Common use of Right of Re-Entry and Power of Termination Clause in Contracts

Right of Re-Entry and Power of Termination. 7.2.3.1 If (a) a notice of default, notice of termination, or other demand under the Lease is ever issued by Landlord with respect to any unperformed obligation under the Lease for which Landlord is entitled (following any applicable notice and cure period) under the Lease to terminate the Lease, and (b) Assignee has failed to cure such default or perform such obligation prior to the expiration of the later of (i) any applicable cure or performance period given by Landlord or (ii) any applicable cure or performance period otherwise applicable under the Lease, then at any time thereafter and continuing so long as such default or demand remains uncured or unperformed by Assignee (or if such default has been cured by Assignor, so long as Assignee has not made full reimbursement with accrued interest), Assignor shall have a right of re-entry and power of termination (i.e., to assume all rights and obligations of Tenant under the Lease and re-enter and regain possession of the Premises and ownership of the Tenant Fixtures) (the “Power of Termination”), and upon Assignor’s issuance of a notice of election of re-entry, Assignee shall promptly, and in any event no later than 30 days later, vacate and surrender the Premises to Assignor in the condition required under the Lease had the same expired pursuant to its terms. 7.2.3.2 Assignor’s exercise of its Power of Termination shall as of the date on which the Premises are surrendered to or recovered by Assignor, (a) terminate and cancel the Assignment of the Lease, with Assignor assuming all rights and obligations of Tenant thereafter accruing under the Lease; and (b) terminate Assignee’s ownership of the Tenant Fixtures and transfer ownership of the same to Assignor as set forth in Section 4.2 above. Assignor may use statutory unlawful detainer procedures or other legal proceedings to enforce such right of re-entry and to re-gain possession of the Premises. 7.2.3.3 Notwithstanding anything to the contrary, in the event Assignor exercises its Power of Termination, Assignor shall be entitled to recover from Assignee: (i) the award by a court having jurisdiction thereof of the amount by which the unpaid rent and other charges and adjustments called for under the Lease for the balance of the term exceeds the amount of such loss for the same period that Assignee proves could be reasonably avoided (with the burden of such proof being upon Assignee), plus (ii) any leasing commission and tenant improvements costs actually paid or likely needing to be paid by Assignor to obtain a subtenant or assignee for the unexpired term of the Lease. The phrase “the amount of such loss for the same period that Assignee proves could be reasonably avoided” means the reasonable, market rent and/or other compensation that Assignor could reasonably obtain by subleasing or assigning the space to a third party during the unexpired term of the lease (and Assignee shall be entitled to such offset even if Assignor exercises its Power of Termination and elects to use the Premises thereafter for its own use). 7.2.3.4 If Assignor exercises its Power of Termination, Assignee agrees to pay Assignor the cost of recovering possession of the Premises, the expenses of reletting, and any other costs or damages arising out of Assignee’s default, including without limitation the costs of removing persons and property from the Premises, the costs of preparing or altering the Premises for reletting, broker’s commissions, and attorneys’ fees. 7.2.3.5 If Assignor exercises its Power of Termination, Assignor agrees to use reasonable efforts to mitigate its damages with respect to the same.