Common use of Conflicting Businesses Prohibited Clause in Contracts

Conflicting Businesses Prohibited. Landlord and Tenant hereby recognize and acknowledge (a) that the Minimum Rent and the Percentage Rent payable by Tenant to Landlord under this Agreement have been established at the levels specified in this Agreement upon the premise and with the expectation that the Minimum Rent and Percentage Rent may determine the market value of the Leased Property and constitute a material consideration for Landlord's willingness to execute this Agreement and thereby lease and demise the Leased Property to Tenant, and (b) that the operation, management, franchising or ownership by Tenant or an Affiliated Person of Tenant of another Facility of the Permitted Use as specified in Section 4.1.1 above (such other Facility being referred to herein as a "Conflicting Business") within a ten (10) mile radius of the Leased Property (the "Proscribed Area") will tend to result in a decrease in the amount of Total Facility Revenue which would otherwise reasonably be expected to be made upon, within and from the Leased Property and thereby result in a reduction of the market value of the Leased Property and a reduction in the Rent which would otherwise be received by Landlord pursuant to this Agreement in the absence of the operation of a Conflicting Business by Tenant or any such Affiliated Person of Tenant within the Proscribed Area. Accordingly, Tenant on behalf of itself and such Affiliated Persons, agrees that during the Term of this Agreement neither Tenant, nor any Affiliated Person of Tenant shall open, develop, operate, manage, franchise, own, lease or have any other interest in a Conflicting Business within the Proscribed Area. In the event of a breach of this covenant, Landlord shall have the right to terminate this Agreement and retain the Security Deposit, and pursue any other remedy at law available to Landlord, including injunctive relief, or in lieu thereof but not in addition thereto, Landlord may, at its election, require that forty percent (40%) of all revenues (calculated in the same manner as if such revenues were Total Facility Revenue) of such Conflicting Business opened, operated, managed, leased, developed or owned by Tenant or any affiliated person of Tenant as defined in this Section within the Proscribed Area be included in the amount of Total Facility Revenue made from the Leased Property for purposes of the determination and calculation of the Percentage Rent due from Tenant to Landlord under this Agreement (i.e., as though such Total Facility Revenue of the Conflicting Business had actually been made upon, within and from the Leased Property). If Landlord so elects, all provisions of Article 17 of this Agreement relating to Tenant's maintenance and submission to Landlord of books, records and statements shall be applicable to all books, records and statements pertaining to any such Conflicting Businesses. Further, Tenant agrees that Tenant's sole business shall be to lease, and Tenant shall not incur any expenses or liability related to any business or activity other than leasing and operating, the Leased Property and other premises owned or hereinafter owned by Landlord or its Affiliated Persons pursuant to terms acceptable to Landlord and Tenant. Landlord will not unreasonably withhold its consent to a waiver of this Conflicting Business restriction for any Conflicting Business which is approximately five (5) or more miles away so long as Landlord is provided with evidence reasonably acceptable to it that the proposed Conflicting Business is not likely to draw from the demographic base otherwise available to support full occupancy of the Facility and/or a revenue protection agreement acceptable to Landlord with respect to adverse affects on Facility occupancy or residents tied to the Facility's identified demographic base served at the Conflicting Business.

