Common use of Representations, Warranties and Agreements of the Seller Clause in Contracts

Representations, Warranties and Agreements of the Seller. With respect to the Participation, the Seller represents and warrants to, and agrees with, the Participant on and as of the Closing Date that: (a) it has made no prior assignment, conveyance, transfer or grant of a participation interest in the Transferred Interest or of any interest therein and has no obligation to do so; (b) the Seller is the sole legal and beneficial owner of the Transferred Interest, and it has good title to the Transferred Interest, free and clear of all liens and encumbrances of any kind except for liens that will be released in connection with and contemporaneously with the sale of the Participation; (c) the Seller is duly organized and validly existing in good standing under the laws of its jurisdiction of formation, and has full power and authority to execute and deliver this Agreement and all other documents executed in connection herewith, and to consummate the sale of a Participation as contemplated hereby and thereby and no consents, approvals or registrations, other than those already obtained, are required in connection with the sale hereunder and the consummation of the transaction contemplated hereby; (d) this Agreement and any documents to be executed in connection herewith have been duly authorized by it, are valid, binding and enforceable against it in accordance with their respective terms except as the enforceability thereof may be limited by applicable bankruptcy or insolvency laws or by a court’s exercise of its equitable powers, and are not in contravention of (i) any law, rule, regulation or agreement by which the Seller or any of its assets are bound, other than any agreement which governs or secures indebtedness of the Seller that will be repaid in full in connection with and contemporaneously with the sale of the Participation or (ii) the Seller’s organizational documents; (e) it is a sophisticated seller with respect to the Participation, has adequate information concerning the business and financial condition of the Obligor to make an informed decision regarding the sale of the Participation, and has independently, without reliance upon the Participant and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Seller acknowledges and agrees that the Participant may possess material information with respect to the Obligor not known to the Seller (“Purchaser Information”), that the Seller has not requested the Purchaser Information and that the Participant shall have no liability to the Seller with respect to the non-disclosure of the Purchaser Information and the Seller hereby releases the Participant therefrom; (f) notwithstanding the terms of Section 8(c) hereof, none of the Seller Information (as defined therein) contradicts or is inconsistent with any representation or warranty made by the Seller in this Agreement; (g) as of such Closing Date, the Participation consists of the amounts as set forth on the Certificate; (h) as of such Closing Date, each of the Seller and, to the Seller’s knowledge, the Obligor is in compliance in all material respects with the Development Agreement and the Management Agreement and no Event of Default by the Seller (or, to the Seller’s knowledge, by the Obligor) has occurred or is continuing with respect to the Development Agreement and the Management Agreement; (i) the Seller has made available to the Participant on IntraLinks a true, correct and complete copy of all of the Notes and the Loan Documents, in each case, as in effect on the date hereof; (j) so long as any principal of or interest on any Loan (whether or not due) shall remain unpaid, the Seller shall not, unless the Required Participants shall otherwise consent in writing (i) create, incur, assume or suffer to exist any security interest or other lien upon or with respect to the Loans or the Loan Documents or (ii) create, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to any indebtedness other than the Loans, except in each case to the extent reasonably required in connection with and in the ordinary course of the Seller’s business, the Seller’s incurrence of trade indebtedness, incurrence of obligations under operating leases, endorsement of negotiable instruments for deposit or collection, and similar transactions provided that such indebtedness shall not exceed an aggregate amount of $5,000,000 outstanding at any one time (provided, however, that nothing in this Section 7(j) shall be deemed to prohibit, limit or otherwise restrict the Seller’s performance of its obligations under the Development Agreement or the Management Agreement or of any act described in this Section 7(j) in connection with such performance); (k) no interest in the Participation is being sold by or on behalf of an “employee benefit plan” (as defined in the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated under it, “ERISA”) or constitutes directly or indirectly “Plan Assets” as defined in ERISA; and (l) within 30 days after the Closing Date, Seller shall have (i) appointed an agent pursuant to Section 9(a) for the purposes of servicing and administering the Loans, (ii) directed such agent to create and maintain a lockbox or similar arrangement pursuant to Section 9(b)(viii), (iii) duly notified and directed Obligor to make payments therein, and (iv) delivered to the Participant an executed copy of the agreement evidencing such arrangement (which agreement shall be in a form substantially similar to the form provided to the Participant by the Seller prior to the Closing Date). 8. Representations, Warranties, Acknowledgements and Agreements of the Participant. With respect to the Participation, the Participant represents and warrants to, and acknowledges and agrees with, the Seller on and as of the Closing Date that: (a) it is duly organized and validly existing in good standing under the laws of its jurisdiction of formation, and has full power and authority to execute and deliver this Agreement and all other documents executed in connection herewith, and to consummate the purchase of the Participation contemplated hereby, and no consents, approvals or registrations are required in connection with its purchase of the Participation hereunder; (b) this Agreement and any documents to be executed and delivered in connection herewith have been duly authorized by it, are valid, binding and enforceable against it in accordance with their respective terms except as the enforceability thereof may be limited by applicable bankruptcy or insolvency laws or by a court’s exercise of its equitable powers, and are not in contravention of (i) any law, rule, regulation or agreement by which the Participant or any of its assets are bound or (ii) the Participant’s organizational documents; (c) it is a sophisticated buyer with respect to the Participation, has adequate information concerning the business and financial condition of the Obligor and the Seller to make an informed decision regarding the purchase of the Participation, and has independently, without reliance on the Seller and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Participant acknowledges and agrees that the Seller may possess material information with respect to the Obligor and the Seller not known to the Participant (“Seller Information”), that the Participant has not requested the Seller Information and that the Seller shall have no liability to the Participant with respect to the nondisclosure of the Seller Information and the Participant hereby releases the Seller therefrom; furthermore, it acknowledges that it understands that, as described in Section 12.2 of the Development Agreement and Section 11 of the Management Agreement, the Obligor might not be obligated to perform its obligations under the respective agreements (including the Loans) if an event of default by the Seller occurs under either agreement and that, in circumstances as provided in Section 9.2.1(j) of the Development Agreement, the security interests securing the Loans may be required to be released or the payment of the Loans and the security interests securing the Loans may be required to be further subordinated; (d) notwithstanding the terms of Section 7(e) hereof, none of the Purchaser Information contradicts or is inconsistent with any representation or warranty made by the Participant in this Agreement; (e) it is not subject to withholding tax on payments under this Agreement and agrees to provide any documentation required by U.S. law or regulation or by the Seller to establish that it is exempt from U.S. withholding tax; (f) it acknowledges and agrees that none of BAS or any of its agents or affiliates has given any investment advice or rendered any opinion to you as to whether an investment in the Participation is prudent or suitable, and the Participant is not relying on any representation or warranty by BAS or any of its agents or affiliates; (g) it acknowledges and agrees that none of BAS or any of its agents or affiliates has provided, and will not be providing, the Participant with any material regarding the Loans, the Seller or the Obligor other than the Confidential Information Memorandum, dated January, 2007, for which BAS takes no responsibility. The Participant acknowledges that BAS is not responsible for the contents of that document. The Participant has not requested BAS or any of its agents or affiliates to provide it with any other information. In addition, the Participant acknowledges that BAS may facilitate the exchange of information between it and the Seller, but

Representations, Warranties and Agreements of the Seller. With respect to the Participation, the The Seller and BAS each represents and warrants to, and agrees with, the Participant on and Company as of the Closing Date that: follows: (a) it Neither the Seller nor BAS is relying, and neither has made no prior assignmentrelied, conveyanceupon the Company or any affiliate of the Company with respect to the legal, transfer accounting, tax or grant other implications of a participation interest in the Transferred Interest or of any interest therein this Letter Agreement and has no obligation conducted its own analyses of the legal, accounting, tax and other implications hereof. The Seller and BAS each further acknowledges and agrees that neither the Company nor any affiliate of the Company has acted as its advisor in any capacity in connection with this Letter Agreement or the transactions contemplated hereby. The Seller is entering into this Letter Agreement with a full understanding of all of the terms and risks hereof (economic and otherwise), has adequate expertise in financial matters to do so; evaluate those terms and risks and is capable of assuming (financially and otherwise) those risks. (b) the The Seller is the sole legal and beneficial owner of the Transferred Interest, and it has good title to the Transferred Interest, free and clear of all liens and encumbrances of any kind except for liens that will be released in connection with and contemporaneously with the sale of the Participation; (c) the Seller is duly organized and validly existing in good standing under the laws of its jurisdiction of formation, and has full power and authority to execute and deliver enter into this Letter Agreement and all other documents executed in