Common use of Failure to Deliver Clause in Contracts

Failure to Deliver. AOL shall deliver to AVANTEL a rolling forecast of its estimated Modem requirements, six (6) months prior to the date AOL requires such Modems. Within sixty (60) days following the date the forecast was submitted to AVANTEL, AOL shall submit an Order for Modems based on such forecast. In the event AOL does not submit an Order to AVANTEL based in whole or in part on such forecast within the sixty (60) days as set forth above, such Order be deemed an accepted Order and AVANTEL shall deliver to AOL the Modems on the delivery date specified by AOL, according with the term established below. Within ten (10) days after receipt of an Order from AOL, AVANTEL shall notify AOL of its acceptance or rejection of such Order. If AVANTEL fails to provide AOL with an acceptance notice within such ten-day period, then such Order shall be deemed rejected by AVANTEL as of the last day of such ten-day period. Modems corresponding to an accepted Order shall be delivered no later than one-hundred twenty (120) days from the AVANTEL's acceptance of the Order (the "Delivery Date"), unless otherwise agreed by the parties. (a) In case that AOL modifies in any way the Order submitted to AVANTEL after the sixty (60) days described above, when it has been accepted according with the previous paragraph, AOL reimburse AVANTEL for reasonable, verifiable out-of-pocket expenses which may include, but are not limited to: non-recurring charges for local trunks, investments in incremental port capacity, cancellation penalties from AVANTEL's suppliers. AVANTEL shall provide AOL with full documentation to verify these expenses, if any. (b) Acceptance testing of an Order shall be as set forth in Section 3 of the Agreement (c) AOL shall not be required to accept Modems delivered prior to the Delivery Date, unless otherwise agreed by the parties. AOL shall not be responsible for any costs or expenses incurred by AVANTEL for Modems delivered or ready to be delivered prior to the Delivery Date. If AVANTEL fails to deliver Modems corresponding to an accepted Order by the Delivery Date in cities listed in Attachment 1, and without modifications of an Order by AOL according to the procedures established herein, AVANTEL will provide to AOL, an ongoing daily credit equal to one-half of the pro-rated daily Modem charges that would have applied to such Modems, which credit will cease when such Modems are delivered. If such Modems are not delivered within thirty (30) days of the Delivery Date, AOL may cancel, at no cost or liability to AOL, the unfilled portion of the Order for such Modems.

Failure to Deliver. AOL Additionally, and in addition to and without limitation or waiver of any of Tenant's other rights and remedies under the Lease or at law or equity, if for any reason Landlord fails to deliver possession of the Premises by the Outside Delivery Date, then Landlord shall be considered in default of this Lease. Tenant may, in its sole discretion, elect to take possession of the Premises, Site and Building and complete the Landlord's Work by giving written notice of such election to Landlord. Upon the receipt of such written notice, Landlord shall assign to Tenant all of the development permits, approvals, licenses and contracts (including without limit, building permits, governmental approvals, contracts with construction managers and contractors) (collectively, the "Development Documents") as are necessary in Tenant's opinion to permit Tenant to complete the unfinished portions of the Landlord's Work. Tenant is hereby granted the absolute right and easement to access and use of the Site and Building as is necessary to complete Landlord's Work in accordance with this Section and such entry shall not be deemed to constitute possession of the Premises or to obligate Tenant to pay Base Rent or any other charges under the Lease, such entry and use to be free of charge, and subject further to Tenant's offset and deduction rights. Subject to any conditional assignments to Landlord's construction lender, Landlord hereby agrees to and hereby does absolutely assign, transfer and deliver to AVANTEL a rolling forecast Tenant all existing and future Development Documents and all Landlord's right, title and interest therein and agrees to evidence this assignment by separate agreement(s) and to take other steps reasonably deemed necessary by Tenant to effectuate Tenant's rights under this section (including without limit obtaining the consent and agreement of its estimated Modem requirementsall governmental authorities, six (6) months prior contractors and consultants to this assignment and to the date AOL requires substitute performance by Tenant under the Development Documents) upon request of Tenant. With respect to any Development Documents which require the consent of Landlord to their assignment as aforesaid, this Section shall be deemed to constitute such Modemsconsent. Within sixty Notwithstanding the foregoing assignment, Tenant shall refrain from performing any of Landlord's Work except in accordance with the provisions of this Section of the Lease. Landlord specifically agrees that its indemnification and hold harmless obligations under this Lease include all the costs, liens, damages, expenses, fees (60) days following including without limit legal and attorneys' fees), rents, and other items or xxxxx suffered or incurred by Tenant and related to Landlord's default in its performance of Landlord's Work and in its obligation to timely deliver the date Premises in accordance with this Lease and/or related to the forecast was submitted performance by Tenant of Landlord's Work, and in the event Landlord defaults in such indemnification obligations, Tenant shall have the continuing right to AVANTELoffset against and deduct from its rental obligations hereunder until repaid in full all the foregoing described costs, AOL shall submit an Order for Modems based on such forecastdamages, expenses, etc. In the event AOL does that Tenant elects to proceed under this Section to complete or arrange completion of Landlord's Work, then the Commencement Date shall occur upon completion of such Landlord's Work and acceptance by Tenant of possession of the Premises. The remaining terms of this Lease shall apply, subject to such rights of offset and other Tenant remedies provided for by this Section. Tenant by exercising its rights under this Section shall not submit an Order to AVANTEL based in whole or in part on such forecast within the sixty (60) days as set forth above, such Order be deemed an accepted Order to waive any of Tenant's other rights and AVANTEL remedies hereunder and at law or equity. The arbitration provisions of this Lease shall deliver not apply to AOL the Modems on the delivery date specified by AOL, according with the term established below. Within ten (10) days after receipt of an Order from AOL, AVANTEL shall notify AOL Tenant's exercise of its acceptance rights under this Section or rejection disputes related to such exercise or related to the conduct of such OrderLandlord's Work by Tenant. If AVANTEL fails This section shall not be considered to provide AOL with an acceptance notice within such ten-day period, then such Order shall be deemed rejected by AVANTEL as of the last day of such ten-day period. Modems corresponding to an accepted Order shall be delivered no later than one-hundred twenty (120) days from the AVANTEL's acceptance of the Order (the "Delivery Date"), unless otherwise agreed by the parties. (a) In case that AOL modifies obligate Tenant in any way the Order submitted to AVANTEL after the sixty (60) days described above, when it has been accepted according with the previous paragraph, AOL reimburse AVANTEL for reasonable, verifiable out-of-pocket expenses which may include, but are not limited to: non-recurring charges for local trunks, investments in incremental port capacity, cancellation penalties from AVANTELperform Landlord's suppliers. AVANTEL shall provide AOL with full documentation to verify these expenses, if any. (b) Acceptance testing of an Order shall be as set forth in Section 3 of the Agreement (c) AOL Work and shall not be required deemed to accept Modems delivered prior to the Delivery Date, unless otherwise agreed by the parties. AOL shall not be responsible for create any costs rights or expenses incurred by AVANTEL for Modems delivered or ready to be delivered prior to the Delivery Date. If AVANTEL fails to deliver Modems corresponding to an accepted Order by the Delivery Date causes of action in cities listed in Attachment 1, and without modifications favor of an Order by AOL according to the procedures established herein, AVANTEL will provide to AOL, an ongoing daily credit equal to one-half of the pro-rated daily Modem charges that would have applied to such Modems, which credit will cease when such Modems are delivered. If such Modems are not delivered within thirty (30) days of the Delivery Date, AOL may cancel, at no cost or liability to AOL, the unfilled portion of the Order for such Modemsany third party.