Conflicting Businesses Prohibited. Landlord and Tenant hereby recognize and acknowledge (a) that the Minimum Rent and the Percentage Rent payable by Tenant to Landlord under this Agreement have been established at the levels specified in this Agreement upon the premise and with the expectation that the Minimum Rent and Percentage Rent may determine the market value of the Leased Property and constitute a material consideration for Landlord's willingness to execute this Agreement and thereby lease and demise the Leased Property to Tenant, and (b) that the operation, management, franchising or ownership by Tenant or an Affiliated Person of Tenant of another Facility of the Permitted Use as specified in Section 4.1.1 above (such other Facility being referred to herein as a "Conflicting Business") within a ten (10) mile radius of the Leased Property (the "Proscribed Area") will tend to result in a decrease in the amount of Total Facility Revenue which would otherwise reasonably be expected to be made upon, within and from the Leased Property and thereby result in a reduction of the market value of the Leased Property and a reduction in the Rent which would otherwise be received by Landlord pursuant to this Agreement in the absence of the operation of a Conflicting Business by Tenant or any such Affiliated Person of Tenant within the Proscribed Area. An Affiliated Person's development, operation or ownership of a senior living community consisting of single family patio or garden homes shall not constitute a Conflicting Business under this Section 4.3 Accordingly, Tenant on behalf of itself and such Affiliated Persons, agrees that during the Term of this Agreement neither Tenant, nor any Affiliated Person of Tenant shall open, develop, operate, manage, franchise, own, lease or have any other interest in a Conflicting Business within the Proscribed Area. In the event of a breach of this covenant, Landlord shall have the right to terminate this Agreement and retain the Security Deposit, and pursue any other remedy at law available to Landlord, including injunctive relief, or in lieu thereof but not in addition thereto, Landlord may, at its election, require that forty percent (40%) of all revenues (calculated in the same manner as if such revenues were Total Facility Revenue) of such Conflicting Business opened, operated, managed, leased, developed or owned by Tenant or any affiliated person of Tenant as defined in this Section within the Proscribed Area be included in the amount of Total Facility Revenue made from the Leased Property for purposes of the determination and calculation of the Percentage Rent due from Tenant to Landlord under this Agreement (i.e., as though such Total Facility Revenue of the Conflicting Business had actually been made upon, within and from the Leased Property). If Landlord so elects, all provisions of Article 17 of this Agreement relating to Tenant's maintenance and submission to Landlord of books, records and statements shall be applicable to all books, records and statements pertaining to any such Conflicting Businesses. Further, Tenant agrees that Tenant's sole business shall be to lease, and Tenant shall not incur any expenses or liability related to any business or activity other than leasing and operating, the Leased Property Somerby Properties and other premises owned or hereinafter owned by Landlord or its Affiliated Persons pursuant to terms acceptable to Landlord and Tenant. Landlord will not unreasonably withhold its consent to a waiver of this Conflicting Business restriction for any Conflicting Business which is approximately five (5) or more miles away so long as Landlord is provided with evidence reasonably acceptable to it that the proposed Conflicting Business is not likely to draw from the demographic base otherwise available to support full occupancy of the Facility and/or a revenue protection agreement acceptable to Landlord with respect to adverse affects on Facility occupancy or residents tied to the Facility's identified demographic base served at the Conflicting Business.

Conflicting Businesses Prohibited. Landlord and Tenant hereby recognize and acknowledge acknowledge: (a) that the Minimum Rent and the Percentage Rent payable by Tenant to Landlord under this Agreement have been established at the levels specified in this Agreement upon the premise and with the expectation that the Minimum Rent and Percentage Rent may determine the market value will constitute a material part of the Leased Property and constitute total rents payable by Tenant to Landlord under this Agreement, (b) that the expectation of receiving Percentage Rent constitutes a material consideration for Landlord's willingness to execute this Agreement and thereby lease and demise the Leased Property to Tenant, and (bc) that the operation, development, management, franchising or ownership by Tenant Tenant, Wyndham or an Affiliated Person of Tenant or Wyndham, of another Facility full service hotel of the Permitted Use as specified in Section 4.1.1 above same brand contemplated herein or any Wyndham Garden Hotel (such other Facility hotel being referred to herein as a "Conflicting Business") within the area designated on EXHIBIT "I" attached hereto and by this reference made a ten (10) mile radius of the Leased Property part hereof (the "Proscribed Area") will tend to result in a decrease in the amount of Total Facility Rooms Revenue which would otherwise reasonably be expected to be made upon, within and from the Leased Property and thereby result in a reduction of the market value of