connection herewith, and to consummate the sale transactions contemplated hereby. This Letter Agreement has been duly authorized and validly executed and delivered by the Seller and constitutes a valid and legally binding obligation of a Participation as contemplated hereby the Seller, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and thereby similar laws affecting creditors’ rights generally and no consentsto general equitable principles. (c) The execution and delivery by the Seller of, approvals or registrationsand the compliance by the Seller with all of the provisions of, other than those already obtained, are required in connection with the sale hereunder this Letter Agreement and the consummation of the transaction transactions herein contemplated hereby; (d) this Agreement and will not conflict with or result in a material breach of any documents of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to be executed in connection herewith have been duly authorized by it, are valid, binding and enforceable against it in accordance with their respective terms except as which the enforceability thereof may be limited by applicable bankruptcy Seller or insolvency laws or by a court’s exercise any of its equitable powers, and are not in contravention of (i) any law, rule, regulation Significant Subsidiaries is a party or agreement by which the Seller or any of its Significant Subsidiaries is bound or to which any of the property or assets are bound, other than any agreement which governs or secures indebtedness of the Seller that will or any of its Significant Subsidiaries is subject, except where such breach or default would not reasonably be repaid in full in connection with expected to materially and contemporaneously with adversely affect the sale ability of the Participation Seller to perform its obligations thereunder), nor will such action result in any violation of the provisions of the constitutive documents of the Seller or a material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Seller or any of its Significant Subsidiaries or any of their respective properties. (d) On the Purchase Date and on each day to and including the final day of the Averaging Period or Valuation Period, if applicable, (i) the assets of the Seller at their fair valuation exceed the liabilities of the Seller, including contingent liabilities, (ii) the Seller’s organizational documents; (e) it is a sophisticated seller with respect to the Participation, has adequate information concerning the business and financial condition of the Obligor to make an informed decision regarding the sale of the Participation, and has independently, without reliance upon the Participant and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Seller acknowledges and agrees that the Participant may possess material information with respect to the Obligor not known to the Seller (“Purchaser Information”), that the Seller has not requested the Purchaser Information and that the Participant shall have no liability to the Seller with respect to the non-disclosure of the Purchaser Information and the Seller hereby releases the Participant therefrom; (f) notwithstanding the terms of Section 8(c) hereof, none capital of the Seller Information (as defined therein) contradicts or is inconsistent with any representation or warranty made by adequate to conduct the Seller in this Agreement; (g) as of such Closing Date, the Participation consists of the amounts as set forth on the Certificate; (h) as of such Closing Date, each business of the Seller and, to the Seller’s knowledge, the Obligor is in compliance in all material respects with the Development Agreement and the Management Agreement and no Event of Default by the Seller (or, to the Seller’s knowledge, by the Obligor) has occurred or is continuing with respect to the Development Agreement and the Management Agreement; (iiii) the Seller has made available the ability to the Participant on IntraLinks a true, correct pay its debts and complete copy of all of the Notes obligations as such debts mature and the Loan Documents, in each case, as in effect on the date hereof; (j) so long as any principal of or interest on any Loan (whether or does not due) shall remain unpaid, the Seller shall not, unless the Required Participants shall otherwise consent in writing (i) create, incur, assume or suffer to exist any security interest or other lien upon or with respect to the Loans or the Loan Documents or (ii) create, incur, assume, guarantee or suffer to existintend to, or otherwise become does not believe that it will, incur debt beyond its ability to pay as such debts mature. (e) No consent, approval, authorization, order, registration, qualification or remain liable with respect to any indebtedness other than the Loansfiling, except in each case to the extent reasonably such as are customarily required in connection with and in the ordinary course transactions of the Seller’s business, the Seller’s incurrence of trade indebtedness, incurrence of obligations under operating leases, endorsement of negotiable instruments for deposit or collection, and similar transactions provided that such indebtedness shall not exceed an aggregate amount of $5,000,000 outstanding at any one time (provided, however, that nothing in this Section 7(j) shall be deemed to prohibit, limit or otherwise restrict the Seller’s performance of its obligations under the Development Agreement or the Management Agreement or of any act described in this Section 7(j) in connection with such performance); (k) no interest in the Participation is being sold by or on behalf of an “employee benefit plan” (as defined in the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated under it, “ERISA”) or constitutes directly or indirectly “Plan Assets” as defined in ERISA; and (l) within 30 days after the Closing Date, Seller shall have (i) appointed an agent pursuant to Section 9(a) for the purposes of servicing and administering the Loans, (ii) directed such agent to create and maintain a lockbox or similar arrangement pursuant to Section 9(b)(viii), (iii) duly notified and directed Obligor to make payments therein, and (iv) delivered to the Participant an executed copy of the agreement evidencing such arrangement (which agreement shall be in a form substantially similar to the form provided to the Participant by the Seller prior to the Closing Date). 8. Representations, Warranties, Acknowledgements and Agreements of the Participant. With respect to the Participation, the Participant represents and warrants to, and acknowledges and agrees with, the Seller on and as of the Closing Date that: (a) it is duly organized and validly existing in good standing under the laws of its jurisdiction of formation, and has full power and authority to execute and deliver this Agreement and all other documents executed in connection herewith, and to consummate the purchase of the Participation type contemplated hereby, and no consents, approvals of or registrations are required in connection with its purchase of any court or governmental agency or body having jurisdiction over the Participation hereunder; (b) this Agreement and any documents to be executed and delivered in connection herewith have been duly authorized by it, are valid, binding and enforceable against it in accordance with their respective terms except as the enforceability thereof may be limited by applicable bankruptcy or insolvency laws or by a court’s exercise of its equitable powers, and are not in contravention of (i) any law, rule, regulation or agreement by which the Participant Seller or any of its assets are bound Significant Subsidiaries or (ii) any of their respective properties is required for the Participant’s organizational documents; (c) it is a sophisticated buyer execution and delivery by the Seller of, and the compliance by the Seller with respect to all the Participationterms of, has adequate information concerning this Letter Agreement or the business and financial condition consummation by the Seller of the Obligor transactions contemplated hereby. (f) The Seller represents and warrants that it has implemented and it agrees that it will maintain reasonable policies and procedures, taking into consideration the Seller nature of its business, to make an informed decision ensure that material nonpublic information regarding the purchase Company of the Participation, and has independently, without reliance on the Seller and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Participant acknowledges and agrees that which employees of the Seller may possess material information be aware will not be shared with respect individuals making investment and trading decisions in relation to the Obligor and the Seller not known to the Participant (“Seller Information”), that the Participant has not requested the Seller Information and that the Seller shall have no liability to the Participant with respect to the nondisclosure of the Seller Information and the Participant hereby releases the Seller therefrom; furthermore, it acknowledges that it understands that, as described in Section 12.2 of the Development Agreement and Section 11 of the Management Agreement, the Obligor might not be obligated to perform its obligations under the respective agreements (including the Loans) if an event of default by the Seller occurs under either agreement and that, in circumstances as provided in Section 9.2.1(j) of the Development Agreement, the security interests securing the Loans may be required to be released or the payment of the Loans and the security interests securing the Loans may be required to be further subordinated; (d) notwithstanding the terms of Section 7(e) hereof, none of the Purchaser Information contradicts or is inconsistent with any representation or warranty made by the Participant in this Agreement; (e) it is not subject to withholding tax on payments under this Agreement and agrees to provide any documentation required by U.S. law or regulation or by the Seller to establish that it is exempt from U.S. withholding tax; (f) it acknowledges and agrees that none of BAS or any of its agents or affiliates has given any investment advice or rendered any opinion to you as to whether an investment in the Participation is prudent or suitable, and the Participant is not relying on any representation or warranty by BAS or any of its agents or affiliates; transactions contemplated hereby. (g) it acknowledges and agrees that none of BAS The Seller is not entering into this Letter Agreement to create actual or apparent trading activity in the Common Stock (or any security convertible into or exchangeable for Common Stock) or to manipulate the price of its agents or affiliates has provided, and will not be providing, the Participant with any material regarding the Loans, the Seller or the Obligor other than the Confidential Information Memorandum, dated January, 2007, for which BAS takes no responsibility. The Participant acknowledges that BAS is not responsible for the contents of that document. The Participant has not requested BAS Common Stock (or any of its agents security convertible into or affiliates to provide it with any other information. In addition, the Participant acknowledges that BAS may facilitate the exchange of information between it and the Seller, butexchangeable for Common Stock).