Failure to Deliver. AOL The target date for the Commencement ------------------ Date (the "Target Commencement Date") is July 15, 1997. For each day beyond August 14, 1997 up to, but not including, September 15, 1997, that Landlord is unable to deliver possession of the Property to Tenant with the Landlord Work being Substantially Completed for any reason other than Excused Delay (as defined in the Improvement Agreement), the Rental Commencement Date shall be delayed on (1) day. For each day from and beyond September 15, 1997 up to, but not including, October 15, 1997, that Landlord is unable to deliver possession of the Property to AVANTEL Tenant with the Landlord Work being Substantially Completed for any reason other than Excused Delay, the Rental Commencement Date shall be delayed one and one-half (1 1/2) days. For each day from and beyond October 15, 1997 up to, but not including, November 14, 1997 that Landlord is unable to deliver possession of the Property to Tenant with the Landlord Work being Substantially Completed for any reason other than Excused Delay, the Rental Commencement Date shall be delayed two (2) days. Notwithstanding the occurrence of any Excused Delay (as defined in the Improvement Agreement, but excepting from that definition any delays resulting solely from change orders requested by Tenant, delays in Tenant's delivery of any plans or specifications to Landlord beyond the date therefor set forth in the Improvement Agreement and delays in Tenant's review of any plans and specifications submitted to Tenant for review beyond the period for such review set forth in the Improvement Agreement, each category of which delays shall extend the date set forth immediately below in this Section 2.4 on a rolling forecast day for day basis, but only following Landlord's written notice to Tenant of its estimated Modem requirementssuch delay as provided in the definition of Excused Delay in the Improvement Agreement), six (6) months if Landlord is unable to deliver possession of the Property with the Landlord Work Substantially Completed on or before November 14, 1997, then Tenant shall have the right to terminate this Lease by giving written notice of termination to Landlord at any time after such date, but prior to the date AOL requires time that Landlord had delivered possession of the Property with the Landlord Work Substantially Completed to Tenant. Any such Modems. Within sixty (60) days following the date the forecast was submitted termination shall be in addition to AVANTELany other rights or remedies that Tenant may have under this Lease, AOL shall submit an Order for Modems based on such forecast. In the event AOL does not submit an Order to AVANTEL based in whole at law or in part equity, unless Landlord's failure to cause the Landlord Work to be Substantially Completed on such forecast within the sixty or before November 14, 1997 is due primarily (60) days as set forth abovei.e., such Order be deemed an accepted Order and AVANTEL shall deliver to AOL the Modems on the delivery date specified by AOL, according with the term established below. Within ten (10) days after receipt of an Order from AOL, AVANTEL shall notify AOL of its acceptance or rejection more than 50% of such Order. If AVANTEL fails delay) to provide AOL with an acceptance notice within Excused Delay, in which event Landlord's total liability to Tenant resulting from such ten-day period, then such Order termination and delay shall be deemed rejected by AVANTEL as of the last day of such ten-day period. Modems corresponding limited to an accepted Order shall be delivered no later than one-hundred twenty (120) days from the AVANTEL's acceptance of the Order (the "Delivery Date")amount equal to all documented, unless otherwise agreed by the parties. (a) In case that AOL modifies in any way the Order submitted to AVANTEL after the sixty (60) days described above, when it has been accepted according with the previous paragraph, AOL reimburse AVANTEL for reasonable, verifiable out-of-pocket expenses which may includecosts incurred by Tenant (including, but are not limited to: non-recurring charges for local trunkswithout limitation, investments fees and costs of design and construction professionals, consultants and attorneys) in incremental port capacityconnection with the negotiation and drafting of this Lease, cancellation penalties from AVANTEL's suppliers. AVANTEL shall provide AOL with full documentation to verify these expenses, if any. (b) Acceptance testing of an Order shall be as set forth in Section 3 the diligence review of the Agreement (c) AOL shall not be required to accept Modems delivered prior to Property and the Delivery Date, unless otherwise agreed by the parties. AOL shall not be responsible for space planning and design of any costs or expenses incurred by AVANTEL for Modems delivered or ready to be delivered prior to the Delivery Date. If AVANTEL fails to deliver Modems corresponding to an accepted Order by the Delivery Date in cities listed in Attachment 1, and without modifications of an Order by AOL according to the procedures established herein, AVANTEL will provide to AOL, an ongoing daily credit equal to one-half of the pro-rated daily Modem charges that would have applied to such Modems, which credit will cease when such Modems are delivered. If such Modems are not delivered within thirty (30) days of the Delivery Date, AOL may cancel, at no cost or liability to AOL, the unfilled portion of the Order for such ModemsImprovements.

