Common use of Other Operations Clause in Contracts

Other Operations. If during the Lease Term Tenant, or any affiliate of Tenant, directly or indirectly operates, manages or has any interest whatsoever in any other factory, discount or manufacturer’s outlet store or business operated for a purpose or business similar to or in competition with all or part of the business permitted under Section 1.1 hereof within ten (10) air miles of any boundary line of the Center, it will injure Landlord’s ability and right to receive Percentage Rent (such ability and right being a major consideration for this Lease and the construction of the Center). Accordingly, if Tenant or its affiliates operates, manages or has such interest in any such store or business within such area (a “Radius Violation”), then, at Landlord’s option, either (i) Tenant’s Effective Rent (as defined below) shall be automatically increased by fifty percent (50%) calculated on a per diem basis for so long as the Radius Violation continues, such increase representing liquidated damages and not a penalty or (ii) one hundred percent (100%) of all sales made from any such other store or business shall be included in the computation of Gross Sales and Adjusted Gross Sales for the purpose of determining Percentage Rent under this Lease as though said Gross Sales and Adjusted Gross Sales had actually been made at, in or from the Premises. “Effective Rent” shall be Tenant’s Minimum Annual Rent plus the highest Percentage Rent payable under the Lease by Tenant during the three (3) Lease Years immediately preceding the Radius Violation. Landlord shall have all rights of inspection of books and records with respect to such stores or businesses as it has with respect to the Premises; and Tenant shall furnish to Landlord such reports with respect to Gross Sales and Adjusted Gross Sales from such other store or business as it is herein required to furnish with respect to the Premises. Notwithstanding anything herein to the contrary, the trade radius restriction shall not apply to Tenant’s stores currently in existence within the trade radius at the time of the execution of this Lease.

Other Operations. If during the Lease Term Tenant, or any affiliate of Tenant, Tenant directly or indirectly operates, manages or has any interest whatsoever in any other factory, discount or manufacturer’s outlet store or business operated for a purpose or business similar to or in competition with all or part of the business permitted under Section 1.1 hereof within ten five (105) air miles of any boundary line of the CenterCenter (the “Radius Area”), it will injure Landlord’s ability and right to receive Percentage Rent (such ability and right being a major consideration for this Lease and the construction of the Center). Further, Tenant acknowledges that the provisions of this Section 8.7 are a material inducement and consideration for Landlord’s agreement to enter into this Lease. The parties further acknowledge that Xxxxxxxx has agreed to enter into this Lease under the terms contained herein upon the representation by Tenant that this will be Tenant’s sole store within the Radius Area, and that the remedies in this Lease were bargained for consideration in exchange for such representation. Accordingly, if Tenant or its affiliates operates, manages or has such interest in any such store or business within such area (a “Radius Violation”), then, at Landlord’s option, either (i) Tenant’s Effective Rent (as defined below) shall be automatically increased by fifty percent (50%) calculated on a per diem basis for so long as the Radius Violation continues, such increase representing liquidated damages and not a penalty or (ii) one hundred percent (100%) of all sales made from any such other store or business shall be included in the computation of Gross Sales and Adjusted Gross Sales for the purpose of determining Percentage Rent under this Lease as though said Gross Sales and Adjusted Gross Sales had actually been made at, in or from the Premises. “Effective Rent” shall be Tenant’s Minimum Annual Rent plus the highest Percentage Rent payable under the Lease by Tenant during the three (3) Lease Years immediately preceding the Radius Violation. Landlord shall have all rights of inspection of books and records with respect to such stores or businesses as it has with respect to the Premises; and Tenant shall furnish to Landlord such reports with respect to Gross Sales and Adjusted Gross Sales from such other store or business as it is herein required to furnish with respect to the Premises. Notwithstanding anything herein to the contrary, the trade radius restriction shall not apply to Tenant’s stores currently in existence within the trade radius at the time of the execution of this Lease.