Representations, Warranties and Agreements of the Seller. With respect to the Participation, the The Seller hereby represents and warrants to, and on the Settlement Date agrees with, the Participant on and as of the Closing Date that: follows: (a) it has made no prior assignment, conveyance, transfer or grant of a participation interest in the Transferred Interest or of any interest therein and has no obligation to do so; (b) the The Seller is the sole legal and beneficial owner of the Transferred Interest, and it has good title to the Transferred Interest, free and clear of all liens and encumbrances of any kind except for liens that will be released in connection with and contemporaneously with the sale of the Participation; (c) the Seller is duly organized and validly existing in good standing under the laws of its jurisdiction of formation, and has full power and authority to execute enter into and deliver this Agreement and all other documents executed in connection herewith, perform its obligations hereunder and to consummate the sale of a Participation as contemplated hereby Transaction. This Agreement has been duly and thereby validly executed and no consentsdelivered by the Seller and constitutes the legal, approvals or registrations, other than those already obtained, are required in connection with the sale hereunder valid and the consummation binding obligation of the transaction contemplated hereby; (d) this Agreement and any documents to be executed in connection herewith have been duly authorized by itSeller, are valid, binding and enforceable against it in accordance with their respective terms its terms, except as the such enforceability thereof may be limited by applicable bankruptcy bankruptcy, insolvency, moratorium, reorganization or insolvency similar laws or by a court’s exercise of its equitable powersfrom time to time in effect that affect creditors’ rights generally, and are by legal and equitable limitations on the availability of specific remedies. (b) The execution, delivery and performance by the Seller of this Agreement and consummation by the Seller of the Transaction do not in contravention of and will not: (i) violate any lawdecree or judgment of any court or other governmental authority applicable to or binding on the Seller; (ii) violate any provision of any federal or state statute, rulerule or regulation which is, regulation to the Seller’s knowledge, applicable to the Seller; or agreement by (iii) violate any contract to which the Seller or any of its assets or properties are bound, other than any agreement which governs or secures indebtedness of the Seller that will be repaid in full in connection with and contemporaneously with the sale of the Participation or (ii) the Seller’s organizational documents; (e) it is a sophisticated seller with respect to the Participation, has adequate information concerning the business and financial condition of the Obligor to make an informed decision regarding the sale of the Participation, and has independently, without reliance upon the Participant and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Seller acknowledges and agrees that the Participant may possess material information with respect to the Obligor not known to the Seller (“Purchaser Information”), that the Seller has not requested the Purchaser Information and that the Participant shall have no liability to the Seller with respect to the non-disclosure of the Purchaser Information and the Seller hereby releases the Participant therefrom; (f) notwithstanding the terms of Section 8(c) hereof, none of the Seller Information (as defined therein) contradicts or is inconsistent with any representation or warranty made by the Seller in this Agreement; (g) as of such Closing Date, the Participation consists of the amounts as set forth on the Certificate; (h) as of such Closing Date, each of the Seller and, to . To the Seller’s knowledge, no consent or approval of, or filing with, any governmental authority or other person not a party hereto is required for the Obligor is in compliance in all material respects with the Development Agreement execution, delivery and the Management Agreement and no Event of Default performance by the Seller of this Agreement or the consummation of the Transaction, except for such consents or approvals of the Issuer required pursuant to the terms of the Warrant or any Transfer Restriction (or consent related thereto) to be obtained prior to the Settlement Date for each Transaction. (c) With respect to the Transaction, (a) the Warrant to be delivered is not and will not be as of the Settlement Date subject to any Transfer Restriction, other than the restriction that that the Warrants have not been registered under the Securities Act and, therefore, cannot be resold unless it is registered under the Securities Act or in a transaction exempt from or not subject to the registration requirements of the Securities Act (the “Permitted Securities Law Restriction”); and (b) upon the transfer of the Warrants to Purchasers, Purchasers will acquire good and marketable title thereto (assuming that Purchasers are bona fide purchasers within the meaning of Section 8-302 of the New York Uniform Commercial Code), and will be the legal and beneficial owner of such Warrants, free and clear of any Encumbrances or Transfer Restrictions, other than the Permitted Securities Law Restriction. (d) No proceedings relating to the Warrant are pending or, to the knowledge of the Seller after reasonable inquiry, threatened before any court, arbitrator or administrative or governmental body that would adversely affect the Seller’s knowledge, by right to transfer the Obligor) has occurred or is continuing with respect Warrants to the Development Agreement and Purchasers. (e) The Seller is not, as of the Management Agreement; date of this representation, an “affiliate” of the Issuer (“Affiliate”) for purposes of Rule 144 (“Rule 144”) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). Without limiting the generality of the foregoing, (i) the Seller is not an officer or director of the Issuer and (ii) the Seller does not beneficially own (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) 10% or more of the issued and outstanding shares of Preferred Stock (or, if different, the aggregate voting securities) of the Issuer. For purposes of this paragraph (f), “Seller” includes any person that would be included with the Seller for purposes of Rule 144(a)(2). (f) The Seller is not in possession of any material nonpublic information concerning the Issuer. (g) The Seller has provided or made available to the Participant on IntraLinks Purchasers a true, correct and complete copy of all Warrants No. 4 and 38 (which account for 926,410 of the Notes and the Loan Documents, in each caseWarrant Shares to be purchased hereunder), as in effect on the date hereof; (j) so long well as any principal other information and documents reasonably requested by the Purchasers, and such information provided to the Purchasers completely and accurately describes any Transfer Restrictions applicable to the Warrant. (h) If any opinion of counsel (or interest on other instrument) is required to be delivered to the Issuer pursuant to any Loan (whether Transfer Restriction or not due) shall remain unpaidotherwise in connection with the transfer of the Warrants hereunder, the Seller shall not, unless the Required Participants shall otherwise consent cause such opinion or instrument to be provided at its own expense. Notwithstanding anything herein or in writing (i) create, incur, assume or suffer to exist any security interest or other lien upon or with respect Escrow Agreement to the Loans contrary, in the event that the Issuer has not transferred the Warrants to the Purchasers within twenty (20) days from the date of this agreement, at the request of Purchasers or the Loan Documents or (ii) createSeller, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to this agreement shall be terminated without any indebtedness other than the Loans, except in each case liability to the extent reasonably required in connection with and in the ordinary course of Purchasers or the Seller’s business, the Seller’s incurrence of trade indebtedness, incurrence of obligations under operating leases, endorsement of negotiable instruments for deposit or collection, and similar transactions provided that such indebtedness shall not exceed an aggregate amount of $5,000,000 outstanding at any one time (provided, however, that nothing in this Section 7(j) shall be deemed to prohibit, limit or otherwise restrict the Seller’s performance of its obligations under the Development Agreement or the Management Agreement or of any act described in this Section 7(j) in connection with such performance); (k) no interest in the Participation is being sold by or on behalf of an “employee benefit plan” (as defined in the Employee Retirement Income Security Act of 1974, as amendedthe case may be, and the rules and regulations promulgated under it, “ERISA”) or constitutes directly or indirectly “Plan Assets” as defined in ERISA; and (l) within 30 days after the Closing Date, Seller Purchase Price shall have (i) appointed an agent be immediately returned to Purchasers pursuant to Section 9(a) for the purposes of servicing and administering the Loans, (ii) directed such agent to create and maintain a lockbox or similar arrangement pursuant to Section 9(b)(viii), (iii) duly notified and directed Obligor to make payments therein, and (iv) delivered to the Participant an executed copy of the agreement evidencing such arrangement (which agreement shall be in a form substantially similar to the form provided to the Participant by the Seller prior to the Closing Date). 8. Representations, Warranties, Acknowledgements and Agreements of the Participant. With respect to the Participation, the Participant represents and warrants to, and acknowledges and agrees with, the Seller on and as of the Closing Date that: (a) it is duly organized and validly existing in good standing under the laws of its jurisdiction of formation, and has full power and authority to execute and deliver this Agreement and all other documents executed in connection herewith, and to consummate the purchase of the Participation contemplated hereby, and no consents, approvals or registrations are required in connection with its purchase of the Participation hereunder; (b) this Agreement and any documents to be executed and delivered in connection herewith have been duly authorized by it, are valid, binding and enforceable against it in accordance with their respective terms except as the enforceability thereof may be limited by applicable bankruptcy or insolvency laws or by a court’s exercise of its equitable powers, and are not in contravention of (i) any law, rule, regulation or agreement by which the Participant or any of its assets are bound or (ii) the Participant’s organizational documents; (c) it is a sophisticated buyer with respect to the Participation, has adequate information concerning the business and financial condition of the Obligor and the Seller to make an informed decision regarding the purchase of the Participation, and has independently, without reliance on the Seller and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Participant acknowledges and agrees that the Seller may possess material information with respect to the Obligor and the Seller not known to the Participant (“Seller Information”), that the Participant has not requested the Seller Information and that the Seller shall have no liability to the Participant with respect to the nondisclosure of the Seller Information and the Participant hereby releases the Seller therefrom; furthermore, it acknowledges that it understands that, as described in Section 12.2 of the Development Agreement and Section 11 of the Management Agreement, the Obligor might not be obligated to perform its obligations under the respective agreements (including the Loans) if an event of default by the Seller occurs under either agreement and that, in circumstances as provided in Section 9.2.1(j) of the Development Agreement, the security interests securing the Loans may be required to be released or the payment of the Loans and the security interests securing the Loans may be required to be further subordinated; (d) notwithstanding the terms of Section 7(e) hereof, none of the Purchaser Information contradicts or is inconsistent with any representation or warranty made by the Participant in this Agreement; (e) it is not subject to withholding tax on payments under this Agreement and agrees to provide any documentation required by U.S. law or regulation or by the Seller to establish that it is exempt from U.S. withholding tax; (f) it acknowledges and agrees that none of BAS or any of its agents or affiliates has given any investment advice or rendered any opinion to you as to whether an investment in the Participation is prudent or suitable, and the Participant is not relying on any representation or warranty by BAS or any of its agents or affiliates; (g) it acknowledges and agrees that none of BAS or any of its agents or affiliates has provided, and will not be providing, the Participant with any material regarding the Loans, the Seller or the Obligor other than the Confidential Information Memorandum, dated January, 2007, for which BAS takes no responsibility. The Participant acknowledges that BAS is not responsible for the contents of that document. The Participant has not requested BAS or any of its agents or affiliates to provide it with any other information. In addition, the Participant acknowledges that BAS may facilitate the exchange of information between it and the Seller, butinstructions.