Failure to Deliver. AOL shall In the event that the Company (i) fails for any reason (other than as a result of the Holder’s failure, in the case of a Cash Exercise, to pay the applicable Exercise Price for the Warrant Shares) to deliver to AVANTEL a rolling forecast of its estimated Modem requirements, six (6) months prior Warrant Shares to the date AOL requires Holder as and when required under Sections 3(a) and 3(b), or (ii) fails to remove any restrictive legend from any outstanding Warrant Shares at the request of the Holder as and when required hereunder (either such Modems. Within sixty failure being referred to herein as an “Exercise Default”), the Holder shall have the right to receive from the Company an amount equal to (60x) days following (N/365) multiplied by (y) the aggregate Market Price of the Warrant Shares (calculated as of the date on which the forecast applicable Exercise Notice was submitted delivered) which are the subject of such Exercise Default multiplied by (z) the lower of eighteen percent (18%) and the maximum rate permitted by applicable Governmental Requirements, where “N” equals the number of days elapsed between (1) the date on which such Exercise Default first occurred and (2) the date on which such Exercise Default is finally cured. Amounts payable under the preceding sentence shall be paid to AVANTEL, AOL shall submit an Order for Modems based the Holder in immediately available funds on such forecastor before the second Business Day following written notice from the Holder to the Company specifying the amount owed to it by the Company. In the event AOL does not submit an Order to AVANTEL based in whole that shares of Common Stock are purchased by or in part on such forecast within the sixty (60) days as set forth above, such Order be deemed an accepted Order and AVANTEL shall deliver to AOL the Modems on the delivery date specified by AOL, according with the term established below. Within ten (10) days after receipt of an Order from AOL, AVANTEL shall notify AOL of its acceptance or rejection of such Order. If AVANTEL fails to provide AOL with an acceptance notice within such ten-day period, then such Order shall be deemed rejected by AVANTEL as behalf of the last day Holder in order to make delivery on a sale effected in anticipation of such ten-day period. Modems corresponding receiving Warrant Shares upon an exercise, the Holder shall have the right to an accepted Order shall be delivered no later than one-hundred twenty (120) days receive from the AVANTEL's acceptance Company, in addition to the foregoing amounts, (i) the aggregate amount paid by or on behalf of the Order Holder for such shares of Common Stock minus (ii) the "Delivery Date"), unless otherwise agreed by aggregate amount of the parties. (a) In case that AOL modifies in any way the Order submitted to AVANTEL after the sixty (60) days described above, when it has been accepted according with the previous paragraph, AOL reimburse AVANTEL for reasonable, verifiable out-of-pocket expenses which may include, but are not limited to: non-recurring charges for local trunks, investments in incremental port capacity, cancellation penalties from AVANTEL's suppliers. AVANTEL shall provide AOL with full documentation to verify these expensesnet proceeds, if any. (b) Acceptance testing of an Order shall be as set forth in Section 3 , received by the Holder from the sale of the Agreement (c) AOL shall not be required to accept Modems Warrant Shares if and when delivered prior to the Delivery Date, unless otherwise agreed by the partiesHolder. AOL shall not be responsible for any costs or expenses incurred by AVANTEL for Modems delivered or ready to be delivered prior In addition to the Delivery Date. If AVANTEL fails to deliver Modems corresponding to foregoing rights arising upon an accepted Order by the Delivery Date in cities listed in Attachment 1, and without modifications of an Order by AOL according to the procedures established herein, AVANTEL will provide to AOL, an ongoing daily credit equal to one-half of the pro-rated daily Modem charges that would have applied to such Modems, which credit will cease when such Modems are delivered. If such Modems are not delivered within thirty (30) days of the Delivery Date, AOL may cancel, at no cost or liability to AOLExercise Default, the unfilled portion Holder shall have the right to pursue all other remedies available to it at law or in equity (including, without limitation, a decree of the Order for such Modemsspecific performance and/or injunctive relief).

Failure to Deliver. AOL (i) If the 26th Floor shall deliver 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 AVANTEL a rolling forecast have the 26th Floor available for occupancy by Tenant shall in no way affect the validity of its estimated Modem requirementsthe Lease or the inclusion of the 26th Floor in the Premises or the obligations of Landlord or Tenant under the Lease, six (6) months prior nor shall the same be construed in any way to extend the date AOL requires such Modems. Within sixty (60) days following 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 forecast was submitted 26th Floor is delivered to AVANTEL, AOL shall submit Tenant in the delivery condition herein. The provisions of this Rider Section 4(g)(i) are intended to constitute “an Order for Modems based on such forecast. In express provision to the event AOL does not submit an Order to AVANTEL based in whole or in part on such forecast contrary” within the sixty (60) days as set forth above, such Order be deemed an accepted Order and AVANTEL shall deliver to AOL the Modems on the delivery date specified by AOL, according with the term established below. Within ten (10) days after receipt meaning of an Order from AOL, AVANTEL shall notify AOL of its acceptance or rejection of such Order. If AVANTEL fails to provide AOL with an acceptance notice within such tenSection 223-day period, then such Order shall be deemed rejected by AVANTEL as a of the last day of such ten-day period. Modems corresponding to an accepted Order shall be delivered no later than one-hundred twenty (120) days from the AVANTEL's acceptance of the Order (the "Delivery Date"), unless otherwise agreed by the partiesNew York Real Property Law. (aii) In case that AOL modifies in any way the Order submitted to AVANTEL after the sixty (60Notwithstanding Rider Section 4(g)(i) days described above, when it has been accepted according if the 26th Floor shall not be available for Tenant’s occupancy for any reason on or before the six (6)-month anniversary of the Anticipated 26th Floor Delivery Date (subject to extension due to Force Majeure Causes, delays to the extent caused by Tenant, and/or delays caused by the holding over of the prior tenant (provided, Landlord shall diligently enforce all of its rights and remedies under such prior tenant’s lease with the previous paragraphrespect to such prior tenant’s holdover, AOL reimburse AVANTEL for reasonable, verifiable out-of-pocket expenses which may includeincluding, but are not limited to: non-recurring charges for local trunks, investments in incremental port capacityinstituting holdover proceedings against such prior tenant; provided, cancellation penalties from AVANTEL's suppliers. AVANTEL shall provide AOL with full documentation further, such delay due to verify these expenses, if any. (b) Acceptance testing of an Order shall be as set forth in Section 3 such holding over of the Agreement (c) AOL prior tenant shall not be required exceed ninety (90) days in the aggregate)), then, subject to accept Modems delivered prior Rider Section 4(g)(iii), Tenant may, as its sole remedy (except as otherwise provided in the following sentence), rescind the exercise of its option under this Rider Section 4 with respect thereto by giving notice of such rescission to the Delivery Date, unless otherwise agreed by the parties. AOL shall not be responsible for any costs or expenses incurred by AVANTEL for Modems delivered or ready to be delivered prior to the Delivery Date. If AVANTEL fails to deliver Modems corresponding to an accepted Order by the Delivery Date in cities listed in Attachment 1, and without modifications of an Order by AOL according to the procedures established herein, AVANTEL will provide to AOL, an ongoing daily credit equal to one-half of the pro-rated daily Modem charges that would have applied to such Modems, which credit will cease when such Modems are delivered. If such Modems are not delivered Landlord within thirty (30) days after the six (6)-month anniversary of the Anticipated 26th Floor Delivery DateDate (as may be extended pursuant to this sentence). If Tenant shall not have elected to rescind the exercise of its option under this Rider Section 4 pursuant to the immediately preceding sentence within such 30-day period, AOL then, if the 26th Floor shall not be available for Tenant’s occupancy for any reason on or before the three (3)-month anniversary of the expiration of such 30-day period (subject to extension due to Force Majeure Causes (including holding over of the prior tenant) and/or delays to the extent caused by Tenant), then Tenant again may, as its sole remedy (subject to Rider Section 4(g)(iii)), rescind the exercise of its option under this Rider Section 4 with respect thereto by giving notice of such rescission to Landlord within thirty (30) days after such three (3)-month anniversary (as may cancelbe extended pursuant to this sentence). Landlord shall use commercially reasonable efforts to remove any prior tenant holding over in the 26th Floor. (iii) If the 26th Floor Delivery Date has not occurred on or before the date that is thirty (30) days following the Anticipated 26th Floor Delivery Date (as such date shall be extended one (1) day for each day of delay due to casualty, at no cost or liability to AOLcondemnation, Tenant Delay and/or Force Majeure Causes, the unfilled portion “26th Floor Delivery Outside Date”), then as Tenant’s sole and exclusive remedy in connection therewith (except as otherwise provided in Rider Section 4(g)(ii) above), Tenant shall receive a per diem credit against the Base Rent payable with respect to the 26th Floor in an amount equal to the (x) the per diem Base Rent payable with respect to the 26th Floor, multiplied by (y) the number of days following the Order for such Modems26th Floor Delivery Outside Date until the 26th Floor Delivery Date occurs. For the avoidance of doubt, if Tenant shall rescind its election pursuant to Rider Section 4(g)(ii) above, Tenant shall not be entitled to any abatement or credit under this Rider Section 4(g)(iii).

