Common use of Other Operations Clause in Contracts

Other Operations. If during the Term Tenant directly or indirectly operates, manages or has any interest whatsoever in any other 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 I of the Basic Lease Provisions within the radius set forth in Section U of the Basic Lease Provisions, it will injure Landlord's ability and right to receive Percentage Rent (such ability and right being a major consideration for this Lease). Accordingly, if Tenant operates, manages or has such interest in any store or business within such radius, one hundred percent (100%) of all Gross Sales made from any such other store or business shall be included in the computation of Gross Sales for the purpose of determining Percentage Rent under this Lease as though said Gross Sales had actually been made at, in or from the Premises. Landlord shall have all rights of inspection of books and records with respect to such store or 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 in the computation of Gross Sales for the purpose of determining Percentage Rent under this Lease is intended as a reasonable estimate and liquidation 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, bear significant relation to the actual damages that Landlord might sustain, which damages Tenant and Landlord agree would be uncertain and difficult to prove, and 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 termination of this Lease or Tenant's right to possession as described in Article XVIII, which Landlord may pursue at any time while the breach of the radius restriction continues. For purposes of this Section 8.5, the term Tenant shall include Tenant, the Guarantor, that being The New York Restaurant Group, L.L.C., and all of their respective successors and assigns. The obligations of the Guarantor are contained in the Lease Guarantee, a copy of which is attached hereto as Exhibit L.

Other Operations. If during the Lease Term Tenant directly or indirectly operates, manages or has any interest whatsoever in any other 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 I 1.1 hereof within five (5) miles of any boundary line of the Basic Lease Provisions within Center (the radius set forth in Section U of the Basic Lease Provisions“Radius Area”), 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 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 operates, manages or has such interest in any such store or business within such radiusarea (a “Radius Violation”), one hundred then, at Landlord’s option, either (i) Tenant’s Effective Rent (as defined below) shall be automatically increased by fifty percent (10050%) of all Gross Sales made from any calculated on a per diem basis for so long as the Radius Violation continues, such other store increase representing liquidated damages and not a penalty or business shall be included in the computation of Gross Sales for the purpose of determining Percentage Rent under this Lease as though said Gross Sales had actually been made at, in or from the Premises. Landlord shall have all rights of inspection of books and records with respect to such store or business as it has with respect to the Premises. The inclusion of (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 is intended as a reasonable estimate though said Gross Sales and liquidation 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 Landlord's damages because inspection of Tenant's breach of the above stated radius restriction books and records with respect to such stores or businesses as a settlement of the actual damages that might arise because of such breach. The parties agree that these damages are reasonable, bear significant relation it has with respect to the actual damages that Premises; and Tenant shall furnish to Landlord might sustain, which damages Tenant such reports with respect to Gross Sales and Landlord agree would be uncertain and difficult to prove, and is not a penalty for Tenant's breach. The inclusion of the sales made Adjusted Gross Sales from such other store in or business as it is herein required to furnish with respect to 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 termination of this Lease or Tenant's right to possession as described in Article XVIII, which Landlord may pursue at any time while the breach of the radius restriction continues. For purposes of this Section 8.5, the term Tenant shall include Tenant, the Guarantor, that being The New York Restaurant Group, L.L.C., and all of their respective successors and assigns. The obligations of the Guarantor are contained in the Lease Guarantee, a copy of which is attached hereto as Exhibit L.Premises.