Representations, Warranties and Agreements of the Seller. With respect to the Participation, the The Seller represents and warrants to, and agrees with, to the Participant on and as of the Closing Date Company that: : (a) it has made no prior assignment, conveyance, transfer or grant of a participation interest in the Transferred Interest or of any interest therein and has no obligation to do so; (b) the Seller is the sole legal and beneficial owner of the Transferred Interesta corporation duly organized, and it has good title to the Transferred Interest, free and clear of all liens and encumbrances of any kind except for liens that will be released in connection with and contemporaneously with the sale of the Participation; (c) the Seller is duly organized and validly existing and in good standing under the laws of its jurisdiction the State of formationDelaware, and BA is a public limited company duly organized and validly existing under the laws of England and Wales. The Seller has full the corporate power and authority to execute and deliver this Agreement and all other documents executed in connection herewith, and to consummate the sale of a Participation as contemplated hereby and thereby and no consents, approvals or registrations, other than those already obtained, are required in connection with the sale hereunder and the consummation of the transaction contemplated hereby; (d) this Agreement and any documents to be executed in connection herewith have been duly authorized by it, are valid, binding and enforceable against it in accordance with their respective terms except as the enforceability thereof may be limited by applicable bankruptcy or insolvency laws or by a court’s exercise of its equitable powers, and are not in contravention of (i) any law, rule, regulation or agreement by which the Seller or any of its assets are bound, other than any agreement which governs or secures indebtedness of the Seller that will be repaid in full in connection with and contemporaneously with the sale of the Participation or (ii) the Seller’s organizational documents; (e) it is a sophisticated seller with respect to the Participation, has adequate information concerning the business and financial condition of the Obligor to make an informed decision regarding the sale of the Participation, and has independently, without reliance upon the Participant and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and to sell, assign, transfer and deliver the Seller acknowledges and agrees that Preferred Shares in accordance herewith. (b) Neither the Participant may possess material information with respect to execution nor the Obligor not known to delivery of this Agreement nor the Seller (“Purchaser Information”), that the Seller has not requested the Purchaser Information and that the Participant shall have no liability to the Seller with respect to the non-disclosure sale of the Purchaser Information Preferred Shares nor the Seller's or BA's performance of any of their respective covenants and agreements hereunder will, directly or indirectly,(i) contravene, conflict with, or result in a violation of the Seller hereby releases the Participant therefrom; (f) notwithstanding the terms certificate of Section 8(c) hereof, none incorporation or bylaws of the Seller Information (as defined therein) contradicts or is inconsistent with the Memorandum and Articles of Association of BA or any representation or warranty made resolution adopted by the Seller in this Agreement; (g) as Board of such Closing Date, the Participation consists of the amounts as set forth on the Certificate; (h) as of such Closing Date, each Directors of the Seller and, to the Seller’s knowledge, the Obligor is in compliance in all material respects with the Development Agreement and the Management Agreement and no Event of Default by the Seller (or, to the Seller’s knowledge, by the Obligor) has occurred or is continuing with respect to the Development Agreement and the Management AgreementBA; (i) the Seller has made available to the Participant on IntraLinks a true, correct and complete copy of all of the Notes and the Loan Documents, in each case, as in effect on the date hereof; (j) so long as any principal of or interest on any Loan (whether or not due) shall remain unpaid, the Seller shall not, unless the Required Participants shall otherwise consent in writing (i) create, incur, assume or suffer to exist any security interest or other lien upon or with respect to the Loans or the Loan Documents or (ii) createcontravene, incur, assume, guarantee or suffer to existconflict with, or otherwise become or remain liable with respect to any indebtedness other than the Loans, except result in each case to the extent reasonably required in connection with and in the ordinary course of the Seller’s business, the Seller’s incurrence of trade indebtedness, incurrence of obligations under operating leases, endorsement of negotiable instruments for deposit or collection, and similar transactions provided that such indebtedness shall not exceed an aggregate amount of $5,000,000 outstanding at any one time (provided, however, that nothing in this Section 7(j) shall be deemed to prohibit, limit or otherwise restrict the Seller’s performance of its obligations under the Development Agreement or the Management Agreement or a violation of any act described in this Section 7(j) in connection with such performance); (k) no interest in the Participation is being sold by federal, state, local, foreign, international, or on behalf of an “employee benefit plan” (as defined in the Employee Retirement Income Security Act of 1974administrative rule, as amendedlaw, and the rules and regulations promulgated under itordinance, “ERISA”) or constitutes directly or indirectly “Plan Assets” as defined in ERISA; and (l) within 30 days after the Closing Dateregulation, Seller shall have (i) appointed an agent pursuant to Section 9(a) for the purposes of servicing and administering the Loans, (ii) directed such agent to create and maintain a lockbox or similar arrangement pursuant to Section 9(b)(viii)statute, (iii) duly notified and directed Obligor contravene, conflict with, or result in a violation or breach of, or give any person the right to make payments thereinexercise any remedy under, and or accelerate the maturity or performance of, or cancel, terminate or modify any contract to which the Seller or BA is a party or by which the Seller or BA may be bound or (iv) delivered give any person the right to the Participant an executed copy prevent, delay, or otherwise interfere with any of the agreement evidencing such arrangement transactions contemplated hereby. (which agreement shall be in a form substantially similar to the form provided to the Participant by the Seller c) Immediately prior to the Closing Date(as defined below). 8. Representations, Warranties, Acknowledgements and Agreements of the Participant. With respect to the Participation, the Participant represents and warrants to, and acknowledges and agrees with, the Seller on will have good and as valid title to the Preferred Shares, free and clear of all liens, encumbrances, equities or claims (other than pursuant to the Investment Agreement and this Agreement); and, upon delivery of the Closing Date that: (a) it is duly organized Preferred Shares and validly existing in payment therefor pursuant hereto, good standing under the laws of its jurisdiction of formation, and has full power and authority to execute and deliver this Agreement and all other documents executed in connection herewith, and to consummate the purchase of the Participation contemplated hereby, and no consents, approvals or registrations are required in connection with its purchase of the Participation hereunder; (b) this Agreement and any documents to be executed and delivered in connection herewith have been duly authorized by it, are valid, binding and enforceable against it in accordance with their respective terms except as the enforceability thereof may be limited by applicable bankruptcy or insolvency laws or by a court’s exercise of its equitable powers, and are not in contravention of (i) any law, rule, regulation or agreement by which the Participant or any of its assets are bound or (ii) the Participant’s organizational documents; (c) it is a sophisticated buyer with respect valid title to the ParticipationPreferred Shares, has adequate information concerning the business free and financial condition clear of the Obligor and the Seller to make an informed decision regarding the purchase of the Participationall liens, and has independentlyencumbrances, without reliance on the Seller and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Participant acknowledges and agrees that the Seller may possess material information with respect equities or claims will pass to the Obligor and the Seller not known to the Participant (“Seller Information”), that the Participant has not requested the Seller Information and that the Seller shall have no liability to the Participant with respect to the nondisclosure of the Seller Information and the Participant hereby releases the Seller therefrom; furthermore, it acknowledges that it understands that, as described in Section 12.2 of the Development Agreement and Section 11 of the Management Agreement, the Obligor might not be obligated to perform its obligations under the respective agreements (including the Loans) if an event of default by the Seller occurs under either agreement and that, in circumstances as provided in Section 9.2.1(j) of the Development Agreement, the security interests securing the Loans may be required to be released or the payment of the Loans and the security interests securing the Loans may be required to be further subordinated; Company. (d) notwithstanding the terms of Section 7(e) hereof, none All sales by Seller or BA of the Purchaser Information contradicts shares of common stock, par value $1.00 per share, of the Company (the "Common Stock") into which the shares of the Series F Preferred Stock that are not being sold and purchased hereunder (the "Remaining Series F Shares") are convertible (the "Common Shares"), shall be made pursuant to an exemption from the registration requirements of the Securities Act of 1933 or is inconsistent with any representation or warranty made by the Participant in this Agreement; (e) it is not subject pursuant to withholding tax on payments an effective registration statement under this Agreement and agrees to provide any documentation required by U.S. law or regulation or by the Seller to establish that it is exempt from U.S. withholding tax; (f) it acknowledges and agrees that none of BAS or any of its agents or affiliates has given any investment advice or rendered any opinion to you as to whether an investment in the Participation is prudent or suitable, and the Participant is not relying on any representation or warranty by BAS or any of its agents or affiliates; (g) it acknowledges and agrees that none of BAS or any of its agents or affiliates has provided, and will not be providing, the Participant with any material regarding the Loans, the Seller or the Obligor other than the Confidential Information Memorandum, dated January, 2007, for which BAS takes no responsibility. The Participant acknowledges that BAS is not responsible for the contents of that document. The Participant has not requested BAS or any of its agents or affiliates to provide it with any other information. In addition, the Participant acknowledges that BAS may facilitate the exchange of information between it and the Seller, butsuch act.