the Leased Property and a reduction in the Percentage Rent which would otherwise be received payable by Tenant to Landlord pursuant to this Agreement in the absence of the operation of a Conflicting Business by Tenant or any such Affiliated Person of Tenant or Wyndham within the Proscribed Area. Accordingly, Tenant on behalf of itself and such its Affiliated Persons, agrees and Wyndham and Manager (who have joined in the execution of this Lease to acknowledge the restriction herein), agree that subject to any qualifications in EXHIBIT "I", during the Term of this Agreement neither Tenant, Wyndham, Manager nor any Affiliated Person of Tenant Tenant, Wyndham or Manager shall open, develop, operate, manage, franchise, own, lease or have any other interest in a Conflicting Business within the Proscribed Area. In the event of a breach of this covenant, Landlord shall have the right to terminate this Agreement and retain the Security Deposit, and pursue any other remedy at law available to Landlord, including injunctive relief, or in lieu thereof but not in addition thereto, Landlord may, at its election, require that forty percent (40%) of all revenues (calculated in the same manner as if such revenues were Total Facility Revenue) of such Conflicting Business opened, operated, managed, leased, developed or owned by Tenant or any affiliated person of Tenant as defined in this Section within the Proscribed Area be included in the amount of Total Facility Revenue made from the Leased Property for purposes of the determination and calculation of the Percentage Rent due from Tenant to Landlord under this Agreement (i.e., as though such Total Facility Revenue of the Conflicting Business had actually been made upon, within and from the Leased Property). If Landlord so elects, all provisions of Article 17 of this Agreement relating to Tenant's maintenance and submission to Landlord of books, records and statements shall be applicable to all books, records and statements pertaining to any such Conflicting Businesses. Further, Tenant agrees that Tenant's sole business shall be to leaselease and operate, and Tenant shall not incur any expenses or liability related to any business or activity other than leasing and operating, the Leased Property, the other Acquisition Property and the Development Properties, and other premises owned or hereinafter owned by Landlord or its Affiliated Persons and leased to Tenant pursuant to terms acceptable to Landlord and Tenant. Landlord will not unreasonably withhold its consent to a waiver of this Conflicting Business restriction for any Conflicting Business which is approximately five (5) or more miles away so long as Landlord is provided with evidence reasonably acceptable to it that the proposed Conflicting Business is not likely to draw from the demographic base otherwise available to support full occupancy of the Facility and/or a revenue protection agreement acceptable to Landlord with respect to adverse affects on Facility occupancy or residents tied to the Facility's identified demographic base served at the Conflicting Business.

Conflicting Businesses Prohibited. Landlord and Tenant hereby recognize and acknowledge (a) that the Minimum Base Rent and the Percentage Rent payable by Tenant to Landlord under this Agreement Lease have been established at the levels specified in this Agreement Lease upon the premise and with the expectation that the Minimum Rent and Percentage Rent may determine the market value will constitute a material part of the Leased Property and constitute total rents payable by Tenant to Landlord under this Lease, (b) that the expectation of receiving Percentage Rent constitutes a material consideration for Landlord's willingness to execute this Agreement Lease and thereby lease and demise the Leased Property Premises to Tenant, and (bc) that the operation, management, franchising or ownership by Tenant or an Affiliated Person Affiliate of Tenant of another Facility business of the Permitted Use as type specified in Section 4.1.1 3.1 above or any substantially similar or competing business (other than a full service hotel as hereinafter defined (such other Facility business or substantially similar or competing business being referred to herein as a "Conflicting Business") within a ten (10) mile radius of the Leased Property trade area depicted on Exhibit D attached hereto (the "Proscribed Area") will tend to result in a decrease in the amount of Total Facility Revenue Gross Receipts which would otherwise reasonably be expected to be made upon, within and from the Leased Property Premises and thereby result in a reduction of the market value of the Leased Property and a reduction in the Percentage Rent which would otherwise be received payable by Tenant to Landlord pursuant to this Agreement Lease in the absence of the operation of a Conflicting Business by Tenant or any such Affiliated Person Affiliate of Tenant (as hereinafter defined) within the Proscribed Area. Accordingly, Tenant on behalf of itself and such Affiliated Personsits Affiliates, agrees and Tenant's manager (who has joined in the execution of this Lease solely to acknowledge the restriction herein) agree that during the Term of this Agreement Lease neither Tenant, nor any Affiliated Person Affiliate of Tenant nor Tenant's manager, shall open, develop, operate, manage, franchise, own, lease own or have any other interest in a Conflicting Business within the Proscribed Area. In the event of a breach of this covenant, Landlord shall have the right in addition to terminate this Agreement