Common use of Exclusive Clause in Contracts

Exclusive. So long as the originally named Tenant or an assignee or sublessee pursuant to a Permitted Transfer is continuously and without interruption conducting business operations within the entire Additional Premises for the Permitted Use of the Additional Premises and provided that there has not occurred a Default, except for and any lease, license or concession agreement executed prior to the Amendment Effective Date, and any amendment, modification, extension, expansion, renewal or replacement thereof, Landlord shall not during the Lease Term, lease or rent any other premises within the portions of the Project presently owned by Landlord to a tenant or occupant who will use such for a daycare facility; provided, however, the foregoing restriction shall not apply to: (a) an office tenant/occupant that provides day-care services for the children of its employees, (b) a children’s activity center (e.g. “My Gym”), or (c) a strictly after-care (after normal school hours) children’s facility. In the event of a breach by Landlord of its obligations contained in this Paragraph 11, which breach is not cured by Landlord pursuant to the terms of the Lease, Tenant shall have the right, as its sole and exclusive remedy, to bring an action for specific performance and/or obtaining a temporary or permanent injunction against Landlord with respect to such uncured breach. In the event of a violation of the exclusive rights set forth in this Paragraph 10 by a third party within the Project, Landlord shall be deemed to have satisfied its obligations hereunder so long as it uses all commercially reasonable efforts to enforce Tenant’s exclusive rights. No breach of this Paragraph 10 shall be deemed to have arisen until such time as Landlord has received written notice from Tenant of an alleged violation and Landlord has failed to remedy the violation in accordance with the terms of the Lease and this Amendment. In the event that any third party and/or governmental body, agency, branch, commission, authority, subdivision, bureau or department commences any action or proceeding against Landlord before any court of competent jurisdiction or administrative tribunal (collectively referred to as an “Action”) arising from the restriction set forth in this Paragraph 10, and it is finally determined in such Action that the restriction set forth in this Paragraph 10 is in violation of law, then the restriction set forth in this Paragraph 10 shall be automatically cancelled and revoked. Landlord agrees to notify Tenant of any Action commenced as stated above and shall permit Tenant to defend such Action provided (i) Tenant agrees to hold Landlord and any Landlord’s lender harmless and indemnify Landlord and any Landlord’s lender for all costs, expenses, damages and judgments which they might incur, expend or be liable for in defending the legality and enforceability of the restriction set forth in Paragraph 10, and (ii) Landlord receives adequate reasonable assurance of Tenant’s financial willingness and ability to hold Landlord and any Landlord’s lender harmless and indemnify Landlord or any Landlord’s lender. Within fourteen (14) days of Landlord notifying Tenant of the institution of the Action, Tenant, at its sole option, may elect in writing by notice to Landlord, to either waive the provisions set forth in the restrictions set forth in this Paragraph 10 with respect to the Action, or to defend the Action. Landlord in its reasonable business judgment shall determine if the aforesaid assurances are satisfactory. It is understood and agreed that Landlord’s defense may be undertaken by counsel selected by Tenant, but approved by Landlord, which approval shall not be unreasonably withheld or delayed. Landlord shall have no obligation to enforce the rights granted to Tenant under this Paragraph 10 unless and until Landlord receives written notice of an Action. Landlord shall not be deemed in breach of this Paragraph 10 so long as Landlord has commenced and pursues reasonable efforts to protect Tenant’s rights hereunder.