Representations, Warranties and Agreements of the Seller. With respect to the Participation, the The Seller represents and warrants to, and agrees with, the Participant on and Company as of the Closing Date that: follows: (a) The Seller acknowledges and agrees that it is not relying, and has not relied, upon the Company or any affiliate of the Company with respect to the legal, accounting, tax or other implications of this Letter Agreement and that it has made no prior assignmentconducted its own analyses of the legal, conveyanceaccounting, transfer tax and other implications hereof. The Seller further acknowledges and agrees that neither the Company nor any affiliate of the Company has acted as its advisor in any capacity in connection with this Letter Agreement or grant the transactions contemplated hereby. The Seller is entering into this Letter Agreement with a full understanding of a participation interest all of the terms and risks hereof (economic and otherwise), has adequate expertise in the Transferred Interest or financial matters to evaluate those terms and risks and is capable of any interest therein assuming (financially and has no obligation to do so; otherwise) those risks. (b) the The Seller is the sole legal and beneficial owner of the Transferred Interest, and it has good title to the Transferred Interest, free and clear of all liens and encumbrances of any kind except for liens that will be released in connection with and contemporaneously with the sale of the Participation; (c) the Seller is duly organized and validly existing in good standing under the laws of its jurisdiction of formation, and has full corporate power and authority to execute and deliver enter into this Letter Agreement and all other documents executed in connection herewith, and to consummate the sale transactions contemplated hereby. This Letter Agreement has been duly authorized and validly executed and delivered by the Seller and constitutes a valid and legally binding obligation of a Participation as contemplated hereby the Seller, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and thereby similar laws affecting creditors’ rights generally and no consentsto general equitable principles. (c) The execution and delivery by the Seller of, approvals or registrationsand the compliance by the Seller with all of the provisions of, other than those already obtained, are required in connection with the sale hereunder this Letter Agreement and the consummation of the transaction transactions herein contemplated hereby; (d) this Agreement and will not conflict with or result in a breach of any documents of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or any other agreement or instrument to be executed in connection herewith have been duly authorized by it, are valid, binding and enforceable against it in accordance with their respective terms except as which the enforceability thereof may be limited by applicable bankruptcy Seller or insolvency laws or by a court’s exercise any of its equitable powers, and are not in contravention of (i) any law, rule, regulation subsidiaries is a party or agreement by which the Seller or any of its subsidiaries is bound or to which any of the property or assets are bound, other than any agreement which governs or secures indebtedness of the Seller that will be repaid in full in connection with and contemporaneously with the sale of the Participation or (ii) the Seller’s organizational documents; (e) it is a sophisticated seller with respect to the Participation, has adequate information concerning the business and financial condition of the Obligor to make an informed decision regarding the sale of the Participation, and has independently, without reliance upon the Participant and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Seller acknowledges and agrees that the Participant may possess material information with respect to the Obligor not known to the Seller (“Purchaser Information”), that the Seller has not requested the Purchaser Information and that the Participant shall have no liability to the Seller with respect to the non-disclosure of the Purchaser Information and the Seller hereby releases the Participant therefrom; (f) notwithstanding the terms of Section 8(c) hereof, none of the Seller Information (as defined therein) contradicts or is inconsistent with any representation or warranty made by the Seller in this Agreement; (g) as of such Closing Date, the Participation consists of the amounts as set forth on the Certificate; (h) as of such Closing Date, each of the Seller and, to the Seller’s knowledge, the Obligor is in compliance in all material respects with the Development Agreement and the Management Agreement and no Event of Default by the Seller (or, to the Seller’s knowledge, by the Obligor) has occurred or is continuing with respect to the Development Agreement and the Management Agreement; (i) the Seller has made available to the Participant on IntraLinks a true, correct and complete copy of all of the Notes and the Loan Documents, in each case, as in effect on the date hereof; (j) so long as any principal of or interest on any Loan (whether or not due) shall remain unpaid, the Seller shall not, unless the Required Participants shall otherwise consent in writing (i) create, incur, assume or suffer to exist any security interest or other lien upon or with respect to the Loans or the Loan Documents or (ii) create, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to any indebtedness other than the Loans, except in each case to the extent reasonably required in connection with and in the ordinary course of the Seller’s business, the Seller’s incurrence of trade indebtedness, incurrence of obligations under operating leases, endorsement of negotiable instruments for deposit or collection, and similar transactions provided that such indebtedness shall not exceed an aggregate amount of $5,000,000 outstanding at any one time (provided, however, that nothing in this Section 7(j) shall be deemed to prohibit, limit or otherwise restrict the Seller’s performance of its obligations under the Development Agreement or the Management Agreement or of any act described in this Section 7(j) in connection with such performance); (k) no interest in the Participation is being sold by or on behalf of an “employee benefit plan” (as defined in the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated under it, “ERISA”) or constitutes directly or indirectly “Plan Assets” as defined in ERISA; and (l) within 30 days after the Closing Date, Seller shall have (i) appointed an agent pursuant to Section 9(a) for the purposes of servicing and administering the Loans, (ii) directed such agent to create and maintain a lockbox or similar arrangement pursuant to Section 9(b)(viii), (iii) duly notified and directed Obligor to make payments therein, and (iv) delivered to the Participant an executed copy of the agreement evidencing such arrangement (which agreement shall be in a form substantially similar to the form provided to the Participant by the Seller prior to the Closing Date). 8. Representations, Warranties, Acknowledgements and Agreements of the Participant. With respect to the Participation, the Participant represents and warrants to, and acknowledges and agrees with, the Seller on and as of the Closing Date that: (a) it is duly organized and validly existing in good standing under the laws of its jurisdiction of formation, and has full power and authority to execute and deliver this Agreement and all other documents executed in connection herewith, and to consummate the purchase of the Participation contemplated hereby, and no consents, approvals or registrations are required in connection with its purchase of the Participation hereunder; (b) this Agreement and any documents to be executed and delivered in connection herewith have been duly authorized by it, are valid, binding and enforceable against it in accordance with their respective terms except as the enforceability thereof may be limited by applicable bankruptcy or insolvency laws or by a court’s exercise of its equitable powers, and are not in contravention of (i) any law, rule, regulation or agreement by which the Participant or any of its assets are bound or (ii) the Participant’s organizational documents; (c) it subsidiaries is a sophisticated buyer with respect to the Participationsubject, has adequate information concerning the business and financial condition nor will such action result in any violation of the Obligor and the Seller to make an informed decision regarding the purchase provisions of the Participation, and has independently, without reliance on the Seller and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Participant acknowledges and agrees that the Seller may possess material information with respect to the Obligor and the Seller not known to the Participant (“Seller Information”), that the Participant has not requested the Seller Information and that the Seller shall have no liability to the Participant with respect to the nondisclosure constitutive documents of the Seller Information and the Participant hereby releases or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Seller therefrom; furthermore, it acknowledges that it understands that, as described in Section 12.2 of the Development Agreement and Section 11 of the Management Agreement, the Obligor might not be obligated to perform its obligations under the respective agreements (including the Loans) if an event of default by the Seller occurs under either agreement and that, in circumstances as provided in Section 9.2.1(j) of the Development Agreement, the security interests securing the Loans may be required to be released or the payment of the Loans and the security interests securing the Loans may be required to be further subordinated; (d) notwithstanding the terms of Section 7(e) hereof, none of the Purchaser Information contradicts or is inconsistent with any representation or warranty made by the Participant in this Agreement; (e) it is not subject to withholding tax on payments under this Agreement and agrees to provide any documentation required by U.S. law or regulation or by the Seller to establish that it is exempt from U.S. withholding tax; (f) it acknowledges and agrees that none of BAS or any of its agents subsidiaries or affiliates has given any investment advice of their respective properties. (d) No consent, approval, authorization, order, registration, qualification or rendered filing of or with any opinion to you as to whether an investment in court or governmental agency or body having jurisdiction over the Participation is prudent or suitable, and the Participant is not relying on any representation or warranty by BAS Seller or any of its agents or affiliates; (g) it acknowledges and agrees that none of BAS subsidiaries or any of its agents or affiliates has providedtheir respective properties is required for the execution and delivery by the Seller of, and will not be providing, the Participant with any material regarding the Loans, compliance by the Seller with all the terms of, this Letter Agreement or the Obligor other than consummation by the Confidential Information Memorandum, dated January, 2007, for which BAS takes no responsibility. The Participant acknowledges that BAS is not responsible for Seller of the contents of that document. The Participant has not requested BAS or any of its agents or affiliates to provide it with any other information. In addition, the Participant acknowledges that BAS may facilitate the exchange of information between it and the Seller, buttransactions contemplated hereby.