Other Operations. If during the Lease Term Tenant, or any affiliate of Tenant, Tenant directly or indirectly operates, manages or has any interest whatsoever in any other factory, discount or manufacturer’s outlet store or business operated under the same trade name as the Premises for a purpose or business similar to or in competition with all or any part of the business permitted under Section 1.1 hereof within ten (10) air miles of any boundary line I of the CenterBasic Lease Provisions within the radius set forth in Section U of the Basic Lease Provisions, it will injure Landlord’s 's ability and right to receive Percentage Rent (such ability and right being a major consideration for this Lease and the construction of the CenterLease). Accordingly, if Tenant or its affiliates operates, manages or has such interest in any such store or business within such area radius, one hundred percent (a “Radius Violation”), then, at Landlord’s option, either (i100%) Tenant’s Effective Rent (as defined below) of all Gross Sales made from any such other store or business shall be automatically increased by fifty percent (50%) calculated on a per diem basis included in the computation of Gross Sales for so long the purpose of determining Percentage Rent under this Lease as though said Gross Sales had actually been made at, in or from the Radius Violation continues, Premises. Landlord shall have all rights of inspection of books and records with respect to such increase representing liquidated damages and not a penalty store or (ii) business as it has with respect to the Premises. The inclusion of one hundred percent (100%) of all sales made from any such other store or business shall be included in the computation of Gross Sales and Adjusted Gross Sales for the purpose of determining Percentage Rent under this Lease is intended as though said Gross Sales a reasonable estimate and Adjusted Gross Sales had actually been made atliquidation of Landlord's damages because of Tenant's breach of the above stated radius restriction and as a settlement of the actual damages that might arise because of such breach. The parties agree that these damages are reasonable, in or from the Premises. “Effective Rent” shall be Tenant’s Minimum Annual Rent plus the highest Percentage Rent payable under the Lease by Tenant during the three (3) Lease Years immediately preceding the Radius Violation. Landlord shall have all rights of inspection of books and records with respect to such stores or businesses as it has with respect bear significant relation to the Premises; actual damages that Landlord might sustain, which damages Tenant and Tenant shall furnish Landlord agree would be uncertain and difficult to Landlord such reports with respect to Gross Sales prove, and Adjusted Gross Sales is not a penalty for Tenant's breach. The inclusion of the sales made from such other store in the computation of Gross Sales for the purpose of determining Percentage Rent under this Lease shall not be deemed permission for Tenant to continue to breach the radius restriction set forth above, and shall not preclude Landlord from seeking any other remedy (other than money damages) for such violation including, without limitation, specific performance or business termination of this Lease or Tenant's right to possession as it is herein required to furnish with respect to described in Article XVIII, which Landlord may pursue at any time while the Premisesbreach of the radius restriction continues. Notwithstanding anything herein to the contraryFor purposes of this Section 8.5, the trade radius restriction term Tenant shall not apply to include Tenant’s stores currently in existence within , the trade radius at the time Guarantor, that being The New York Restaurant Group, L.L.C., and all of their respective successors and assigns. The obligations of the execution Guarantor are contained in the Lease Guarantee, a copy of this Lease.which is attached hereto as Exhibit L.

Other Operations. If during the Lease Term Tenant, or any affiliate of Tenant, directly or indirectly operates, manages or has any interest whatsoever in any other factory, discount or manufacturer’s outlet store or business operated for a purpose or business similar to or in competition with all or part of the business permitted under Section 1.1 hereof within ten any of the following: (101) Thirty-nine (39) air miles of miles, measured in any boundary line direction from the boundaries of the Centerparcel on which the Center is situated, excluding those portions of Bronx County other than Community Districts 8 or 12 in the Bronx, which Community Districts are included within the geographic scope of the radius; and (2) Manhattan, it will injure Landlord’s ability and right to receive Percentage Rent (such ability and right being a major consideration for this Lease and the construction of the Center). Accordingly, if Tenant or its affiliates operates, manages or has such interest in any such store or business within such area (a “Radius Violation”), then, at Landlord’s option, either (i) Tenant’s Effective Rent (as defined below) shall be automatically increased by fifty percent (50%) calculated on a per diem basis for so long as the Radius Violation continues, such increase representing liquidated damages and not a penalty or (ii) one hundred percent (100%) of all sales made from any such other store or business shall be included in the computation of Gross Sales and Adjusted Gross Sales for the purpose of determining Percentage Rent under this Lease as though said Gross Sales and Adjusted Gross Sales had actually been made at, in or from the Premises. “Effective Rent” shall be Tenant’s Minimum Annual Rent plus the highest Percentage Rent payable under the Lease by Tenant during the three (3) Lease Years immediately preceding the Radius Violation. Landlord shall have all rights of inspection of books and records with respect to such stores or businesses as it has with respect to the Premises; and Tenant shall furnish to Landlord such reports with respect to Gross Sales and Adjusted Gross Sales from such other store or business as it is herein required to furnish with respect to the Premises. Notwithstanding anything herein to the contrary, the trade radius restriction shall not apply to Tenant’s stores currently in existence within the trade radius at the time of the execution of this Lease.

