT, OR EVENT OR CONDITION WHICH, WITH THE GIVING OF NOTICE OR THE
PASSAGE OF TIME OR BOTH, WOULD CONSTITUTE A DEFAULT BY LANDLORD UNDER THE LEASE,
AND (II) THERE ARE NO EXISTING CLAIMS, DEFENSES OR OFFSETS AGAINST RENT DUE OR
TO BECOME DUE UNDER THE LEASE.
B.
LANDLORD ACKNOWLEDGES AND AGREES THAT, TO LANDLORD'S CURRENT
KNOWLEDGE, AS OF THE DATE HEREOF THERE EXISTS NO BREACH, DEFAULT, OR EVENT OR
CONDITION WHICH, WITH THE GIVING OF NOTICE OR THE PASSAGE OF TIME OR BOTH, WOULD
CONSTITUTE A DEFAULT UNDER THE LEASE OTHER THAN:
(I) CERTAIN ITEMS OF REPAIR
AND MAINTENANCE TO BE COMPLETED BY TENANT LISTED IN THE ATTACHED EXHIBIT "C"
(THE "DEFERRED MAINTENANCE ITEMS"); (II) BI'S FAILURE TO TIMELY PROVIDE NOTICE
TO LANDLORD (THE "REQUIRED ENVIRONMENTAL NOTICES") UNDER SECTION 37 OF THE LEASE
OF CERTAIN ACTUAL OR POTENTIAL VIOLATIONS OF SAID SECTION 37, AS SET FORTH IN
THOSE CERTAIN LETTERS FROM BI TO LANDLORD DATED NOVEMBER 17, 2004, AND
NOVEMBER 29, 2004, AND THE ATTACHMENTS REFERRED TO THEREIN (COLLECTIVELY, THE
"NOVEMBER 2004 NOTICES") AND (III) ANY CONTINUING VIOLATIONS OF SECTION 37 OF
THE LEASE ASSOCIATED WITH THE MATTERS ENUMERATED IN THE NOVEMBER 2004 NOTICES
(COLLECTIVELY, THE "SPECIFIC ENVIRONMENTAL MATTERS").
LANDLORD HEREBY AGREES
(A)
TO FOREBEAR FROM DECLARING A DEFAULT WITH RESPECT TO THE DEFERRED
MAINTENANCE ITEMS UNTIL MARCH 31, 2005, AND (B) TO WAIVE ANY DEFAULT UNDER THE
LEASE ARISING FROM THE FAILURE TO TIMELY PROVIDE THE REQUIRED ENVIRONMENTAL
NOTICES WITH RESPECT TO THE SPECIFIC ENVIRONMENTAL MATTERS.
SUCH FORBEARANCE
AND WAIVER SHALL NOT EXTEND TO (A) ANY REQUIREMENTS UNDER THE LEASE REGARDING
TENANT'S OBLIGATION TO CURE ANY VIOLATION OF SECTION 37 OF THE LEASE RELATING TO
THE SPECIFIC ENVIRONMENTAL MATTERS, OR (B) TENANT'S OBLIGATION TO COMPLY WITH
ALL OTHER PROVISIONS OF ARTICLE 37 OF THE LEASE; PROVIDED, HOWEVER, LANDLORD AND
BI AGREE THAT BI SHALL BE PERSONALLY RESPONSIBLE FOR THE ADMINISTRATIVE
RESOLUTION OF THOSE CERTAIN SPECIFIC ENVIRONMENTAL MATTERS AS FOLLOWS: (X) BI'S
FAILURE TO SATISFY AND DISCHARGE THAT CERTAIN ADMINISTRATIVE NOTICE AND ORDER
RECEIVED BY BI FROM THE CITY OF SAN DIEGO ON OR ABOUT MARCH 4, 2004, RELATING TO
DISCHARGES OF CHLOROFORM AND AMMONIA DURING THE CALENDAR YEAR 2002, AND (Y) BI'S
OPEN ISSUES WITH THE CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCE CONTROL WITH
RESPECT TO THE ONSITE RELEASE OF FIVE GALLONS OF SENTOL ON JUNE 2, 1999, AND THE
ONSITE RELEASE OF