Failure to Deliver. AOL (i) If the 27th Floor shall deliver 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 AVANTEL a rolling forecast have the 27th Floor available for occupancy by Tenant shall in no way affect the validity of its estimated Modem requirementsthe Lease or the inclusion of the 27th Floor in the Premises or the obligations of Landlord or Tenant under the Lease, six (6) months prior nor shall the same be construed in any way to extend the date AOL requires such Modems. Within sixty (60) days following 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 forecast was submitted 27th Floor is delivered to AVANTEL, AOL shall submit Tenant in the delivery condition herein. The provisions of this Rider Section 5(g)(i) are intended to constitute “an Order for Modems based on such forecast. In express provision to the event AOL does not submit an Order to AVANTEL based in whole or in part on such forecast contrary” within the sixty (60) days as set forth above, such Order be deemed an accepted Order and AVANTEL shall deliver to AOL the Modems on the delivery date specified by AOL, according with the term established below. Within ten (10) days after receipt meaning of an Order from AOL, AVANTEL shall notify AOL of its acceptance or rejection of such Order. If AVANTEL fails to provide AOL with an acceptance notice within such tenSection 223-day period, then such Order shall be deemed rejected by AVANTEL as a of the last day of such ten-day period. Modems corresponding to an accepted Order shall be delivered no later than one-hundred twenty (120) days from the AVANTEL's acceptance of the Order (the "Delivery Date"), unless otherwise agreed by the partiesNew York Real Property Law. (aii) In case that AOL modifies in any way the Order submitted to AVANTEL after the sixty (60Notwithstanding Rider Section 5(g)(i) days described above, when it has been accepted according if the 27th Floor shall not be available for Tenant’s occupancy for any reason on or before the six (6)-month anniversary of the Anticipated 27th Floor Delivery Date (subject to extension due to Force Majeure Causes (subject to extension due to Force Majeure Causes, delays to the extent caused by Tenant, and/or delays caused by the holding over of the prior tenant (provided, Landlord shall diligently enforce all of its rights and remedies under such prior tenant’s lease with the previous paragraphrespect to such prior tenant’s holdover, AOL reimburse AVANTEL for reasonable, verifiable out-of-pocket expenses which may includeincluding, but are not limited to: non-recurring charges for local trunks, investments in incremental port capacityinstituting holdover proceedings against such prior tenant; provided, cancellation penalties from AVANTEL's suppliers. AVANTEL shall provide AOL with full documentation further, such delay due to verify these expenses, if any. (b) Acceptance testing of an Order shall be as set forth in Section 3 such holding over of the Agreement (c) AOL prior tenant shall not be required to accept Modems delivered prior exceed ninety (90) days in the aggregate)) and/or delays to the Delivery Dateextent caused by Tenant), unless then, subject to Rider Section 5(g)(iii), Tenant may, as its sole remedy (except as otherwise agreed provided in the following sentence), rescind the exercise of its option under this Rider Section 5 with respect thereto by the parties. AOL shall not be responsible for any costs or expenses incurred by AVANTEL for Modems delivered or ready giving notice of such rescission to be delivered prior to the Delivery Date. If AVANTEL fails to deliver Modems corresponding to an accepted Order by the Delivery Date in cities listed in Attachment 1, and without modifications of an Order by AOL according to the procedures established herein, AVANTEL will provide to AOL, an ongoing daily credit equal to one-half of the pro-rated daily Modem charges that would have applied to such Modems, which credit will cease when such Modems are delivered. If such Modems are not delivered Landlord within thirty (30) days after the six (6)-month anniversary of the Anticipated 27th Floor Delivery DateDate (as may be extended pursuant to this sentence). If Tenant shall not have elected to rescind the exercise of its option under this Rider Section 5 pursuant to the immediately preceding sentence within such 30-day period, AOL then, if the 27th Floor shall not be available for Tenant’s occupancy for any reason on or before the three (3)-month anniversary of the expiration of such 30-day period (subject to extension due to Force Majeure Causes (including holding over of the prior tenant) and/or delays to the extent caused by Tenant), then Tenant again may, as its sole remedy (subject to Rider Section 5(g)(iii)), rescind the exercise of its option under this Rider Section 5 with respect thereto by giving notice of such rescission to Landlord within thirty (30) days after such three (3)-month anniversary (as may cancelbe extended pursuant to this sentence). Landlord shall use commercially reasonable efforts to remove any prior tenant holding over in the 27th Floor. (iii) If the 27th Floor Delivery Date has not occurred on or before the date that is thirty (30) days following the Anticipated 27th Floor Delivery Date (as such date shall be extended one (1) day for each day of delay due to casualty, at no cost or liability to AOLcondemnation, Tenant Delay and/or Force Majeure Causes, the unfilled portion “27th Floor Delivery Outside Date”), then as Tenant’s sole and exclusive remedy in connection therewith (except as otherwise provided in Rider Section 5(g)(ii) above), Tenant shall receive a per diem credit against the Base Rent payable with respect to the 27th Floor in an amount equal to the (x) the per diem Base Rent payable with respect to the 27th Floor, multiplied by (y) the number of days following the Order for such Modems27th Floor Delivery Outside Date until the 27th Floor Delivery Date occurs. For the avoidance of doubt, if Tenant shall rescind its election pursuant to Rider Section 5(g)(ii) above, Tenant shall not be entitled to any abatement or credit under this Rider Section 5(g)(iii).