Representations, Warranties and Agreements of the Seller. With respect to the ParticipationThe Seller hereby represents, the Seller represents and warrants to, and agrees with, the Participant on and as of the Closing Date that: : (a) it has made no prior assignment, conveyance, transfer or grant of a participation interest in the Transferred Interest or of any interest therein and has no obligation to do so; (b) the The Seller is the sole legal and beneficial owner of the Transferred Interest, and it has good title to the Transferred Interest, free and clear of all liens and encumbrances of any kind except for liens that will be released in connection with and contemporaneously with the sale of the Participation; (c) the Seller is duly organized and validly existing in good standing under the laws of its jurisdiction of formation, and has full power and authority to execute and deliver enter into this Agreement and all other documents executed in connection herewith, and to consummate the sale of a Participation as contemplated hereby Transaction. This Agreement has been duly and thereby validly executed and no consentsdelivered by the Seller and constitutes the legal, approvals or registrations, other than those already obtained, are required in connection with the sale hereunder valid and the consummation binding obligation of the transaction contemplated hereby; (d) this Agreement and any documents to be executed in connection herewith have been duly authorized by itSeller, are valid, binding and enforceable against it in accordance with their respective terms its terms, except as the such enforceability thereof may be limited by applicable bankruptcy bankruptcy, insolvency, moratorium, reorganization or insolvency similar laws or by a court’s exercise of its equitable powersfrom time to time in effect that affect creditors’ rights generally, and are by legal and equitable limitations on the availability of specific remedies. (b) The execution, delivery and performance by the Seller of this Agreement and consummation by the Seller of the Transaction does not in contravention of and will not: (i) violate the organizational documents of the Seller; (ii) violate any lawdecree or judgment of any court or other governmental authority applicable to or binding on the Seller or any of its assets or properties; (iii) violate any provision of any federal or state statute, rule, rule or regulation which is applicable to the Seller; or agreement by (iv) violate any contract to which the Seller or any of its assets or properties are bound. No consent or approval of, or filing with, any governmental authority or other than any agreement which governs person not a party hereto is required for the execution, delivery and performance by the Seller of this Agreement or secures indebtedness the consummation of the Seller that will be repaid in full in connection with and contemporaneously with Transaction. (c) With respect to the sale Transaction: (i) except for the record ownership of the Participation or Equity Interests by the Laurus Entities on the books and records of the Purchaser, the Seller is the sole record and beneficial owner of the Equity Interests, free and clear of any taxes and Encumbrances; and (ii) upon the Sellertransfer of the Equity Interests to the Purchaser, the Purchaser will acquire good and marketable title thereto, and will be the legal and beneficial owner of such Equity Interests, free and clear of any and all Encumbrances. (d) The Seller has taken no action that would give rise to any claim by any person for brokerage commissions, finder’s organizational documents; fees or similar payments relating to this Agreement or the Transaction. (e) it is a sophisticated seller with respect No proceedings relating to the Participation, has adequate information concerning the business and financial condition of the Obligor to make an informed decision regarding the sale of the Participation, and has independently, without reliance upon the Participant and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Seller acknowledges and agrees that the Participant may possess material information with respect to the Obligor not known to the Seller (“Purchaser Information”), that the Seller has not requested the Purchaser Information and that the Participant shall have no liability to the Seller with respect to the non-disclosure of the Purchaser Information and the Seller hereby releases the Participant therefrom; (f) notwithstanding the terms of Section 8(c) hereof, none of the Seller Information (as defined therein) contradicts or is inconsistent with any representation or warranty made by the Seller in this Agreement; (g) as of such Closing Date, the Participation consists of the amounts as set forth on the Certificate; (h) as of such Closing Date, each of the Seller and, to the Seller’s knowledge, the Obligor is in compliance in all material respects with the Development Agreement and the Management Agreement and no Event of Default by the Seller (Equity Interests are pending or, to the Seller’s knowledge, by the Obligor) has occurred or is continuing with respect to the Development Agreement and the Management Agreement; (i) the Seller has made available to the Participant on IntraLinks a true, correct and complete copy of all of the Notes and the Loan Documents, in each case, as in effect on the date hereof; (j) so long as any principal of or interest on any Loan (whether or not due) shall remain unpaid, the Seller shall not, unless the Required Participants shall otherwise consent in writing (i) create, incur, assume or suffer to exist any security interest or other lien upon or with respect to the Loans or the Loan Documents or (ii) create, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to any indebtedness other than the Loans, except in each case to the extent reasonably required in connection with and in the ordinary course knowledge of the Seller’s business, threatened before any court, arbitrator or administrative or governmental body that would adversely affect the Seller’s incurrence of trade indebtedness, incurrence of obligations under operating leases, endorsement of negotiable instruments for deposit or collection, and similar transactions provided that such indebtedness shall not exceed an aggregate amount of $5,000,000 outstanding at any one time (provided, however, that nothing in this Section 7(j) shall be deemed right to prohibit, limit or otherwise restrict transfer the Seller’s performance of its obligations under the Development Agreement or the Management Agreement or of any act described in this Section 7(j) in connection with such performance); (k) no interest in the Participation is being sold by or on behalf of an “employee benefit plan” (as defined in the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated under it, “ERISA”) or constitutes directly or indirectly “Plan Assets” as defined in ERISA; and (l) within 30 days after the Closing Date, Seller shall have (i) appointed an agent pursuant to Section 9(a) for the purposes of servicing and administering the Loans, (ii) directed such agent to create and maintain a lockbox or similar arrangement pursuant to Section 9(b)(viii), (iii) duly notified and directed Obligor to make payments therein, and (iv) delivered Equity Interests to the Participant an executed copy of the agreement evidencing such arrangement (which agreement shall be in a form substantially similar to the form provided to the Participant by the Seller prior to the Closing Date). 8. Representations, Warranties, Acknowledgements and Agreements of the Participant. With respect to the Participation, the Participant represents and warrants to, and acknowledges and agrees with, the Seller on and as of the Closing Date that: (a) it is duly organized and validly existing in good standing under the laws of its jurisdiction of formation, and has full power and authority to execute and deliver this Agreement and all other documents executed in connection herewith, and to consummate the purchase of the Participation contemplated hereby, and no consents, approvals or registrations are required in connection with its purchase of the Participation hereunder; (b) this Agreement and any documents to be executed and delivered in connection herewith have been duly authorized by it, are valid, binding and enforceable against it in accordance with their respective terms except as the enforceability thereof may be limited by applicable bankruptcy or insolvency laws or by a court’s exercise of its equitable powers, and are not in contravention of (i) any law, rule, regulation or agreement by which the Participant or any of its assets are bound or (ii) the Participant’s organizational documents; (c) it is a sophisticated buyer with respect to the Participation, has adequate information concerning the business and financial condition of the Obligor and the Seller to make an informed decision regarding the purchase of the Participation, and has independently, without reliance on the Seller and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Participant acknowledges and agrees that the Seller may possess material information with respect to the Obligor and the Seller not known to the Participant (“Seller Information”), that the Participant has not requested the Seller Information and that the Seller shall have no liability to the Participant with respect to the nondisclosure of the Seller Information and the Participant hereby releases the Seller therefrom; furthermore, it acknowledges that it understands that, as described in Section 12.2 of the Development Agreement and Section 11 of the Management Agreement, the Obligor might not be obligated to perform its obligations under the respective agreements (including the Loans) if an event of default by the Seller occurs under either agreement and that, in circumstances as provided in Section 9.2.1(j) of the Development Agreement, the security interests securing the Loans may be required to be released or the payment of the Loans and the security interests securing the Loans may be required to be further subordinated; (d) notwithstanding the terms of Section 7(e) hereof, none of the Purchaser Information contradicts or is inconsistent with any representation or warranty made by the Participant in this Agreement; (e) it is not subject to withholding tax on payments under this Agreement and agrees to provide any documentation required by U.S. law or regulation or by the Seller to establish that it is exempt from U.S. withholding tax; (f) it acknowledges and agrees that none of BAS or any of its agents or affiliates has given any investment advice or rendered any opinion to you as to whether an investment in the Participation is prudent or suitable, and the Participant is not relying on any representation or warranty by BAS or any of its agents or affiliates; (g) it acknowledges and agrees that none of BAS or any of its agents or affiliates has provided, and will not be providing, the Participant with any material regarding the Loans, the Seller or the Obligor other than the Confidential Information Memorandum, dated January, 2007, for which BAS takes no responsibility. The Participant acknowledges that BAS is not responsible for the contents of that document. The Participant has not requested BAS or any of its agents or affiliates to provide it with any other information. In addition, the Participant acknowledges that BAS may facilitate the exchange of information between it and the Seller, butPurchaser.