Other Operations. If during the Lease Term Tenant 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 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 I 1.1 hereof within ten (10) air miles of any boundary line of the Basic Lease Provisions within the radius set forth in Section U of the Basic Lease ProvisionsCenter, it will injure Landlord's ’s ability and right to receive Percentage Rent (such ability and right being a major consideration for this LeaseLease 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 radiusarea (a “Radius Violation”), one hundred then, at Landlord’s option, either (i) Tenant’s Effective Rent (as defined below) shall be automatically increased by fifty percent (10050%) of all Gross Sales made from any calculated on a per diem basis for so long as the Radius Violation continues, such other store increase representing liquidated damages and not a penalty or business shall be included in the computation of Gross Sales for the purpose of determining Percentage Rent under this Lease as though said Gross Sales had actually been made at, in or from the Premises. Landlord shall have all rights of inspection of books and records with respect to such store or business as it has with respect to the Premises. The inclusion of (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 is intended as a reasonable estimate though said Gross Sales and liquidation 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 Landlord's damages because inspection of Tenant's breach of the above stated radius restriction books and records with respect to such stores or businesses as a settlement of the actual damages that might arise because of such breach. The parties agree that these damages are reasonable, bear significant relation it has with respect to the actual damages that Premises; and Tenant shall furnish to Landlord might sustain, which damages Tenant such reports with respect to Gross Sales and Landlord agree would be uncertain and difficult to prove, and is not a penalty for Tenant's breach. The inclusion of the sales made Adjusted Gross Sales from such other store in or business as it is herein required to furnish with respect to the computation of Gross Sales for Premises. Notwithstanding anything herein to the purpose of determining Percentage Rent under this Lease contrary, the trade radius restriction shall not be deemed permission for Tenant apply to continue to breach Tenant’s stores currently in existence within the trade 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 termination at the time of the execution of this Lease or Tenant's right to possession as described in Article XVIII, which Landlord may pursue at any time while the breach of the radius restriction continues. For purposes of this Section 8.5, the term Tenant shall include Tenant, the Guarantor, that being The New York Restaurant Group, L.L.C., and all of their respective successors and assigns. The obligations of the Guarantor are contained in the Lease Guarantee, a copy of which is attached hereto as Exhibit L.Lease.

Other Operations. If during the Lease Term Tenant 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 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 I 1.1 hereof within thirty (30) air miles of any boundary line of the Basic Lease Provisions within the radius set forth in Section U of the Basic Lease ProvisionsCenter, it will injure Landlord's ’s ability and right to receive Percentage Rent (such ability and right being a major consideration for this LeaseLease 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 radiusarea (a “Radius Violation”), one hundred then, at Landlord’s option, either (i) Tenant’s Effective Rent (as defined below) shall be automatically increased by fifty percent (10050%) of all Gross Sales made from any calculated on a per diem basis for so long as the Radius Violation continues, such other store increase representing liquidated damages and not a penalty or business shall be included in the computation of Gross Sales for the purpose of determining Percentage Rent under this Lease as though said Gross Sales had actually been made at, in or from the Premises. Landlord shall have all rights of inspection of books and records with respect to such store or business as it has with respect to the Premises. The inclusion of (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 is intended as a reasonable estimate though said Gross Sales and liquidation 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 Landlord's damages because inspection of Tenant's breach of the above stated radius restriction books and records with respect to such stores or businesses as a settlement of the actual damages that might arise because of such breach. The parties agree that these damages are reasonable, bear significant relation it has with respect to the actual damages that Premises; and Tenant shall furnish to Landlord might sustain, which damages Tenant such reports with respect to Gross Sales and Landlord agree would be uncertain and difficult to prove, and is not a penalty for Tenant's breach. The inclusion of the sales made Adjusted Gross Sales from such other store in or business as it is herein required to furnish with respect to the computation of Gross Sales for Premises. Notwithstanding anything herein to the purpose of determining Percentage Rent under this Lease contrary, the trade radius restriction shall not be deemed permission for Tenant apply to continue to breach Tenant’s stores currently in existence within the trade 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 termination at the time of the execution of this Lease or Tenant's right to possession as described in Article XVIII, which Landlord may pursue at any time while the breach of the radius restriction continues. For purposes of this Section 8.5, the term Tenant shall include Tenant, the Guarantor, that being The New York Restaurant Group, L.L.C., and all of their respective successors and assigns. The obligations of the Guarantor are contained in the Lease Guarantee, a copy of which is attached hereto as Exhibit L.Lease.