Failure to Deliver. AOL (i) If any Partial Floor ROFO Space shall deliver 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 over of the prior tenant, then Landlord and Tenant agree that the failure to AVANTEL a rolling forecast have such Partial Floor ROFO Space available for occupancy by Tenant shall in no way affect the validity of its estimated Modem requirementsthe Lease or the inclusion of such Partial Floor ROFO Space in the Premises or the obligations of Landlord or Tenant under the Lease, six (6nor 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 1, the Partial Floor Delivery Date shall be deferred to and shall be the date such Partial Floor ROFO Space is delivered to Tenant in the delivery condition set forth in Rider Section 1(g)(i) months prior above. The provisions of this Rider Section 1(h)(i) are intended to constitute “an express provision to the date AOL requires such Modems. Within sixty (60) days following the date the forecast was submitted to AVANTEL, AOL shall submit an Order for Modems based on such forecast. In the event AOL does not submit an Order to AVANTEL based in whole or in part on such forecast contrary” within the sixty (60) days as set forth above, such Order be deemed an accepted Order and AVANTEL shall deliver to AOL the Modems on the delivery date specified by AOL, according with the term established below. Within ten (10) days after receipt meaning of an Order from AOL, AVANTEL shall notify AOL of its acceptance or rejection of such Order. If AVANTEL fails to provide AOL with an acceptance notice within such tenSection 223-day period, then such Order shall be deemed rejected by AVANTEL as a of the last day of such ten-day period. Modems corresponding to an accepted Order shall be delivered no later than one-hundred twenty (120) days from the AVANTEL's acceptance of the Order (the "Delivery Date"), unless otherwise agreed by the partiesNew York Real Property Law. (aii) In case that AOL modifies in any way the Order submitted to AVANTEL after the sixty (60Notwithstanding Rider Section 1(h)(i) days described above, when it has been accepted according if any Partial Floor ROFO Space shall not be available for Tenant’s occupancy for any reason on or before the six (6)-month anniversary of the Anticipated Partial Floor Delivery Date (subject to extension due to Force Majeure Causes, delays to the extent caused by Tenant, and/or delays caused by the holding over of the prior tenant (provided, Landlord shall diligently enforce all of its rights and remedies under such prior tenant’s lease with the previous paragraphrespect to such prior tenant’s holdover, AOL reimburse AVANTEL for reasonable, verifiable out-of-pocket expenses which may includeincluding, but are not limited to: non-recurring charges for local trunks, investments in incremental port capacityinstituting holdover proceedings against such prior tenant; provided, cancellation penalties from AVANTEL's suppliers. AVANTEL shall provide AOL with full documentation further, such delay due to verify these expenses, if any. (b) Acceptance testing of an Order shall be as set forth in Section 3 such holding over of the Agreement (c) AOL prior tenant shall not be required exceed ninety (90) days in the aggregate)), then Tenant may, as its sole remedy (except as otherwise provided in the following sentence), rescind the exercise of its option under this Rider Section 1 with respect thereto by giving notice of such rescission to accept Modems delivered prior to the Delivery Date, unless otherwise agreed by the parties. AOL shall not be responsible for any costs or expenses incurred by AVANTEL for Modems delivered or ready to be delivered prior to the Delivery Date. If AVANTEL fails to deliver Modems corresponding to an accepted Order by the Delivery Date in cities listed in Attachment 1, and without modifications of an Order by AOL according to the procedures established herein, AVANTEL will provide to AOL, an ongoing daily credit equal to one-half of the pro-rated daily Modem charges that would have applied to such Modems, which credit will cease when such Modems are delivered. If such Modems are not delivered Landlord within thirty (30) days after the six (6)-month anniversary of the Anticipated Partial Floor Delivery DateDate (as may be extended pursuant to this sentence). If Tenant shall not have elected to rescind the exercise of its option under this Rider Section 1 pursuant to the immediately preceding sentence within such 30-day period, AOL may cancelthen, at no cost if any Partial Floor ROFO Space shall not be available for Tenant’s occupancy for any reason on or liability to AOL, before the unfilled portion three (3)-month anniversary of the Order for expiration of such Modems30-day period (subject to extension due to Force Majeure Causes (including holding over of the prior tenant) and/or delays to the extent caused by Tenant), then Tenant again may, as its sole remedy, rescind the exercise of its option under this Rider Section 1 with respect thereto by giving notice of such rescission to Landlord within thirty (30) days after such three (3)-month anniversary (as may be extended pursuant to this sentence). Landlord shall use commercially reasonable efforts to remove any prior tenant holding over in the applicable Partial Floor ROFO Space.

Failure to Deliver. AOL (i) If any Available ROFO Space shall deliver 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 AVANTEL a rolling forecast have such Available ROFO Space available for occupancy by Tenant shall in no way affect the validity of its estimated Modem requirementsthe Lease or the inclusion of such Available ROFO Space in the Premises or the obligations of Landlord or Tenant under the Lease, six (6nor 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) months prior above. The provisions of this Rider Section 2(h)(i) are intended to constitute “an express provision to the date AOL requires such Modems. Within sixty (60) days following the date the forecast was submitted to AVANTEL, AOL shall submit an Order for Modems based on such forecast. In the event AOL does not submit an Order to AVANTEL based in whole or in part on such forecast contrary” within the sixty (60) days as set forth above, such Order be deemed an accepted Order and AVANTEL shall deliver to AOL the Modems on the delivery date specified by AOL, according with the term established below. Within ten (10) days after receipt meaning of an Order from AOL, AVANTEL shall notify AOL of its acceptance or rejection of such Order. If AVANTEL fails to provide AOL with an acceptance notice within such tenSection 223-day period, then such Order shall be deemed rejected by AVANTEL as a of the last day of such ten-day period. Modems corresponding to an accepted Order shall be delivered no later than one-hundred twenty (120) days from the AVANTEL's acceptance of the Order (the "Delivery Date"), unless otherwise agreed by the partiesNew York Real Property Law. (aii) In case that AOL modifies in any way the Order submitted to AVANTEL after the sixty (60Notwithstanding Rider Section 2(h)(i) days described above, when it has been accepted according if any Available ROFO Space shall not be available for Tenant’s occupancy for any reason on or before the six (6)-month anniversary of the Anticipated Available ROFO Delivery Date (subject to extension due to Force Majeure Causes, delays to the extent caused by Tenant, and/or delays caused by the holding over of the prior tenant (provided, Landlord shall diligently enforce all of its rights and remedies under such prior tenant’s lease with the previous paragraphrespect to such prior tenant’s holdover, AOL reimburse AVANTEL for reasonable, verifiable out-of-pocket expenses which may includeincluding, but are not limited to: non-recurring charges for local trunks, investments in incremental port capacityinstituting holdover proceedings against such prior tenant; provided, cancellation penalties from AVANTEL's suppliers. AVANTEL shall provide AOL with full documentation further, such delay due to verify these expenses, if any. (b) Acceptance testing of an Order shall be as set forth in Section 3 such holding over of the Agreement (c) AOL prior tenant shall not be required exceed ninety (90) days in the aggregate)), then Tenant may, as its sole remedy (except as otherwise provided in the following sentence), rescind the exercise of its option under this Rider Section 2 with respect thereto by giving notice of such rescission to accept Modems delivered prior to the Delivery Date, unless otherwise agreed by the parties. AOL shall not be responsible for any costs or expenses incurred by AVANTEL for Modems delivered or ready to be delivered prior to the Delivery Date. If AVANTEL fails to deliver Modems corresponding to an accepted Order by the Delivery Date in cities listed in Attachment 1, and without modifications of an Order by AOL according to the procedures established herein, AVANTEL will provide to AOL, an ongoing daily credit equal to one-half of the pro-rated daily Modem charges that would have applied to such Modems, which credit will cease when such Modems are delivered. If such Modems are not delivered Landlord within thirty (30) days after the six (6)-month anniversary of the Anticipated Available ROFO Delivery DateDate (as may be extended pursuant to this sentence). If Tenant shall not have elected to rescind the exercise of its option under this Rider Section 2 pursuant to the immediately preceding sentence within such 30-day period, AOL may cancelthen, at no cost if any Available ROFO Space shall not be available for Tenant’s occupancy for any reason on or liability to AOL, before the unfilled portion three (3)-month anniversary of the Order for expiration of such Modems30-day period (subject to extension due to Force Majeure Causes (including holding over of the prior tenant) and/or delays to the extent caused by Tenant), then Tenant again may, as its sole remedy, rescind the exercise of its option under this Rider Section 2 with respect thereto by giving notice of such rescission to Landlord within thirty (30) days after such three (3)-month anniversary (as may be extended pursuant to this sentence). Landlord shall use commercially reasonable efforts to remove any prior tenant holding over in the applicable Available ROFO Space.