and retain the Security Deposit, and pursue any other remedy at law otherwise available to Landlord, including injunctive relief, or in lieu thereof but not in addition thereto, Landlord may, at its election, require that forty percent (40%) of all revenues (calculated in the same manner as if such revenues were Total Facility Revenue) of Gross Receipts made from any such Conflicting Business opened, operated, managed, leased, developed or owned by Tenant or any affiliated person affiliate or subsidiary of Tenant as defined in this Section within the Proscribed Area be included in the amount of Total Facility Revenue Gross Receipts made from the Leased Property Premises for purposes of the determination and calculation of the Percentage Rent due from Tenant to Landlord under this Agreement Lease (i.e., as though such Total Facility Revenue Gross Receipts of the Conflicting Business had actually been made upon, within and from the Leased PropertyPremises). If Landlord so elects, all provisions of Article 17 IV of this Agreement Lease relating to Tenant's maintenance and submission to Landlord of books, records and statements shall be applicable to all books, records and statements pertaining to any such Conflicting Businesses. However, any such Conflicting Business existing within the Proscribed Area on the date of this Lease may continue to be operated, managed, conducted and owned by Tenant or any Affiliate or subsidiary of Tenant in the same manner as on the date of this Lease. Further, Tenant agrees that Tenant's sole business shall be to lease, and Tenant shall not incur any expenses or liability related to any business or activity other than leasing and operating, the Leased Property Premises, the premises contemplated by the Other Lease (as hereinafter defined), and other premises owned or hereinafter owned by Landlord or its Affiliated Persons Affiliates pursuant to terms acceptable to Landlord and Tenant. Landlord will not unreasonably withhold its consent to For purposes hereof, "Full service hotel" shall mean, generally, a waiver of this Conflicting Business restriction for any Conflicting Business which is approximately five (5) or more miles away so long hotel with a restaurant, lounge facilities and meeting space as Landlord is provided with evidence reasonably acceptable to it that the proposed Conflicting Business is not likely to draw from the demographic base otherwise available to support full occupancy of the Facility and/or a revenue protection agreement acceptable to Landlord with respect to adverse affects on Facility occupancy or residents tied to the Facility's identified demographic base served at the Conflicting Businesswell as minimum service levels often including bell service and room service.

Conflicting Businesses Prohibited. Landlord and Tenant hereby recognize and acknowledge (a) that the Minimum Rent and the Percentage Additional Minimum Rent payable by Tenant to Landlord under this Agreement have has been established at the levels specified in this Agreement upon the premise and with the expectation that the Minimum Rent and Percentage Additional Minimum Rent may determine the market value of the Leased Property and constitute a material consideration for Landlord's ’s willingness to execute this Agreement and thereby lease and demise the Leased Property to Tenant, and (b) that the operation, management, franchising or ownership by Tenant, an Affiliate of Tenant or an Affiliated Person a member of Tenant the Xxx Family of another Facility facility for the same category of the use and Permitted Use as specified in Section 4.1.1 above for a Facility under this Lease (such other Facility facility being referred to herein as a "“Conflicting Business"”) within a [ten (10) )] mile radius of the Leased Property applicable Facility (the "“Proscribed Area"”) will tend to result in a decrease in the amount of Total Facility Revenue which would otherwise reasonably be expected to be made upon, within and from the Leased Property applicable Facility and thereby result in a reduction of the market value of the Leased applicable Facility Property and may result in a reduction in the Minimum Rent and Additional Minimum Rent which would otherwise be received by Landlord pursuant to this Agreement during an Extended Term in the absence of the operation of a Conflicting Business by Tenant Tenant, any Affiliate of Tenant, or any such Affiliated Person a member of Tenant the Xxx Family within the Proscribed Area. Accordingly, Tenant on behalf of itself itself, its Affiliates and such Affiliated Personsthe Xxx Family, agrees that during the Term of this Agreement Term, neither Tenant, Tenant nor any Affiliated Person Affiliate of Tenant nor any member of the Xxx Family, shall open, develop, operate, manage, franchise, own, lease or have any other interest in a Conflicting Business within the Proscribed Area, except for the activities or facilities set forth on Exhibit K attached hereto. In the event of a breach of this covenant, Landlord shall have the right to enforce such remedies as are provided herein including the right to terminate this Agreement and retain as to the Security Deposit, Facility in question and pursue any other remedy available to Landlord at law available to Landlordor in equity, including injunctive relief, or in lieu thereof but not in addition thereto, Landlord may, at its election, require that forty percent (40%) of all revenues (calculated in the same manner as if such revenues were Total Facility Revenue) of such Conflicting Business