Other Operations. If during the Lease Term Tenant 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 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 I 1.1 hereof within any of the Basic Lease Provisions following: (1) Thirty-nine (39) air miles, measured in any direction from the boundaries of the parcel 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 radius set forth in Section U geographic scope of the Basic Lease Provisionsradius; and (2) Manhattan, it will injure Landlord's ’s ability and right to receive Percentage Rent (such ability and right being a major consideration for this LeaseLease 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 radiusarea (a “Radius Violation”), one hundred then, at Landlord’s option, either (i) Tenant’s Effective Rent (as defined below) shall be automatically increased by fifty percent (10050%) of all Gross Sales made from any calculated on a per diem basis for so long as the Radius Violation continues, such other store increase representing liquidated damages and not a penalty or business shall be included in the computation of Gross Sales for the purpose of determining Percentage Rent under this Lease as though said Gross Sales had actually been made at, in or from the Premises. Landlord shall have all rights of inspection of books and records with respect to such store or business as it has with respect to the Premises. The inclusion of (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 is intended as a reasonable estimate though said Gross Sales and liquidation 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 Landlord's damages because inspection of Tenant's breach of the above stated radius restriction books and records with respect to such stores or businesses as a settlement of the actual damages that might arise because of such breach. The parties agree that these damages are reasonable, bear significant relation it has with respect to the actual damages that Premises; and Tenant shall furnish to Landlord might sustain, which damages Tenant such reports with respect to Gross Sales and Landlord agree would be uncertain and difficult to prove, and is not a penalty for Tenant's breach. The inclusion of the sales made Adjusted Gross Sales from such other store in or business as it is herein required to furnish with respect to the computation of Gross Sales for Premises. Notwithstanding anything herein to the purpose of determining Percentage Rent under this Lease contrary, the trade radius restriction shall not be deemed permission for Tenant apply to continue to breach Tenant’s stores currently in existence within the trade 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 termination at the time of the execution of this Lease or Tenant's right to possession as described in Article XVIII, which Landlord may pursue at any time while the breach of the radius restriction continues. For purposes of this Section 8.5, the term Tenant shall include Tenant, the Guarantor, that being The New York Restaurant Group, L.L.C., and all of their respective successors and assigns. The obligations of the Guarantor are contained in the Lease Guarantee, a copy of which is attached hereto as Exhibit L.Lease.

Other Operations. If Tenant hereby agrees that if during the Term Lease Term, Tenant or any entity controlling, controlled by or under common control with Tenant (any of the 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 store business located in Cxxxx County, Nevada (a) based in any material respect upon the concept, décor, theme or business operated under the same trade name as design of the Premises for or (b) which in any way uses a purpose or business similar to or in competition with all or any part of the business permitted under Section I of the Basic Lease Provisions within the radius set forth in Section U of the Basic Lease ProvisionsRequired Trade Name (each a “Competing Establishment”), it such Competing Establishment will injure Landlord's ’s ability and right to receive Percentage Rent (such ability and right being a major consideration for this Lease). Accordingly, if Tenant Tenant, including Tenant’s officers and/or directors listed in Exhibit “F”, directly or indirectly operates, manages or has any such interest in any store Competing Establishment, Landlord, at its option may terminate this Lease pursuant to Article XVII of the Lease or business within such radius, elect to have one hundred percent (100%) of all Gross Sales sales made from any such other store or business shall be Competing Establishment included in the computation of Gross Sales for the purpose of determining Percentage Rent under this Lease as though said Gross Sales had actually been made at, in or from the Premises. Tenant hereby agree that Landlord shall have all rights of inspection of books and records with respect to any such store or business Competing Establishment as it Landlord has with respect to the Premises. The inclusion of one hundred percent (100%) of all sales made from any ; and Tenant shall furnish to Landlord such other store or business in the computation of reports with respect to Gross Sales for the purpose of determining Percentage Rent under this Lease from such Competing Establishment as Tenant is intended as a reasonable estimate and liquidation 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, bear significant relation herein required to furnish with respect to the actual damages that Landlord might sustain, which damages Tenant and Landlord agree would be uncertain and difficult to prove, and 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 termination of this Lease or Tenant's right to possession as described in Article XVIII, which Landlord may pursue at any time while the breach of the radius restriction continues. For purposes of this Section 8.5, the term Tenant shall include Tenant, the Guarantor, that being The New York Restaurant Group, L.L.C., and all of their respective successors and assigns. The obligations of the Guarantor are contained in the Lease Guarantee, a copy of which is attached hereto as Exhibit L.Premises.