Failure to Deliver. AOL (i) If the Full Floor Expansion Space shall deliver 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 AVANTEL a rolling forecast have the Full Floor Expansion Space available for occupancy by Tenant shall in no way affect the validity of its estimated Modem requirementsthe Lease or the inclusion of the Full Floor Expansion Space in the Premises or the obligations of Landlord or Tenant under the Lease, six (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) months prior , the Full Floor Delivery Date shall be deferred to the date AOL requires such Modems. Within sixty (60) days following and shall be the date the forecast was submitted Full Floor Expansion Space is delivered to AVANTEL, AOL shall submit Tenant in the delivery condition herein. The provisions of this Rider Section 6(g)(i) are intended to constitute “an Order for Modems based on such forecast. In express provision to the event AOL does not submit an Order to AVANTEL based in whole or in part on such forecast contrary” within the sixty (60) days as set forth above, such Order be deemed an accepted Order and AVANTEL shall deliver to AOL the Modems on the delivery date specified by AOL, according with the term established below. Within ten (10) days after receipt meaning of an Order from AOL, AVANTEL shall notify AOL of its acceptance or rejection of such Order. If AVANTEL fails to provide AOL with an acceptance notice within such tenSection 223-day period, then such Order shall be deemed rejected by AVANTEL as a of the last day of such ten-day period. Modems corresponding to an accepted Order shall be delivered no later than one-hundred twenty (120) days from the AVANTEL's acceptance of the Order (the "Delivery Date"), unless otherwise agreed by the partiesNew York Real Property Law. (aii) In case that AOL modifies in any way the Order submitted to AVANTEL after the sixty (60Notwithstanding Rider Section 6(g)(i) days described above, when it has been accepted according if the Full Floor Expansion Space shall not be available for Tenant’s occupancy for any reason on or before the six (6)-month anniversary of the Anticipated Full Floor Delivery Date (subject to extension due to Force Majeure Causes, delays to the extent caused by Tenant, and/or delays caused by the holding over of the prior tenant (provided, Landlord shall diligently enforce all of its rights and remedies under such prior tenant’s lease with the previous paragraphrespect to such prior tenant’s holdover, AOL reimburse AVANTEL for reasonable, verifiable out-of-pocket expenses which may includeincluding, but are not limited to: non-recurring charges for local trunks, investments in incremental port capacityinstituting holdover proceedings against such prior tenant; provided, cancellation penalties from AVANTEL's suppliers. AVANTEL shall provide AOL with full documentation further, such delay due to verify these expenses, if any. (b) Acceptance testing of an Order shall be as set forth in Section 3 such holding over of the Agreement (c) AOL prior tenant shall not be required exceed ninety (90) days in the aggregate)), then, subject to accept Modems delivered prior Rider Section 6(g)(iii), Tenant may, as its sole remedy (except as otherwise provided in the following sentence), rescind the exercise of its option under this Rider Section 6 with respect thereto by giving notice of such rescission to the Delivery Date, unless otherwise agreed by the parties. AOL shall not be responsible for any costs or expenses incurred by AVANTEL for Modems delivered or ready to be delivered prior to the Delivery Date. If AVANTEL fails to deliver Modems corresponding to an accepted Order by the Delivery Date in cities listed in Attachment 1, and without modifications of an Order by AOL according to the procedures established herein, AVANTEL will provide to AOL, an ongoing daily credit equal to one-half of the pro-rated daily Modem charges that would have applied to such Modems, which credit will cease when such Modems are delivered. If such Modems are not delivered Landlord within thirty (30) days after the six (6)-month anniversary of the Anticipated Full Floor Delivery DateDate (as may be extended pursuant to this sentence). If Tenant shall not have elected to rescind the exercise of its option under this Rider Section 6 pursuant to the immediately preceding sentence within such 30-day period, AOL then, if the Full Floor Expansion Space shall not be available for Tenant’s occupancy for any reason on or before the three (3)-month anniversary of the expiration of such 30-day period (subject to extension due to Force Majeure Causes (including holding over of the prior tenant) and/or delays to the extent caused by Tenant), then Tenant again may, as its sole remedy (subject to Rider Section 6(g)(iii)), rescind the exercise of its option under this Rider Section 6 with respect thereto by giving notice of such rescission to Landlord within thirty (30) days after such three (3)-month anniversary (as may cancelbe extended pursuant to this sentence). Landlord shall use commercially reasonable efforts to remove any prior tenant holding over in the Full Floor Expansion Space. (iii) If the Full Floor Delivery Date has not occurred on or before the date that is thirty (30) days following the Anticipated Full Floor Delivery Date (as such date shall be extended one (1) day for each day of delay due to casualty, at no cost or liability to AOLcondemnation, Tenant Delay and/or Force Majeure Causes, the unfilled portion “Full Floor Delivery Outside Date”), then as Tenant’s sole and exclusive remedy in connection therewith (except as otherwise provided in Rider Section 6(g)(ii) above), Tenant shall receive a per diem credit against the Base Rent payable with respect to the Full Floor Expansion Space in an amount equal to the (x) the per diem Base Rent payable with respect to the Full Floor Expansion Space, multiplied by (y) the number of days following the Order for such ModemsFull Floor Delivery Outside Date until the Full Floor Delivery Date occurs. For the avoidance of doubt, if Tenant shall rescind its election pursuant to Rider Section 6(g)(ii) above, Tenant shall not be entitled to any abatement or credit under this Rider Section 6(g)(iii).