opened, operated, managed, leased, developed or owned by Tenant or any affiliated person of Tenant as defined in this Section within the Proscribed Area be included in the amount of Total Facility Revenue made from the Leased Property for purposes of the determination and calculation of the Percentage Rent due from Tenant to Landlord under this Agreement (i.e., as though such Total Facility Revenue of the Conflicting Business had actually been made upon, within and from the Leased Property). If Landlord so elects, all provisions of Article 17 of this Agreement relating to Tenant's maintenance and submission to Landlord of books, records and statements shall be applicable to all books, records and statements pertaining to any such Conflicting Businesses. Further, Tenant agrees that Tenant's sole business shall be to lease, and Tenant shall not incur any expenses or liability related to any business or activity other than leasing and operating, the Leased Property and other premises owned or hereinafter owned by Landlord or its Affiliated Persons pursuant to terms acceptable to Landlord and Tenant. Landlord will not unreasonably withhold its consent to a waiver of this Conflicting Business restriction for any Conflicting Business which is approximately five (5) or more miles away so long as Landlord is provided with evidence reasonably acceptable to it that the proposed Conflicting Business is not likely to draw from the demographic base otherwise available to support full occupancy of the Facility and/or a revenue protection agreement acceptable to Landlord with respect to adverse affects on Facility occupancy or residents tied to the Facility's ’s identified demographic base served at the Conflicting Business. Further, Tenant agrees that each Subtenant’s sole business shall be to lease and operate its respective Facility and Facility Property, and activities incidental thereto and shall not incur any expenses or liability related to any other business or activity, other than its obligations under the Guaranty, this Lease, its applicable sublease with Tenant and other related documents.

Conflicting Businesses Prohibited. Landlord and Tenant hereby recognize and acknowledge (a) that the Minimum Rent and the Percentage Rent payable by Tenant to Landlord under this Agreement have been established at the levels specified in this Agreement upon the premise and with the expectation that the Minimum Rent and Percentage Rent may determine the market value of the Leased Property and constitute a material consideration for Landlord's willingness to execute this Agreement and thereby lease and demise the Leased Property to Tenant, and (b) that the operation, management, franchising or ownership by Tenant or an Affiliated Person of Tenant of another Facility facility of the Permitted Use as specified in Section 4.1.1 above (such other Facility being referred to herein as a "“Conflicting Business"”) within a ten (10) mile radius of the Leased Property Denver-Aurora-Lakewood, Colorado Metropolitan Statistical Area (the "“Proscribed Area"”) during the Term may decrease the likelihood that Tenant will tend be able to result in a decrease in the amount of Total Facility Revenue which would otherwise reasonably be expected to be made uponsuccessfully carry out Tenant’s obligations hereunder, within and from the Leased Property and thereby may result in a reduction of the market value of the Leased Property and a reduction in the Rent which would otherwise be received by Landlord pursuant to this Agreement in the absence of the operation of a Conflicting Business by Tenant or any such Affiliated Person of Tenant within the Proscribed AreaProperty. Accordingly, Tenant on behalf of itself and such Affiliated PersonsPerson, agrees that during the Term of this Agreement neither Tenant, nor any Affiliated Person of Tenant shall open, develop, operate, manage, franchise, own, lease or have any other interest in a Conflicting Business within the Proscribed AreaArea without Landlord’s permission. In the event of a breach of this covenant, Landlord shall have the right to terminate this Agreement and retain the Security DepositAgreement, and pursue any other remedy at law available to Landlord, Landlord including injunctive relief, or in lieu thereof but not in addition thereto, Landlord may, at its election, require that forty percent (40%) of all revenues (calculated in the same manner as if such revenues were Total Facility Revenue) of such Conflicting Business opened, operated, managed, leased, developed or owned by Tenant or any affiliated person of Tenant as defined in this Section within the Proscribed Area be included in the amount of Total Facility Revenue made from the Leased Property for purposes of the determination and calculation of the Percentage Rent due from Tenant to Landlord under this Agreement (i.e., as though such Total Facility Revenue of the Conflicting Business had actually been made upon, within and from the Leased Property). If Landlord so elects, all provisions of Article 17 of this Agreement relating to Tenant's ’s maintenance and submission to Landlord of books, records and statements shall be applicable during the Term to all books, records and statements pertaining to any such Conflicting BusinessesBusinesses of Tenant or an Affiliated Person of Tenant. Further, Tenant agrees that Tenant's ’s sole business shall be to leaselease the Leased Property and operate the Excluded Businesses, and Tenant shall not incur any expenses or liability related to any business or activity other than such leasing and operating, a the