Consent To Sublease Page 3
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18money, services, property and any other thing of value such as payment of costs, cancellation of
indebtedness, discounts, rebates and the like. Master Lessor shall have the rights to audit and
review Sublessor's records relating to the Sublease and the rent paid and payable pursuant
thereto, at any time and from time to time, during normal business hours. In the event that any
such audit and review reflects that Master Lessor has been paid less than the amount required to
be paid to Master Lessor pursuant to
subparagraph 2(b)
belowthe Master
Lease, Sublessor shall
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be responsible for the cost of Master Lessor’s audit.
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(b)
Master Lessor shall be entitled to one hundred percent (100%) of the rent
payable by Sublessee to Sublessor pursuant to the Sublease in excess of the rent payable by
Sublessor to Master Lessor on account of the Subleased Premises, which sums shall be paid to
Master Lessor within five (5) days of the date the same are payable by Sublessee. In the event
that the Master Lease provides for the payment to Master Lessor of a percentage of the sales
made at or from the Leased Premises (whether gross sales or determined pursuant to some other
formula), the sales by Sublessee in the Subleased Premises shall be included in the sales of
Sublessor for such purpose, and Sublessor shall specifically require that Sublessee comply with
all of the terms and provisions of the Master Lease with respect to such sales, including without
limitation the maintenance of records with respect to the same. Sublessor's failure to pay any
sums to Master Lessor as and when set forth in this subparagraph shall be an event of default
pursuant to the Master Lease, entitling Master Lessor to all remedies available to a landlord
against a defaulting tenant, including without limitation those set forth in Article ___ of the
Master Lease. Any rent or other consideration which is to be passed through to Master Lessor
by Sublessor pursuant to this subparagraph shall be paid to Master Lessor in cash, irrespective of
the form in which received by Sublessor from Sublessee. In the event that any rent or other
consideration received by Sublessor from Sublessee is in a form other than cash, Sublessor shall
pay to Master Lessor in cash the fair market value of such consideration, as determined by
Master Lessor, whose determination shall be conclusive. Master Lessor and Sublessor agree that
the payment required by this subparagraph represents payment for Master Lessor's property
rights in and to the leasehold estate created by the Master Lease and constitutes additional rent
due and payable by Sublessor pursuant to the Master Lease.
(c)
Sublessor
hereby
ratifies and confirms its obligations under the Master Lease and acknowledges
that, to
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Sublessor’s knowledge,
Master Lessor is not in default under the Master Lease
and, to
Sublessor’s knowledge,
that Sublessor has no existing claim against Master Lessor or right of
offset or defense against enforcement by Master Lessor of the obligations of Sublessor under the
Master Lease.
3.
Representations, Warranties and Covenants of Sublessee. As an inducement to
obtain the consent of Master Lessor to the Sublease, Sublessee hereby represents, warrants and
covenants to and with Master Lessor as follows, which representations, warranties and covenants
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This representation and these audit rights are acceptable to tenant/subtenant if and only if
Master Lessor reserved the right to excess rental under the Master Lease. Negotiating a higher
market rent as a condition to consent is not reasonable. If the Master Lease includes the right to
excess rental, this provision could be allowed to remain to confirm what that spilt is.
2
The Master Lease should speak for itself in this regard.
3
Master Lessor may counter with a “best knowledge” standard.
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