TiVo 2009 Annual Report Download - page 151

(e) Appraisal Process.
i) Landlord and Tenant shall each appoint one independent, unaffiliated real estate broker (referred to herein as an "appraiser" even
though only a broker) who has been active over the five (5) year period ending on the date of such appointment in the leasing of office space in the
Comparison Area. Each such appraiser will be appointed within thirty (30) days after the Outside Agreement Date.
ii) The two (2) appraisers so appointed will within fifteen (15) days of the date of the appointment of the last appointed appraiser agree
upon and appoint a third appraiser who shall be qualified under the same criteria set forth herein above for qualification of the initial two (2) appraisers.
iii) The determination of the appraisers shall be limited solely to the issue of whether Landlord's or Tenant's last proposed (as of the
Outside Agreement Date) new Base Rent for the Expansion Space is the closest to the actual new Base Rent for the Expansion Space as determined by the
appraisers, taking into account the requirements of Subparagraph (c) and this Subparagraph (e) regarding same.
iv) The three (3) appraisers shall within thirty (30) days of the appointment of the third appraiser reach a decision as to whether the
parties shall use Landlord's or Tenant's submitted new Base Rent, and shall notify Landlord and Tenant thereof.
v) The decision of the majority of the three (3) appraisers shall be binding upon Landlord and Tenant and neither party will have the right
to reject the determination or undo the exercise of the Extension Option. The cost of each party's appraiser shall be the responsibility of the party selecting
such appraiser, and the cost of the third appraiser (or arbitration, if necessary) shall be shared equally by Landlord and Tenant.
vi) If either Landlord or Tenant fails to appoint an appraiser within the time period in Subparagraph (e)(i) herein above, the appraiser
appointed by one of them shall reach a decision, notify Landlord and Tenant thereof and such appraiser's decision shall be binding upon Landlord and Tenant
and neither party will have the right to reject the determination or undo the exercise of the Extension Option.
vii) If the two (2) appraisers fail to agree upon and appoint a third appraiser, both appraisers shall be dismissed and the matter to be
decided shall be forthwith submitted to binding arbitration under the provisions of the American Arbitration Association.
(f) In the event that the new Base Rent is not established prior to end of the Expansion Space Term, the Base Rent immediately payable for the
Expansion Space at the commencement of the Option Term shall be the Base Rent determined by Landlord. Notwithstanding the above, once the fair market
rental is determined in accordance with this section, the parties shall settle any overpayment on the next Base Rent payment date falling not less than thirty
(30) days after such determination. Notwithstanding the foregoing, in no event shall the Base Rent payable during the Option Term be less than the Base Rent
in effect immediately prior to the Option Term.
9. Option.
(a) As used in this Section 9, the word "Option" means the Extension Option pursuant to Section 8 herein.
(b) The Option is personal to the original Tenant executing this Amendment and may be exercised only by the original Tenant executing this
Amendment while occupying the entire Expansion Space and without the intent of thereafter assigning the Amended Lease or subletting the Expansion Space
and may not be exercised or be assigned, voluntarily or involuntarily, by any person or entity other than the original Tenant executing this Amendment. The
Option is not assignable separate and apart from this Amendment, nor may the Option be separated from this Lease in any manner, either by reservation or
otherwise.
(c) Tenant shall have no right to exercise the Option, notwithstanding any provision of the grant of Option to the contrary, and Tenant's exercise
of the Option may be nullified by Landlord and deemed of no further force or effect, if (i) Tenant shall be in default of any monetary obligation or material
non-monetary obligation under the terms of the Amended Lease as of Tenant's exercise of the Option or at any time after the exercise of such Option and prior
to the commencement of the Option event, or (ii) Landlord has given Tenant two (2) or more notices of default, whether or not such defaults are subsequently
cured, during any twelve (12) consecutive month period.
10. Assignment and Subletting of the Expansion Space. Tenant's rights and responsibilities to assign the Amended Lease with respect to the Expansion
Space or sublease the Expansion Space shall be governed by Article 14 of the Original Lease; provided, however, Section 14.6 of the Original Lease shall be
modified only as it relates to the Expansion Space to provide that Tenant shall pay to Landlord fifty percent (50%) of any Transfer Premium received by
Tenant from a Transferee.
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