Failure to Deliver. AOL shall deliver to AVANTEL a rolling forecast of its estimated Modem requirements, six (6i) months prior to the date AOL requires such Modems. Within sixty (60) days following the date the forecast was submitted to AVANTEL, AOL shall submit an Order for Modems based on such forecast. In the event AOL does that, for any reason, a Holder has not submit an Order timely received the number of Deliverable Shares required to AVANTEL based be delivered to such Holder, or the Deliverable Shares so delivered contain a restrictive legend in whole spite of such Holder complying with the requirements described in clause (x), (y) or in part (z) of Section 10(a), on such forecast within the sixty (60) days as set forth above, such Order be deemed an accepted Order and AVANTEL shall deliver to AOL the Modems on or before the delivery date specified for such Deliverable Shares (a “Delivery Default”, and the date on which such delivery was required to be made, the “Delivery Default Date”), the Company shall pay to such Holder payments (“Delivery Default Payments”) in the amount of (A) (N/360) multiplied by AOL(B) the applicable Delivery Default Amount multiplied by (C) the Default Interest Rate, according with where “N” equals the term established belownumber of days elapsed between the date on which such Deliverable Shares were to be delivered (or date on which the restrictive legend was to be removed from such Deliverable Shares) and the date on which such Delivery Default has been cured. Within ten (10) days after receipt of an Order from AOL, AVANTEL shall notify AOL of its acceptance or rejection of such Order. If AVANTEL fails Amounts payable pursuant to provide AOL with an acceptance notice within such ten-day period, then such Order the preceding sentence shall be deemed rejected by AVANTEL as of paid to the last day of Holder in immediately available funds on or before the second (2nd) Business Day following written notice from such ten-day period. Modems corresponding Holder to an accepted Order shall be delivered no later than one-hundred twenty (120) days from the AVANTEL's acceptance of Company specifying the Order (the "Delivery Date"), unless otherwise agreed amount owed to it by the partiesCompany. (aii) In addition to any other remedies provided herein, each Holder shall have the right to pursue actual damages for the Company’s failure to issue and deliver Deliverable Shares on the applicable delivery date, including, without limitation, damages relating to any purchase of shares of Common Stock by or on behalf of such Holder in order to make delivery on a sale lawfully effected in anticipation of receiving Deliverable Shares, such damages to be in an amount equal to (A) the aggregate amount paid by such Holder for the shares of Common Stock so purchased minus (B) the aggregate amount received by such Holder upon the sale of such Deliverable Shares (or in the case that AOL modifies in any way of Dividend Shares, the Order submitted to AVANTEL after aggregate amount received by such Holder upon the sixty (60) days described above, when it has been accepted according with the previous paragraph, AOL reimburse AVANTEL for reasonable, verifiable out-of-pocket expenses which may include, but are not limited to: non-recurring charges for local trunks, investments in incremental port capacity, cancellation penalties from AVANTEL's suppliers. AVANTEL shall provide AOL with full documentation to verify these expenses, if any. (b) Acceptance testing conversion of an Order shall be as set forth in Section 3 such Dividend Shares and subsequent sale of the Agreement (c) AOL shall not be required to accept Modems delivered prior to the Delivery Date, unless otherwise agreed by the parties. AOL shall not be responsible for any costs or expenses incurred by AVANTEL for Modems delivered or ready to be delivered prior to the Delivery Date. If AVANTEL fails to deliver Modems corresponding to an accepted Order by the Delivery Date in cities listed in Attachment 1Conversion Shares), and such Holder shall have the right to pursue all other remedies available to it at law or in equity (including, without modifications limitation, a decree of an Order by AOL according to the procedures established herein, AVANTEL will provide to AOL, an ongoing daily credit equal to one-half of the pro-rated daily Modem charges that would have applied to such Modems, which credit will cease when such Modems are delivered. If such Modems are not delivered within thirty (30) days of the Delivery Date, AOL may cancel, at no cost or liability to AOL, the unfilled portion of the Order for such Modemsspecific performance and/or injunctive relief).

Failure to Deliver. AOL (i) If the 25th Floor shall deliver 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 AVANTEL a rolling forecast have the 25th Floor available for occupancy by Tenant shall in no way affect the validity of its estimated Modem requirementsthe Lease or the inclusion of the 25th Floor in the Premises or the obligations of Landlord or Tenant under the Lease, six (6) months prior nor shall the same be construed in any way to extend the date AOL requires such Modems. Within sixty (60) days following 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 forecast was submitted 25th Floor is delivered to AVANTEL, AOL shall submit Tenant in the delivery condition herein. The provisions of this Rider Section 3(f)(i) are intended to constitute “an Order for Modems based on such forecast. In express provision to the event AOL does not submit an Order to AVANTEL based in whole or in part on such forecast contrary” within the sixty (60) days as set forth above, such Order be deemed an accepted Order and AVANTEL shall deliver to AOL the Modems on the delivery date specified by AOL, according with the term established below. Within ten (10) days after receipt meaning of an Order from AOL, AVANTEL shall notify AOL of its acceptance or rejection of such Order. If AVANTEL fails to provide AOL with an acceptance notice within such tenSection 223-day period, then such Order shall be deemed rejected by AVANTEL as a of the last day of such ten-day period. Modems corresponding to an accepted Order shall be delivered no later than one-hundred twenty (120) days from the AVANTEL's acceptance of the Order (the "Delivery Date"), unless otherwise agreed by the partiesNew York Real Property Law. (aii) In case that AOL modifies in any way the Order submitted to AVANTEL after the sixty (60Notwithstanding Rider Section 3(f)(i) days described above, when it has been accepted according if the 25th Floor shall not be available for Tenant’s occupancy for any reason on or before the six (6)-month anniversary of the Anticipated 25th Floor Delivery Date (subject to extension due to Force Majeure Causes, delays to the extent caused by Tenant, and/or delays caused by the holding over of the prior tenant (provided, Landlord shall diligently enforce all of its rights and remedies under such prior tenant’s lease with the previous paragraphrespect to such prior tenant’s holdover, AOL reimburse AVANTEL for reasonable, verifiable out-of-pocket expenses which may includeincluding, but are not limited to: non-recurring charges for local trunks, investments instituting holdover proceedings against such prior tenant; provided, further, such delay due to such holding over of the prior tenant shall not exceed ninety (90) days in incremental port capacitythe aggregate)), cancellation penalties from AVANTEL's suppliers. AVANTEL shall provide AOL with full documentation then, subject to verify these expensesRider