Common use of Acceleration Fee Clause in Contracts

Acceleration Fee. In the event Tenant exercises its Second Acceleration Option for Expansion Premises, Tenant shall pay Landlord a fee (the “Expansion Premises Second Acceleration Fee”), which shall not be construed as a penalty, in an amount equal to Landlord’s transaction costs related to the portion of the Expansion Premises to which Tenant’s Second Acceleration Option for Expansion Premises applies (consisting exclusively of a proportionate share of Landlord’s Expansion Premises Contribution [calculated by multiplying the amount of Landlord’s Expansion Premises Contribution by the square footage of the Fourteenth Floor Expansion Premises and/or the Fifteenth Floor Expansion Premises, whichever is the subject of the Second Acceleration Option for Expansion Premises, and dividing by 34,335], the Fourteenth Floor Expansion Premises Gross Abatement (if the portion of the Expansion Premises to which Tenant’s Second Acceleration Option for Expansion Premises applies is or includes the Fourteenth Floor Expansion Premises), and broker commissions), as such transaction costs are remaining unamortized as of the Expansion Premises Second Accelerated Termination Date. Landlord’s transaction costs related to the portion of the Expansion Premises to which the Second Acceleration Option for Expansion Premises applies shall be amortized over the period commencing on July 1, 2007 and ending on the Expansion Premises Second Accelerated Termination Date including interest thereon at an interest rate of eight percent (8%) per annum. If Tenant fails to pay either installment of the Expansion Premises Second Acceleration Fee in accordance with the foregoing, time being of the essence, Landlord may elect, upon notice to Tenant to declare the Expansion Premises Second Acceleration Notice null and void, in which event the Lease shall continue in full force and effect with respect to the portion of the Expansion Premises to which the Second Acceleration Option for Expansion Premises applies as if Tenant had not exercised such Second Acceleration Option for Expansion Premises.

Acceleration Fee. In the event Tenant exercises its Second First Acceleration Option for Expansion Premises, Tenant shall pay Landlord a fee (the “Expansion Premises Second First Acceleration Fee”), which shall not be construed as a penalty, in an amount equal to Landlord’s transaction costs related to the portion of the Expansion Premises to which Tenant’s Second First Acceleration Option for Expansion Premises applies (consisting exclusively of a proportionate share of Landlord’s Expansion Premises Contribution [calculated by multiplying the amount of Landlord’s Expansion Premises Contribution by the square footage of the Fourteenth Floor Expansion Premises and/or or the Fifteenth Floor Expansion Premises, whichever is the subject of the Second First Acceleration Option for Expansion Premises, and dividing by 34,335], the Fourteenth Floor Expansion Premises Gross Abatement (if the portion of the Expansion Premises to which Tenant’s Second First Acceleration Option for Expansion Premises applies is or includes the Fourteenth Floor Expansion Premises), and broker commissions), as such transaction costs are remaining unamortized as of the Expansion Premises Second First Accelerated Termination Date. Landlord’s transaction costs related to the portion of the Expansion Premises to which the Second First Acceleration Option for Expansion Premises applies shall be amortized over the period commencing on July 1, 2007 and ending on the Expansion Premises Second First Accelerated Termination Date including interest thereon at an interest rate of eight percent (8%) per annum. If Tenant fails to pay either installment of the Expansion Premises Second First Acceleration Fee in accordance with the foregoing, time being of the essence, Landlord may elect, upon notice to Tenant to declare the Expansion Premises Second First Acceleration Notice null and void, in which event the Lease shall continue in full force and effect with respect to the portion of the Expansion Premises to which the Second First Acceleration Option for Expansion Premises applies as if Tenant had not exercised such Second First Acceleration Option for Expansion Premises.

Acceleration Fee. In Tenant shall pay to Landlord, as consideration for the event Tenant exercises its Second acceleration of the expiration date of the Lease as described herein and not as a penalty, the amount (the “Acceleration Option for Expansion PremisesFee”) of $1,980,980.42. The Acceleration Fee shall be payable as follows: (a) within one (1) business day following the full execution and delivery of this Amendment, Tenant shall pay Landlord a fee (the “Expansion Premises Second Acceleration Fee”)to Landlord, which shall not be construed as a penaltyby wire transfer of immediately available funds to an account designated by Landlord, in an amount equal to $795,980.42; (b) effective as of the date of full execution and delivery of this Amendment, the $50,000.00 Remaining Security Deposit (as defined in Section IV.D of the Fourth Amendment) shall be applied by Landlord to the payment of the Acceleration Fee and Tenant hereby waives any and all of its right, title and interest in and to the Remaining Security Deposit and authorizes Landlord to apply the entire amount thereof to the Acceleration Fee; and (c) effective as of the date of full execution and delivery of this Amendment, notwithstanding anything in the Lease to the contrary, Tenant hereby irrevocably authorizes Landlord to draw the entire $1,135,000.00 face amount of the Letter of Credit (defined in Section IV.B of the Fourth Amendment) and to apply the proceeds thereof to the Acceleration Fee. Tenant hereby confirms and agrees that Landlord’s transaction costs beneficiary’s statement accompanying such draw on the Letter of Credit may be in the following form: “This draw in the amount of One Million One Hundred Thirty-Five Thousand U.S. Dollars ($1,135,000.00) under your Irrevocable Standby Letter of Credit No. 3085133 represents funds that we are entitled to draw pursuant to the terms of that certain lease by and between CA-Foothill Research Center Limited Partnership, a Delaware limited partnership, as landlord, and Affymax, Inc., a Delaware corporation (as successor in interest to Affymax Research Institute, a California corporation), as tenant, and/or any amendment to the lease or any other agreement between such parties related to the portion lease”, and that such statement is true and correct. If Landlord for any reason is unable to draw the full amount of $1,135,000.00 upon the Letter of Credit, or if such draw is not honored for any reason within five (5) days after Landlord’s submittal of its draw request, Tenant shall pay any resulting deficiency in payment of the Expansion Premises to which Tenant’s Second Acceleration Option for Expansion Premises applies (consisting exclusively of a proportionate share of Landlord’s Expansion Premises Contribution [calculated by multiplying the amount of Landlord’s Expansion Premises Contribution by the square footage of the Fourteenth Floor Expansion Premises and/or the Fifteenth Floor Expansion Premises, whichever is the subject of the Second Acceleration Option for Expansion Premises, and dividing by 34,335], the Fourteenth Floor Expansion Premises Gross Abatement (if the portion of the Expansion Premises to which Tenant’s Second Acceleration Option for Expansion Premises applies is or includes the Fourteenth Floor Expansion Premises), and broker commissions), as such transaction costs are remaining unamortized as of the Expansion Premises Second Accelerated Termination Date. Landlord’s transaction costs related to the portion of the Expansion Premises to which the Second Acceleration Option for Expansion Premises applies shall be amortized over the period commencing on July 1, 2007 and ending on the Expansion Premises Second Accelerated Termination Date including interest thereon at an interest rate of eight percent (8%) per annum. If Tenant fails to pay either installment of the Expansion Premises Second Acceleration Fee in accordance with the foregoing, time being of the essence, Landlord may elect, upon notice to Tenant to declare the Expansion Premises Second Acceleration Notice null and void, in which event the Lease shall continue in full force and effect with respect to the portion of the Expansion Premises to which the Second Acceleration Option for Expansion Premises applies as if Tenant had not exercised such Second Acceleration Option for Expansion Premiseswithin five (5) business days after demand.