Representations, Warranties and Agreements of the Seller. With respect to the Participation, the The Seller represents and warrants to, and agrees with, the Participant on and Company as of the Closing Date that: follows: (a) The Seller acknowledges and agrees that it is not relying, and has not relied, upon the Company or any affiliate of the Company with respect to the legal, accounting, tax or other implications of this Letter Agreement and that it has made no prior assignmentconducted its own analyses of the legal, conveyanceaccounting, transfer tax and other implications hereof. The Seller further acknowledges and agrees that neither the Company nor any affiliate of the Company has acted as its advisor in any capacity in connection with this Letter Agreement or grant the transactions contemplated hereby. The Seller is entering into this Letter Agreement with a full understanding of a participation interest all of the terms and risks hereof (economic and otherwise), has adequate expertise in the Transferred Interest or financial matters to evaluate those terms and risks and is capable of any interest therein assuming (financially and has no obligation to do so; otherwise) those risks. (b) the The Seller is the sole legal and beneficial owner of the Transferred Interest, and it has good title to the Transferred Interest, free and clear of all liens and encumbrances of any kind except for liens that will be released in connection with and contemporaneously with the sale of the Participation; (c) the Seller is duly organized and validly existing in good standing under the laws of its jurisdiction of formation, and has full power and authority to execute and deliver enter into this Letter Agreement and all other documents executed in connection herewith, and to consummate the sale transactions contemplated hereby. This Letter Agreement has been duly authorized and validly executed and delivered by the Seller and constitutes a valid and legally binding obligation of a Participation as contemplated hereby the Seller, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and thereby similar laws affecting creditors' rights generally and no consentsto general equitable principles. (c) The execution and delivery by the Seller of, approvals or registrationsand the compliance by the Seller with all of the provisions of, other than those already obtained, are required in connection with the sale hereunder this Letter Agreement and the consummation of the transaction transactions herein contemplated hereby; (d) this Agreement and will not conflict with or result in a breach of any documents of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or any other agreement or instrument to be executed in connection herewith have been duly authorized by it, are valid, binding and enforceable against it in accordance with their respective terms except as which the enforceability thereof may be limited by applicable bankruptcy Seller or insolvency laws or by a court’s exercise any of its equitable powers, and are not in contravention of (i) any law, rule, regulation subsidiaries is a party or agreement by which the Seller or any of its subsidiaries is bound or to which any of the property or assets are bound, other than any agreement which governs or secures indebtedness of the Seller that will be repaid in full in connection with and contemporaneously with the sale of the Participation or (ii) the Seller’s organizational documents; (e) it is a sophisticated seller with respect to the Participation, has adequate information concerning the business and financial condition of the Obligor to make an informed decision regarding the sale of the Participation, and has independently, without reliance upon the Participant and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Seller acknowledges and agrees that the Participant may possess material information with respect to the Obligor not known to the Seller (“Purchaser Information”), that the Seller has not requested the Purchaser Information and that the Participant shall have no liability to the Seller with respect to the non-disclosure of the Purchaser Information and the Seller hereby releases the Participant therefrom; (f) notwithstanding the terms of Section 8(c) hereof, none of the Seller Information (as defined therein) contradicts or is inconsistent with any representation or warranty made by the Seller in this Agreement; (g) as of such Closing Date, the Participation consists of the amounts as set forth on the Certificate; (h) as of such Closing Date, each of the Seller and, to the Seller’s knowledge, the Obligor is in compliance in all material respects with the Development Agreement and the Management Agreement and no Event of Default by the Seller (or, to the Seller’s knowledge, by the Obligor) has occurred or is continuing with respect to the Development Agreement and the Management Agreement; (i) the Seller has made available to the Participant on IntraLinks a true, correct and complete copy of all of the Notes and the Loan Documents, in each case, as in effect on the date hereof; (j) so long as any principal of or interest on any Loan (whether or not due) shall remain unpaid, the Seller shall not, unless the Required Participants shall otherwise consent in writing (i) create, incur, assume or suffer to exist any security interest or other lien upon or with respect to the Loans or the Loan Documents or (ii) create, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to any indebtedness other than the Loans, except in each case to the extent reasonably required in connection with and in the ordinary course of the Seller’s business, the Seller’s incurrence of trade indebtedness, incurrence of obligations under operating leases, endorsement of negotiable instruments for deposit or collection, and similar transactions provided that such indebtedness shall not exceed an aggregate amount of $5,000,000 outstanding at any one time (provided, however, that nothing in this Section 7(j) shall be deemed to prohibit, limit or otherwise restrict the Seller’s performance of its obligations under the Development Agreement or the Management Agreement or of any act described in this Section 7(j) in connection with such performance); (k) no interest in the Participation is being sold by or on behalf of an “employee benefit plan” (as defined in the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated under it, “ERISA”) or constitutes directly or indirectly “Plan Assets” as defined in ERISA; and (l) within 30 days after the Closing Date, Seller shall have (i) appointed an agent pursuant to Section 9(a) for the purposes of servicing and administering the Loans, (ii) directed such agent to create and maintain a lockbox or similar arrangement pursuant to Section 9(b)(viii), (iii) duly notified and directed Obligor to make payments therein, and (iv) delivered to the Participant an executed copy of the agreement evidencing such arrangement (which agreement shall be in a form substantially similar to the form provided to the Participant by the Seller prior to the Closing Date). 8. Representations, Warranties, Acknowledgements and Agreements of the Participant. With respect to the Participation, the Participant represents and warrants to, and acknowledges and agrees with, the Seller on and as of the Closing Date that: (a) it is duly organized and validly existing in good standing under the laws of its jurisdiction of formation, and has full power and authority to execute and deliver this Agreement and all other documents executed in connection herewith, and to consummate the purchase of the Participation contemplated hereby, and no consents, approvals or registrations are required in connection with its purchase of the Participation hereunder; (b) this Agreement and any documents to be executed and delivered in connection herewith have been duly authorized by it, are valid, binding and enforceable against it in accordance with their respective terms except as the enforceability thereof may be limited by applicable bankruptcy or insolvency laws or by a court’s exercise of its equitable powers, and are not in contravention of (i) any law, rule, regulation or agreement by which the Participant or any of its assets are bound or (ii) the Participant’s organizational documents; (c) it subsidiaries is a sophisticated buyer with respect to the Participationsubject, has adequate information concerning the business and financial condition nor will such action result in any violation of the Obligor and the Seller to make an informed decision regarding the purchase provisions of the Participation, and has independently, without reliance on the Seller and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Participant acknowledges and agrees that the Seller may possess material information with respect to the Obligor and the Seller not known to the Participant (“Seller Information”), that the Participant has not requested the Seller Information and that the Seller shall have no liability to the Participant with respect to the nondisclosure constitutive documents of the Seller Information and the Participant hereby releases or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Seller therefrom; furthermore, it acknowledges that it understands that, as described in Section 12.2 of the Development Agreement and Section 11 of the Management Agreement, the Obligor might not be obligated to perform its obligations under the respective agreements (including the Loans) if an event of default by the Seller occurs under either agreement and that, in circumstances as provided in Section 9.2.1(j) of the Development Agreement, the security interests securing the Loans may be required to be released or the payment of the Loans and the security interests securing the Loans may be required to be further subordinated; (d) notwithstanding the terms of Section 7(e) hereof, none of the Purchaser Information contradicts or is inconsistent with any representation or warranty made by the Participant in this Agreement; (e) it is not subject to withholding tax on payments under this Agreement and agrees to provide any documentation required by U.S. law or regulation or by the Seller to establish that it is exempt from U.S. withholding tax; (f) it acknowledges and agrees that none of BAS or any of its agents or affiliates has given any investment advice or rendered any opinion to you as to whether an investment in the Participation is prudent or suitable, and the Participant is not relying on any representation or warranty by BAS subsidiaries or any of its agents or affiliates; (g) it acknowledges and agrees that none of BAS or any of its agents or affiliates has provided, and will not be providing, the Participant with any material regarding the Loans, the Seller or the Obligor other than the Confidential Information Memorandum, dated January, 2007, for which BAS takes no responsibility. The Participant acknowledges that BAS is not responsible for the contents of that document. The Participant has not requested BAS or any of its agents or affiliates to provide it with any other information. In addition, the Participant acknowledges that BAS may facilitate the exchange of information between it and the Seller, buttheir respective properties.