Section 3(f)(iii), if any. Tenant may, as its sole remedy (b) Acceptance testing except as otherwise provided in the following sentence), rescind the exercise of an Order shall be as set forth in its option under this Rider Section 3 with respect thereto by giving notice of the Agreement (c) AOL shall not be required such rescission to accept Modems delivered prior to the Delivery Date, unless otherwise agreed by the parties. AOL shall not be responsible for any costs or expenses incurred by AVANTEL for Modems delivered or ready to be delivered prior to the Delivery Date. If AVANTEL fails to deliver Modems corresponding to an accepted Order by the Delivery Date in cities listed in Attachment 1, and without modifications of an Order by AOL according to the procedures established herein, AVANTEL will provide to AOL, an ongoing daily credit equal to one-half of the pro-rated daily Modem charges that would have applied to such Modems, which credit will cease when such Modems are delivered. If such Modems are not delivered Landlord within thirty (30) days after the six (6)-month anniversary of the Anticipated 25th Floor Delivery DateDate (as may be extended pursuant to this sentence). If Tenant shall not have elected to rescind the exercise of its option under this Rider Section 3 pursuant to the immediately preceding sentence within such 30-day period, AOL then, if the 25th Floor shall not be available for Tenant’s occupancy for any reason on or before the three (3)-month anniversary of the expiration of such 30-day period (subject to extension due to Force Majeure Causes (including holding over of the prior tenant) and/or delays to the extent caused by Tenant), then Tenant again may, as its sole remedy (subject to Rider Section 3(f)(iii)), rescind the exercise of its option under this Rider Section 3 with respect thereto by giving notice of such rescission to Landlord within thirty (30) days after such three (3)-month anniversary (as may cancelbe extended pursuant to this sentence). Landlord shall use commercially reasonable efforts to remove any prior tenant holding over in the 25th Floor. (iii) If the 25th Floor Delivery Date has not occurred on or before the date that is thirty (30) days following the Anticipated 25th Floor Delivery Date (as such date shall be extended one (1) day for each day of delay due to casualty, at no cost or liability to AOLcondemnation, Tenant Delay and/or Force Majeure Causes, the unfilled portion “25th Floor Delivery Outside Date”), then as Tenant’s sole and exclusive remedy in connection therewith (except as otherwise provided in Rider Section 3(f)(ii) above), the 25th Floor Rent Abatement Period shall be increased by one (1) day for each day following the 25th Floor Delivery Outside Date until the 25th Floor Delivery Date occurs. For the avoidance of the Order for such Modemsdoubt, if Tenant shall rescind its election pursuant to Rider Section 3(f)(ii) above, Tenant shall not be entitled to any abatement or credit under this Rider Section 3(f)(iii).

Failure to Deliver. AOL shall In the event that the Company (i) fails for any reason (other than as a result of the Holder’s failure, in the case of a Cash Exercise, to pay the applicable Exercise Price for the Warrant Shares) to deliver to AVANTEL a rolling forecast of its estimated Modem requirements, six (6) months prior Warrant Shares to the date AOL requires Holder as and when required under Sections 3(a) and 3(b), or (ii) fails to remove any restrictive legend from any outstanding Warrant Shares at the request of the Holder as and when required under the Securities Purchase Agreement (either such Modems. Within sixty failure being referred to herein as an “Exercise Default”), the Holder shall have the right to receive from the Company an amount equal to (60x) days following (N/365) multiplied by (y) the aggregate Market Price of the Warrant Shares (calculated as of the date on which the forecast applicable Exercise Notice was submitted delivered) which are the subject of such Exercise Default multiplied by (z) the lower of eighteen percent (18%) and the maximum rate permitted by applicable Governmental Requirements, where “N” equals the number of days elapsed between (1) the date on which such Exercise Default first occurred and (2) the date on which such Exercise Default is finally cured. Amounts payable under the preceding sentence shall be paid to AVANTEL, AOL shall submit an Order for Modems based the Holder in immediately available funds on such forecastor before the second Business Day following written notice from the Holder to the Company specifying the amount owed to it by the Company. In the event AOL does not submit an Order to AVANTEL based in whole that shares of Common Stock are purchased by or in part on such forecast within the sixty (60) days as set forth above, such Order be deemed an accepted Order and AVANTEL shall deliver to AOL the Modems on the delivery date specified by AOL, according with the term established below. Within ten (10) days after receipt of an Order from AOL, AVANTEL shall notify AOL of its acceptance or rejection of such Order. If AVANTEL fails to provide AOL with an acceptance notice within such ten-day period, then such Order shall be deemed rejected by AVANTEL as behalf of the last day Holder in order to make delivery on a sale effected in anticipation of such ten-day period. Modems corresponding receiving Warrant Shares upon an exercise, the Holder shall have the right to an accepted Order shall be delivered no later than one-hundred twenty (120) days receive from the AVANTEL's acceptance Company, in addition to the foregoing amounts, (i) the aggregate amount paid by or on behalf of the Order Holder for such shares of Common Stock minus (ii) the "Delivery Date"), unless otherwise agreed by aggregate amount of the parties. (a) In case that AOL modifies in any way the Order submitted to AVANTEL after the sixty (60) days described above, when it has been accepted according with the previous paragraph, AOL reimburse AVANTEL for reasonable, verifiable out-of-pocket expenses which may include, but are not limited to: non-recurring charges for local trunks, investments in incremental port capacity, cancellation penalties from AVANTEL's suppliers. AVANTEL shall provide AOL with full documentation to verify these expensesnet proceeds, if any. (b) Acceptance testing of an Order shall be as set forth in Section 3 , received by the Holder from the sale of the Agreement (c) AOL shall not be required to accept Modems Warrant Shares if and when delivered prior to the Delivery Date, unless otherwise agreed by the partiesHolder. AOL shall not be responsible for any costs or expenses incurred by AVANTEL for Modems delivered or ready to be delivered prior In addition to the Delivery Date. If AVANTEL fails to deliver Modems corresponding to foregoing rights arising upon an accepted Order by the Delivery Date in cities listed in Attachment 1, and without modifications of an Order by AOL according to the procedures established herein, AVANTEL will provide to AOL, an ongoing daily credit equal to one-half of the pro-rated daily Modem charges that would have applied to such Modems, which credit will cease when such Modems are delivered. If such Modems are not delivered within thirty (30) days of the Delivery Date, AOL may cancel, at no cost or liability to AOLExercise Default, the unfilled portion Holder shall have the right to pursue all other remedies available to it at law or in equity (including, without limitation, a decree of the Order for such Modemsspecific performance and/or injunctive relief).