Leased Property and other premises owned or hereinafter owned by Landlord or its Affiliated Persons pursuant to terms acceptable to Landlord and Tenant. Tenant has permission from Landlord will to apply for a liquor license, either hotel and restaurant or tavern, for the sale and service of alcoholic beverages in the Facility. Tenant agrees to comply with any and all laws, ordinances, rules, orders, and regulations of any governmental authority which are applicable to the conduct of Tenant's sale and service business on the Facility; provided, however, that Tenant shall not unreasonably withhold its consent hereby be under any obligation to a waiver of this Conflicting Business restriction for make any Conflicting Business which is approximately five (5) structural change in or more miles away so long as Landlord is provided with evidence reasonably acceptable to it that the proposed Conflicting Business is not likely to draw from the demographic base otherwise available to support full occupancy alteration of the Facility and/or a revenue protection agreement acceptable to Facility. Landlord with respect to adverse affects on Facility occupancy or residents tied consents to the application by a non-for-profit corporation, consisting of residents of the Facility, to apply for a liquor license for the sale and service of alcoholic beverages within a portion of the Facilities designated by Tenant. Such not-for-profit corporation complies with any and all laws, ordinances, rules, orders, and regulations of any governmental authority which are applicable to the conduct of such not-for-profit corporation's identified demographic base served sale and service business at the Conflicting BusinessFacility.

Conflicting Businesses Prohibited. Landlord and Tenant hereby recognize and acknowledge (a) that the Minimum Rent and the Percentage Rent payable by Tenant to Landlord under this Agreement have been established at the levels specified in this Agreement upon the premise and with the expectation that the Minimum Rent and Percentage Rent may determine the market value of the Leased Property and constitute a material consideration for Landlord's willingness to execute this Agreement and thereby lease and demise the Leased Property to Tenant, and (b) that the operation, management, franchising or ownership by Tenant or an Affiliated Person of Tenant of another Facility of the Permitted Use as specified in Section 4.1.1 above (such other Facility being referred to herein as a "Conflicting Business") within a ten five (105) mile radius of the Leased Property (the "Proscribed Area") will tend to result in a decrease in the amount of Total Facility Revenue which would otherwise reasonably be expected to be made upon, within and from the Leased Property and thereby result in a reduction of the market value of the Leased Property and a reduction in the Rent which would otherwise be received by Landlord pursuant to this Agreement in the absence of the operation of a Conflicting Business by Tenant or any such Affiliated Person of Tenant within the Proscribed Area. Accordingly, Tenant on behalf of itself and such Affiliated Persons, agrees that during the Term of this Agreement neither Tenant, nor any Affiliated Person of Tenant shall open, develop, operate, manage, franchise, own, lease or have any other interest in a Conflicting Business within the Proscribed Area. In the event of a breach of this covenant, Landlord shall have the right to terminate this Agreement and retain the Security Deposit, and pursue any other remedy at law available to Landlord, including injunctive relief, or in lieu thereof but not in addition thereto, Landlord may, at its election, require that forty percent (40%) of all revenues (calculated in the same manner as if such revenues were Total Facility Revenue) of such Conflicting Business opened, operated, managed, leased, developed or owned by Tenant or any affiliated person of Tenant as defined in this Section within the Proscribed Area be included in the amount of Total Facility Revenue made from the Leased Property for purposes of the determination and calculation of the Percentage Rent due from Tenant to Landlord under this Agreement (i.e., as though such Total Facility Revenue of the Conflicting Business had actually been made upon, within and from the Leased Property). If Landlord so elects, all provisions of Article 17 of this Agreement relating to Tenant's maintenance and submission to Landlord of books, records and statements shall be applicable to all books, records and statements pertaining to any such Conflicting Businesses. Further, Tenant agrees that Tenant's sole business shall be to lease, and Tenant shall not incur any expenses or liability related to any business or activity other than leasing and operating, the Leased Property and other premises owned or hereinafter owned by Landlord or its Affiliated Persons pursuant to terms acceptable to Landlord and Tenant. Landlord will not unreasonably withhold its consent to a waiver of this Conflicting Business restriction for any Conflicting Business which is approximately five (5) or more miles away so long as Landlord is provided with evidence reasonably acceptable to it that the proposed Conflicting Business is not likely to draw from the demographic base otherwise available to support full occupancy of the Facility and/or a revenue protection agreement acceptable to Landlord with respect to adverse affects on Facility occupancy or residents tied to the Facility's identified demographic base served at the Conflicting Business.