Exclusive. So long as Tenant is open for business and operating in the originally named Tenant or an assignee or sublessee pursuant to a Permitted Transfer is continuously and without interruption conducting business operations within the entire Additional Demised Premises for the Permitted Use of the Additional Premises and provided that there has not occurred a Default, except for and any lease, license or concession agreement executed prior to the Amendment Effective Date, and any amendment, modification, extension, expansion, renewal or replacement thereofUse, Landlord shall agrees not during to enter into any lease for space in the Lease TermShopping Center expressly granting to any tenant as its primary use the right to operate a residential realty office, lease or rent any other premises within at the portions of the Project presently owned by Landlord to a tenant or occupant who will use such for a daycare facility; provided, however, the foregoing Shopping Center. This restriction shall not apply to: to (ai) an office tenant/occupant that provides day-care services for any tenant leasing greater than 5,000 square feet of space in the children of its employeesShopping Center, (bii) a children’s activity center leases in effect at the time of execution of this Lease, (e.g. “My Gym”iii) existing tenants and their successors, assigns, or replacement tenants operating under the same or similar use (regardless of size or location within the Shopping Center of such replacement tenant), (iv) any change of use where such occupant had rights to such change of use without Landlord's consent, whether by act or (c) a strictly after-care (after normal school hours) children’s facility. In the event decision of a breach court of law or otherwise, (v) any parcel of land which is not under Landlord’s ownership and control, (vi) any situation where unenforceable by Governing Law. The obligation of Landlord of its obligations contained in this Paragraph 11Section shall expire upon any default by Tenant of any of the terms, which breach is not cured provisions, conditions or covenants of this Lease, including holding over beyond the term of this Lease. Tenant agrees to indemnify and hold harmless Landlord from any and all expenses and damages incurred by Landlord pursuant if a suit brought against Landlord alleges that this Section is violative of another tenant’s lease or any applicable law. Tenant shall give Landlord written notice of any alleged breach of this provision, upon which Landlord shall have 60 days to cure any breach. Should any breach of this provision remain uncured upon the terms expiration of the Lease60 day cure period, Tenant’s sole remedy shall be to terminate this Lease upon written notice to Landlord within 5 days after the expiration of the 60 day cure period, with such notice containing documentation of a material deterioration of Tenant’s gross sales as a direct result of the alleged violation of this section. Notwithstanding the foregoing, Tenant shall have the right, as its sole and exclusive remedy, not be entitled to bring an action for specific performance and/or obtaining a temporary or permanent injunction against Landlord with respect to such uncured breach. In the event of a violation exercise any of the exclusive rights set forth remedies described in this Paragraph 10 by a third party within the Project, Landlord shall be deemed to have satisfied its obligations hereunder so long as it uses all commercially reasonable efforts to enforce Tenant’s exclusive rights. No breach of this Paragraph 10 shall be deemed to have arisen until such time as Landlord has received written notice from Tenant of an alleged violation and Landlord has failed to remedy the violation in accordance with the terms of the Lease and this Amendment. In the event that any third party and/or governmental body, agency, branch, commission, authority, subdivision, bureau or department commences any action or proceeding against Landlord before any court of competent jurisdiction or administrative tribunal (collectively referred to as an “Action”) arising from the restriction set forth in this Paragraph 10, and it is finally determined in such Action that the restriction set forth in this Paragraph 10 is in violation of law, then the restriction set forth in this Paragraph 10 shall be automatically cancelled and revoked. Landlord agrees to notify Tenant of any Action commenced as stated above and shall permit Tenant to defend such Action provided (i) Tenant agrees to hold Landlord and any Landlord’s lender harmless and indemnify Landlord and any Landlord’s lender for all costs, expenses, damages and judgments which they might incur, expend or be liable for in defending the legality and enforceability of the restriction set forth in Paragraph 10, and (ii) Landlord receives adequate reasonable assurance of Tenant’s financial willingness and ability to hold Landlord and any Landlord’s lender harmless and indemnify Landlord or any Landlord’s lender. Within fourteen (14) days of Landlord notifying Tenant of the institution of the Action, Tenant, at its sole option, may elect in writing by notice to Landlord, to either waive the provisions set forth in the restrictions set forth in this Paragraph 10 with respect to the Action, or to defend the Action. Landlord in its reasonable business judgment shall determine if the aforesaid assurances are satisfactory. It is understood and agreed that Landlord’s defense may be undertaken by counsel selected by Tenant, but approved by Landlord, which approval shall not be unreasonably withheld or delayed. Landlord shall have no obligation to enforce the rights granted to Tenant under this Paragraph 10 unless and until Landlord receives written notice of an Action. Landlord shall not be deemed in breach of this Paragraph 10 Section so long as Landlord has commenced and pursues reasonable efforts is diligently attempting to protect Tenant’s rights hereundercause a violating tenant to cease activity which violates this Section.