If the 25th Floor shall not be available for Tenant’s occupancy on the Anticipated 25th Floor Delivery Date for any reason not within the control of Landlord, including the holding over of the prior tenant, then Landlord and Tenant agree that the failure to have the 25th Floor available for occupancy by Tenant shall in no way affect the validity of the Lease or the inclusion of the 25th Floor in the Premises or the obligations of Landlord or Tenant under the Lease, nor shall the same be construed in any way to extend the term of the Lease or impose any liability on Landlord, and for the purpose of this Rider Section 3, the 25th Floor Delivery Date shall be deferred to and shall be the date the 25th Floor is delivered to Tenant in the delivery condition herein. The provisions of this Rider [Section 3(f)(i)] are intended to constitute “an express provision to the contrary” within the meaning of Section 223-a of the New York Real Property Law.

Failure to Deliver Common Stock Prior to Deadline. Without in any way limiting the Holder’s right to pursue other remedies, including actual damages and/or equitable relief, the parties agree that if delivery of the Common Stock issuable upon conversion of this Note is more than two (2) business days after the Deadline the Borrower shall pay to the Holder $1,000 per day in cash or stock under the terms of this Note, for each day beyond the Deadline that the Borrower fails to deliver such Common Stock. Such cash amount shall be paid to Holder by the fifth (5th) day of the month following the month in which it has accrued or, at the option of the Holder (by written notice to the Borrower by the first day of the month following the month in which it has accrued), shall be added to the principal amount of this Note, in which event interest shall accrue thereon in accordance with the terms of this Note and such additional principal amount shall be convertible into Common Stock in accordance with the terms of this Note.

Failure to Deliver Common Shares Prior to Deadline. Without in any way limiting the Holder’s right to pursue other remedies, including actual damages and/or equitable relief, the parties agree that if delivery of the Common Shares issuable upon conversion of this Note is not delivered by the Deadline the Company shall pay to the Holder $1,000 per day in cash, for each day beyond the Deadline that the Company fails to deliver such Common Shares. Such cash amount shall be paid to Holder by the fifth day of the month following the month in which it has accrued or, at the option of the Holder (by written notice to the Company by the first day of the month following the month in which it has accrued), shall be added to the principal amount of this Note, in which event interest shall accrue thereon in accordance with the terms of this Note and such additional principal amount shall be convertible into Common Shares in accordance with the terms of this Note. The Company agrees that the right to convert is a valuable right to the Holder. The damages resulting from a failure, attempt to frustrate, interference with such conversion right are difficult if not impossible to qualify. Accordingly, the parties acknowledge that the liquidated damages provision contained in this Section 3(c)(vi) are justified.

If the 27th Floor shall not be available for Tenant’s occupancy on the Anticipated 27th Floor Delivery Date for any reason not within the control of Landlord, including the holding over of the prior tenant, then Landlord and Tenant agree that the failure to have the 27th Floor available for occupancy by Tenant shall in no way affect the validity of the Lease or the inclusion of the 27th Floor in the Premises or the obligations of Landlord or Tenant under the Lease, nor shall the same be construed in any way to extend the term of the Lease or impose any liability on Landlord, and for the purpose of this Rider Section 5, the 27th Floor Delivery Date shall be deferred to and shall be the date the 27th Floor is delivered to Tenant in the delivery condition herein. The provisions of this Rider [Section 5(g)(i)] are intended to constitute “an express provision to the contrary” within the meaning of Section 223-a of the New York Real Property Law.

If the Full Floor Expansion Space shall not be available for Tenant’s occupancy on the Anticipated Full Floor Delivery Date for any reason not within the control of Landlord, including the holding over of the prior tenant, then Landlord and Tenant agree that the failure to have the Full Floor Expansion Space available for occupancy by Tenant shall in no way affect the validity of the Lease or the inclusion of the Full Floor Expansion Space in the Premises or the obligations of Landlord or Tenant under the Lease, nor shall the same be construed in any way to extend the term of the Lease or impose any liability on Landlord, and for the purpose of this Rider Section 6, the Full Floor Delivery Date shall be deferred to and shall be the date the Full Floor Expansion Space is delivered to Tenant in the delivery condition herein. The provisions of this Rider [Section 6(g)(i)] are intended to constitute “an express provision to the contrary” within the meaning of Section 223-a of the New York Real Property Law.

Failure to Deliver Common Stock Prior to Deadline. Without in any way limiting the Holder’s right to pursue other remedies, including actual damages and/or equitable relief, the parties agree that if delivery of the Common Stock issuable upon conversion of this Note is not delivered by the Deadline due to action and/or inaction of the Borrower, the Borrower shall pay to the Holder $2,000 per day in cash, for each day beyond the Deadline that the Borrower fails to deliver such Common Stock (the “Fail to Deliver Fee”); provided; however that the Fail to Deliver Fee shall not be due if the failure is a result of a third party (i.e., transfer agent; and not the result of any failure to pay such transfer agent) despite the best efforts of the Borrower to effect delivery of such Common Stock. Such cash amount shall be paid to Holder by the fifth day of the month following the month in which it has accrued or, at the option of the Holder (by written notice to the Borrower by the first day of the month following the month in which it has accrued), shall be added to the principal amount of this Note, in which event interest shall accrue thereon in accordance with the terms of this Note and such additional principal amount shall be convertible into Common Stock in accordance with the terms of this Note. The Borrower agrees that the right to convert is a valuable right to the Holder. The damages resulting from a failure, attempt to frustrate, interference with such conversion right are difficult if not impossible to qualify. Accordingly, the parties acknowledge that the liquidated damages provision contained in this Section 1.4(e) are justified.

In the event a Batch is not released in accordance with the Delivery Schedule, ​.

If any Partial Floor ROFO Space shall not be available for Tenant’s occupancy on the Anticipated Partial Floor Delivery Date for any reason not within the control of Landlord, including the holding

If any Available ROFO Space shall not be available for Tenant’s occupancy on the Anticipated Available ROFO Delivery Date for any reason not within the control of Landlord, including the holding over of the prior tenant, then Landlord and Tenant agree that the failure to have such Available ROFO Space available for occupancy by Tenant shall in no way affect the validity of the Lease or the inclusion of such Available ROFO Space in the Premises or the obligations of Landlord or Tenant under the Lease, nor shall the same be construed in any way to extend the term of the Lease or impose any liability on Landlord, and for the purpose of this Rider Section 2, the Available ROFO Delivery Date shall be deferred to and shall be the date such Available ROFO Space is delivered to Tenant in the delivery condition set forth in Rider [Section 2(g)(i)] above. The provisions of this Rider [Section 2(h)(i)] are intended to constitute “an express provision to the contrary” within the meaning of Section 223-a of the New York Real Property Law.

If the 26th Floor shall not be available for Tenant’s occupancy on the Anticipated 26th Floor Delivery Date for any reason not within the control of Landlord, including the holding over of the prior tenant, then Landlord and Tenant agree that the failure to have the 26th Floor available for occupancy by Tenant shall in no way affect the validity of the Lease or the inclusion of the 26th Floor in the Premises or the obligations of Landlord or Tenant under the Lease, nor shall the same be construed in any way to extend the term of the Lease or impose any liability on Landlord, and for the purpose of this Rider Section 4, the 26th Floor Delivery Date shall be deferred to and shall be the date the 26th Floor is delivered to Tenant in the delivery condition herein. The provisions of this Rider [Section 4(g)(i)] are intended to constitute “an express provision to the contrary” within the meaning of Section 223-a of the New York Real Property Law.