Conflicting Businesses Prohibited. Landlord and Tenant hereby recognize and acknowledge (a) that the Minimum Rent and the Percentage Rent payable by Tenant to Landlord under this Agreement have Lease has been established at the levels specified in this Agreement Lease upon the premise and with the expectation that the Minimum Rent and Percentage Rent may determine the market value of the Leased Property and constitute a material consideration for Landlord's ’s willingness to execute this Agreement Lease and thereby lease and demise the Leased Property to Tenant, and (b) that the operation, management, franchising or ownership by Tenant or an Affiliated Person of Tenant of another Facility facility for the operation of the Permitted Use as specified in Section 4.1.1 above a Theme Park (such other Facility facility being referred to herein as a "“Conflicting Business"”) within a ten one hundred fifty (10150) mile radius of the Leased Property (the "“Proscribed Area"”) will would tend to result in a decrease in the amount of Total Facility Revenue which would otherwise reasonably be expected to be made upon, within and from the Leased Property Property, and thereby result in a reduction of the market value of the Leased Property and a reduction in the Rent which would otherwise be received by Landlord pursuant to this Agreement Lease in the absence of the operation of a Conflicting Business by Tenant or any such Affiliated Person of Tenant within the Proscribed Area. Accordingly, Tenant on behalf of itself and such Affiliated Persons, agrees that during the Term of this Agreement Lease, subject to provisions of this Section 4.5, neither Tenant, nor any Affiliated Person of Tenant shall open, develop, operate, manage, franchise, own, lease or have any other interest in a Conflicting Business within the Proscribed AreaArea without the prior written consent of the Landlord. In the event of a breach of this covenant, Landlord shall have the right to terminate this Agreement Lease and retain the Security Deposit, and pursue any other remedy at law available to Landlord, including injunctive relief, or in lieu thereof but not in addition thereto, Landlord may, at its election, require that forty percent (40%) of all revenues (calculated in the same manner as if such revenues were Total Facility Revenue) of such Conflicting Business opened, operated, managed, leased, developed or owned by Tenant or any affiliated person of Tenant as defined in this Section within the Proscribed Area be included in the amount of Total Facility Revenue made from the Leased Property for purposes of the determination and calculation of the Percentage Rent due from Tenant to Landlord under this Agreement (i.e., as though such Total Facility Revenue of the Conflicting Business had actually been made upon, within and from the Leased Property). If Landlord so elects, all provisions of Article 17 of this Agreement relating to Tenant's maintenance and submission to Landlord of books, records and statements shall be applicable to all books, records and statements pertaining to any such Conflicting Businesses. Further, Tenant agrees that Tenant's sole business shall be to lease, and Tenant shall not incur any expenses or liability related to any business or activity other than leasing and operating, the Leased Property and other premises owned or hereinafter owned by Landlord or its Affiliated Persons pursuant to terms acceptable to Landlord and Tenant. Landlord will not unreasonably withhold its consent to a waiver of this Conflicting Business restriction for any Conflicting Business which is approximately five (5) or more miles away so long as Landlord is provided with evidence reasonably acceptable to it that the proposed Conflicting Business is not likely to draw from the demographic base otherwise available to support full occupancy of the Facility and/or a revenue protection agreement acceptable to Landlord with respect to adverse affects on Facility occupancy or residents tied to the Facility's identified demographic base served at the Conflicting Business.