Representations, Warranties and Agreements of the Seller. With respect to the Participation, the Seller represents and warrants to, and agrees with, the Participant on and as of the Closing Date that: : (a) it has made no prior assignment, conveyance, transfer or grant of a participation interest in the Transferred Interest or of any interest therein and has no obligation to do so; ; (b) the Seller is the sole legal and beneficial owner of the Transferred Interest, and it has good title to the Transferred Interest, free and clear of all liens and encumbrances of any kind except for liens that will be released in connection with and contemporaneously with the sale of the Participation; ; (c) the Seller is duly organized and validly existing in good standing under the laws of its jurisdiction of formation, and has full power and authority to execute and deliver this Agreement and all other documents executed in connection herewith, and to consummate the sale of a Participation as contemplated hereby and thereby and no consents, approvals or registrations, other than those already obtained, are required in connection with the sale hereunder and the consummation of the transaction contemplated hereby; ; (d) this Agreement and any documents to be executed in connection herewith have been duly authorized by it, are valid, binding and enforceable against it in accordance with their respective terms except as the enforceability thereof may be limited by applicable bankruptcy or insolvency laws or by a court’s exercise of its equitable powers, and are not in contravention of (i) any law, rule, regulation or agreement by which the Seller or any of its assets are bound, other than any agreement which governs or secures indebtedness of the Seller that will be repaid in full in connection with and contemporaneously with the sale of the Participation or (ii) the Seller’s organizational documents; ; (e) it is a sophisticated seller with respect to the Participation, has adequate information concerning the business and financial condition of the Obligor to make an informed decision regarding the sale of the Participation, and has independently, without reliance upon the Participant and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Seller acknowledges and agrees that the Participant may possess material information with respect to the Obligor not known to the Seller (“Purchaser Information”), that the Seller has not requested the Purchaser Information and that the Participant shall have no liability to the Seller with respect to the non-disclosure of the Purchaser Information and the Seller hereby releases the Participant therefrom; ; (f) notwithstanding the terms of Section 8(c) hereof, none of the Seller Information (as defined therein) contradicts or is inconsistent with any representation or warranty made by the Seller in this Agreement; ; (g) as of such Closing Date, the Participation consists of the amounts as set forth on the Certificate; ; (h) as of such Closing Date, each of the Seller and, to the Seller’s knowledge, the Obligor is in compliance in all material respects with the Development Agreement and the Management Agreement and no Event of Default by the Seller (or, to the Seller’s knowledge, by the Obligor) has occurred or is continuing with respect to the Development Agreement and the Management Agreement; ; (i) the Seller has made available to the Participant on IntraLinks a true, correct and complete copy of all of the Notes and the Loan Documents, in each case, as in effect on the date hereof; ; (j) so long as any principal of or interest on any Loan (whether or not due) shall remain unpaid, the Seller shall not, unless the Required Participants shall otherwise consent in writing (i) create, incur, assume or suffer to exist any security interest or other lien upon or with respect to the Loans or the Loan Documents or (ii) create, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to any indebtedness other than the Loans, except in each case to the extent reasonably required in connection with and in the ordinary course of the Seller’s business, the Seller’s incurrence of trade indebtedness, incurrence of obligations under operating leases, endorsement of negotiable instruments for deposit or collection, and similar transactions provided that such indebtedness shall not exceed an aggregate amount of $5,000,000 outstanding at any one time (provided, however, that nothing in this Section 7(j) shall be deemed to prohibit, limit or otherwise restrict the Seller’s performance of its obligations under the Development Agreement or the Management Agreement or of any act described in this Section 7(j) in connection with such performance); ; (k) no interest in the Participation is being sold by or on behalf of an “employee benefit plan” (as defined in the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated under it, “ERISA”) or constitutes directly or indirectly “Plan Assets” as defined in ERISA; and and (l) within 30 days after the Closing Date, Seller shall have (i) appointed an agent pursuant to Section 9(a) for the purposes of servicing and administering the Loans, (ii) directed such agent to create and maintain a lockbox or similar arrangement pursuant to Section 9(b)(viii), (iii) duly notified and directed Obligor to make payments therein, and (iv) delivered to the Participant an executed copy of the agreement evidencing such arrangement (which agreement shall be in a form substantially similar to the form provided to the Participant by the Seller prior to the Closing Date). 8. Representations, Warranties, Acknowledgements and Agreements of the Participant. With respect to the Participation, the Participant represents and warrants to, and acknowledges and agrees with, the Seller on and as of the Closing Date that: (a) it is duly organized and validly existing in good standing under the laws of its jurisdiction of formation, and has full power and authority to execute and deliver this Agreement and all other documents executed in connection herewith, and to consummate the purchase of the Participation contemplated hereby, and no consents, approvals or registrations are required in connection with its purchase of the Participation hereunder; (b) this Agreement and any documents to be executed and delivered in connection herewith have been duly authorized by it, are valid, binding and enforceable against it in accordance with their respective terms except as the enforceability thereof may be limited by applicable bankruptcy or insolvency laws or by a court’s exercise of its equitable powers, and are not in contravention of (i) any law, rule, regulation or agreement by which the Participant or any of its assets are bound or (ii) the Participant’s organizational documents; (c) it is a sophisticated buyer with respect to the Participation, has adequate information concerning the business and financial condition of the Obligor and the Seller to make an informed decision regarding the purchase of the Participation, and has independently, without reliance on the Seller and based on such information as it deemed appropriate, made its own analysis and decision to enter into this Agreement and the Participant acknowledges and agrees that the Seller may possess material information with respect to the Obligor and the Seller not known to the Participant (“Seller Information”), that the Participant has not requested the Seller Information and that the Seller shall have no liability to the Participant with respect to the nondisclosure of the Seller Information and the Participant hereby releases the Seller therefrom; furthermore, it acknowledges that it understands that, as described in Section 12.2 of the Development Agreement and Section 11 of the Management Agreement, the Obligor might not be obligated to perform its obligations under the respective agreements (including the Loans) if an event of default by the Seller occurs under either agreement and that, in circumstances as provided in Section 9.2.1(j) of the Development Agreement, the security interests securing the Loans may be required to be released or the payment of the Loans and the security interests securing the Loans may be required to be further subordinated; (d) notwithstanding the terms of Section 7(e) hereof, none of the Purchaser Information contradicts or is inconsistent with any representation or warranty made by the Participant in this Agreement; (e) it is not subject to withholding tax on payments under this Agreement and agrees to provide any documentation required by U.S. law or regulation or by the Seller to establish that it is exempt from U.S. withholding tax; (f) it acknowledges and agrees that none of BAS or any of its agents or affiliates has given any investment advice or rendered any opinion to you as to whether an investment in the Participation is prudent or suitable, and the Participant is not relying on any representation or warranty by BAS or any of its agents or affiliates; (g) it acknowledges and agrees that none of BAS or any of its agents or affiliates has provided, and will not be providing, the Participant with any material regarding the Loans, the Seller or the Obligor other than the Confidential Information Memorandum, dated January, 2007, for which BAS takes no responsibility. The Participant acknowledges that BAS is not responsible for the contents of that document. The Participant has not requested BAS or any of its agents or affiliates to provide it with any other information. In addition, the Participant acknowledges that BAS may facilitate the exchange of information between it and the Seller, but.