Other Operations. If during the Lease Term Tenant, or any affiliate of Tenant, directly or indirectly operates, manages or has any interest whatsoever in any other factory, discount or manufacturer’s outlet store or business operated for a purpose or business similar to or in competition with all or part of the business permitted under Section 1.1 hereof within ten thirty (1030) air miles of any boundary line of the Center, it will injure Landlord’s ability and right to receive Percentage Rent (such ability and right being a major consideration for this Lease and the construction of the Center). Accordingly, if Tenant or its affiliates operates, manages or has such interest in any such store or business within such area (a “Radius Violation”), then, at Landlord’s option, either (i) Tenant’s Effective Rent (as defined below) shall be automatically increased by fifty percent (50%) calculated on a per diem basis for so long as the Radius Violation continues, such increase representing liquidated damages and not a penalty or (ii) one hundred percent (100%) of all sales made from any such other store or business shall be included in the computation of Gross Sales and Adjusted Gross Sales for the purpose of determining Percentage Rent under this Lease as though said Gross Sales and Adjusted Gross Sales had actually been made at, in or from the Premises. “Effective Rent” shall be Tenant’s Minimum Annual Rent plus the highest Percentage Rent payable under the Lease by Tenant during the three (3) Lease Years immediately preceding the Radius Violation. Landlord shall have all rights of inspection of books and records with respect to such stores or businesses as it has with respect to the Premises; and Tenant shall furnish to Landlord such reports with respect to Gross Sales and Adjusted Gross Sales from such other store or business as it is herein required to furnish with respect to the Premises. Notwithstanding anything herein to the contrary, the trade radius restriction shall not apply to Tenant’s stores currently in existence within the trade radius at the time of the execution of this Lease.

Other Operations. If Tenant hereby agrees that if during the Lease Term TenantTerm, Tenant or any affiliate entity controlling, controlled by or under common control with Tenant (any of Tenantthe foregoing an “Affiliate”), as well as the officers and/or directors of Tenant listed in Exhibit “F”, directly or indirectly operates, manages or has any interest whatsoever in any other factorybusiness located in Cxxxx County, discount Nevada (a) based in any material respect upon the concept, décor, theme or manufacturer’s outlet store or business operated for a purpose or business similar to or in competition with all or part design of the business permitted under Section 1.1 hereof within ten Premises or (10b) air miles of which in any boundary line of the Centerway uses a Required Trade Name (each a “Competing Establishment”), it such Competing Establishment will injure Landlord’s ability and right to receive Percentage Rent (such ability and right being a major consideration for this Lease and the construction of the CenterLease). Accordingly, if Tenant Tenant, including Tenant’s officers and/or directors listed in Exhibit “F”, directly or its affiliates indirectly operates, manages or has any such interest in any such store or business within such area (a “Radius Violation”)Competing Establishment, thenLandlord, at Landlord’s option, either (i) Tenant’s Effective Rent (as defined below) shall be automatically increased by fifty percent (50%) calculated on a per diem basis for so long as its option may terminate this Lease pursuant to Article XVII of the Radius Violation continues, such increase representing liquidated damages and not a penalty Lease or (ii) elect to have one hundred percent (100%) of all sales made from any such other store or business shall be Competing Establishment included in the computation of Gross Sales and Adjusted Gross Sales for the purpose of determining Percentage Rent under this Lease as though said Gross Sales and Adjusted Gross Sales had actually been made at, in or from the Premises. “Effective Rent” shall be Tenant’s Minimum Annual Rent plus the highest Percentage Rent payable under the Lease by Tenant during the three (3) Lease Years immediately preceding the Radius Violation. hereby agree that Landlord shall have all rights of inspection of books and records with respect to any such stores or businesses Competing Establishment as it Landlord has with respect to the Premises; and Tenant shall furnish to Landlord such reports with respect to Gross Sales and Adjusted Gross Sales from such other store or business Competing Establishment as it Tenant is herein required to furnish with respect to the Premises. Notwithstanding anything herein to the contrary, the trade radius restriction shall not apply to Tenant’s stores currently in existence within the trade radius at the time of the execution of this Lease.